FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5266/FAX 303-844-5268

January 20, 2012

DECISION

Appearances:              Beau Ellis, Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;

Wayne Bachmann, Bachmann Sand & Gravel, Winner, South Dakota, for Respondent.

Before:                        Judge Miller

            These cases are before me upon petitions for assessment of civil penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against Bachmann Sand & Gravel (“BSG”), at its Winner, South Dakota mine (the “mine”), pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). This matter involves two dockets with six alleged violations, and a total proposed penalty of $8,686.00. The parties presented testimony and documentary evidence at the hearing held in Rapid City, South Dakota that commenced on December 7, 2011. At hearing, the Secretary vacated one citation, and modified two 104(d)(2) orders to 104(a) citations. The Secretary’s proposed penalties for the modified orders were recalculated and are set forth below. At the conclusion of the hearing, I issued a decision on the record. That decision, with appropriate edits and additions, is set forth below.

I. LEGAL STANDARDS

            A significant and substantial (“S&S”) violation is described in section 104(d)(1) of the Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The Commission has explained that:

[i]n order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of danger to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

            The difficulty with finding a violation S&S normally comes with the third element of the Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance:

We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

This evaluation is made in consideration of the length of time that the violative condition existed prior to the citation and the time it would have existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc.,

6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

            Wayne Bachmann operates Bachmann Sand & Gravel in Winner, South Dakota. The mine is subject to regular inspections by the Secretary’s Mine Safety and Health Administration pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that BSG is the operator of the mine, that its operations affect interstate commerce, and that it is subject to the jurisdiction of the Mine Act. Jt. Ex. 1.

            Each of the citations in these cases were issued by Inspector Daniel Scherer, who has worked as a MSHA mine inspector since Sept 2006. Prior to becoming an inspector, Scherer worked in the mining industry for 16 years.

            BSG is a small sand and gravel operation, which produces mostly sand. The property contains a screening operation and stacking conveyor, as well as a pit wall and a trailer that is used as a weigh station. The mine operates intermittently but was in open status on October 20, 2009, the day the inspection commenced. When Inspector Scherer arrived at the mine property, he could not locate the operator or any employee. Given the distance that inspectors must travel and the fact that notice of an inspection may not be given to an operator, it is MSHA’s policy to attempt to contact mine owners and, if the owner cannot be contacted, to conduct inspections without anyone present. In this case, Inspector Scherer made several calls to Wayne Bachmann, the mine owner, without success. After making such attempts, he commenced his investigation. Shortly thereafter, a number of trucks driven by county employees arrived at the mine. The county employees began to operate the front end loader to load their own trucks and take away the sand. They explained to the inspector that they had received prior permission from the owner to be on the property and to load the sand onto their trucks in the event no one was present. Moreover, they indicated that Mr. Bachmann had been present the previous day loading the same trucks. Scherer observed that there were six county employees coming and going on the property. Mr. Bachmann did not arrive at the property to meet the inspector until the following day.

            After careful consideration of all of the testimony, and having viewed the witnesses during the course of the hearing, and taking into account the inspector’s unrebutted and credible testimony, I find Inspector Scherer to be a reliable and credible witness. I accept his assertions and testimony in all regards. Based on such, I find that the Secretary has established the fact of violation in each of the citations discussed below by a preponderance of the credible and probative evidence presented in this case.

a.         Order No. 6426224 (Docket No. CENT 2010-323-M)

            On October 20, 2009, Inspector Scherer issued Order No. 6426224 to BSG for a violation of section 56.14112(a)(1) of the Secretary’s regulations. The cited standard requires that “[g]uards shall be constructed and maintained to . . . withstand the vibration, shock, and wear to which they will be subjected during normal operation.” 30 C.F.R. § 56.14112(a)(1). The order alleges the following:

Two expanded metal guards on the west side of the Kolman stacker conveyor at the self cleaning tail pulley were not constructed and maintained to withstand the vibration, shock, and wear to which they were subjected. One guard was damaged and torn free on one end causing it to hang down presenting an opening 10 inches wide by 4 inches high within 5 inches of the tail pulley and the other guard had shifted presenting an opening 4 inches wide by 20 inches high within 7 inches of the tail pulley. A miner works in this area as needed for clean up and to grease & maintain the equipment. Based on continued mining operations this condition exposes miners to contact with the tail pulley and to entanglement and the loss of limbs. The mine owner, Wayne Bachmann has engaged in aggravated conduct constituting more than ordinary negligence in that he had damaged the guard when operating the front end loader and had allowed the condition to continue to exist, also the owner has been cited on the two previous inspections for guarding on this conveyor at the tail pulley. This violation is an unwarrantable failure to comply with a mandatory standard.

The inspector found that an injury was reasonably likely to occur, that the injury could be reasonably expected to be of a permanently disabling nature, that the violation was significant and substantial, that one person would be affected, and that the violation was the result of high negligence on the part of the operator. The Secretary originally proposed a civil penalty in the amount of $4,000.00. At hearing, the Secretary modified this order to a 104(a) citation with high negligence, resulting in a newly proposed penalty of $363.00.

            [This] citation was issued for two expanded metal guards at the west side of the Kolman stacker conveyer . . . [near] the self-cleaning tail pulley. Those guards were not constructed and maintained to withstand the vibration, shock and wear to which they were subjected. The Inspector explains in detail his observations in his citation, and Mr. Bachmann has indicated that the observations of the Inspector are correct, including that two openings[, created by missing or inadequately attached guards,] were present near the moving pulley. One [opening] was 10 inches wide by 4 inches high [and] within 5 inches of the tail pulley[, while the other opening] . . . was 4 inches wide by 20 inches high [and] within 7 inches of the tail pulley. [Both openings were large enough to reach into.]

. . .

            [The photographs in Secretary’s] Exhibit P-7. . . clearly show the condition of the pulley and the guards missing from that pulley. One of [the guards] is [hanging loose and] buried in the sand, and the other one [was missing and not on the machine, but] Mr. Bachmann later found [it]. . . . [T]he photographs [in]. . . [Secretary’s Exhibit] P-7, . . . are a good indication of the condition of those guards and those pulleys. [see Sec’y Ex. P-7, pp. 4 and 5.] The two areas are open[]. One of [the guards] was buried in the sand . . . . [Id. at p. 5].

. . .

            The [condition of the] guards that were . . . cited by Inspector Scherer [was] . . . obvious as he came up to the tail pulley. [(Tr. 42). One guard] . . . had been loose and hanging down[, while the other was missing entirely]. . . . [I]n Inspector Scherer’s view they had been that way the day before when [the mine] . . . was running. [(Tr. 32).] One of his observations included the color of the sand and the location of the [one] guard[. Based on the color of the sand, Scherer determined that the guards] had been in that condition for some time[,] and that they had not been knocked off, as Mr. Bachmann alleges, the day before. [(Tr. 33).]

            I credit Inspector Scherer’s testimony and find that the guards . . . [had] been in that condition for some time and that the Secretary has established, as required by the mandatory standard, that the guard was not constructed or maintained to withstand the vibration, shock and wear to which it was subjected during normal operations.

            While the belt was not operating at the time Inspector Scherer was there, it was clear that it had been operating the day before, and I find that it was operating with the guards in the condition as cited by Inspector Scherer. . . . I do not agree that the guards . . . had recently been knocked out of place by the loader[,] as alleged by Mr. Bachmann. I agree with Inspector Scherer that it was due to normal wear and tear and vibration and that the guards had been, over time, worn and somehow taken or moved on their own or by someone else from this particular area. The guard had shifted during working, and therefore I conclude that the Secretary has established a violation of Section 5614112[(a)(1)] as alleged by the Secretary.

            The evidence clearly shows that the pulley was not guarded, and the photograph taken by Inspector Scherer shows the [the one] guard was partially buried in the sand[, thereby] . . . exposing the moving machinery. I find the guard was not adequately maintained to withstand the vibration that it was subjected to.

            There is no dispute that the guard was somehow damaged and that the tail pulley was exposed in two places. The exposed area was large enough for someone’s hand to fit through. . . . [A]lthough the belt was not running at the time Inspector Scherer arrived, there is credible evidence that it had been operating the day before in the condition he observed.

            Inspector Scherer was concerned that someone’s hand or clothing could get caught in the self-cleaning tail pulley, and the Inspector determined that it was likely that someone would be injured based on this particular violation. [(Tr. 29-31).] The Inspector credibly testified that crushing injuries would occur if someone came in contact with the tail pulley, or[,] given the nature and location of the guard[,] someone could be caught on the sharp edges and either cut or trip in the sandy area around the tail pulley and be seriously injured. [Id.]

            The violation created a hazard of someone coming in contact with moving machine parts[.] . . . [T]here was [a] reasonable [likelihood] . . . that . . . an accident would occur given the fact that . . . people have to come into this area to grease the tail pulley [and] . . . adjust the belt, sometimes with the conveyer in operation. . . .

            The photograph[s] clearly show[] that the [general] area is very sandy, uneven ground and could easily lead to someone falling into the [subject] area[. Sec’y Ex. P-7, pp. 4and 5. Moveover,] . . . someone working in the area to clean the tail pulley could become entangled in the area. Therefore[,] I agree with Inspector Scherer that there is a reasonable likelihood that someone would be injured and that . . . [the] injury would be serious, causing a disabling or even fatal injury[.] . . . I find that the violation is significant and substantial . . . .[ ]

            Finally, this citation was issued with high negligence . . . [b]ased upon . . . the Inspector’s understanding that Bachmann had been cited for this violation before[.] . . . [This] is borne out by the exhibit submitted by the Secretary to show that this . . . [same] area of the tail pulley had been cited about a year prior to this in . . . September 2008. [(Tr. 36-38); Sec’y Ex. P-17.] This inspection was in October 2009 [and it was] . . .indeed the same area [that] had been cited [before.] Mr. Bachmann’s conversation with the Inspector indicated that he was aware that . . . the guards were missing, . . . that he believed that they should not have to be in place, that he should not be required to keep them in place[,] and [that] he didn’t find it a hazard because he was the only one working in the area and he knew that they were not in place.

            This [area] . . . does fill up with material. I understand that Mr. Bachmann has to remove the guard to clean it, but it is his responsibility to return those guards when they’re done. I agree with the Inspector’s determination that Mr. Bachmann was highly negligent[.] [T]he company had a duty to maintain the guards to withstand the vibration, wear and tear . . . [and] to return them if they took those guards off [to conduct any maintenance].

            After viewing the photographs of the guarding before and after the violation was issued, [Sec’y Ex. P-7, pp. 4-6] I find that . . . this violation was easily noticed by anyone, [i.e.,] that it was out in the open and would have been seen. . . . [I]n fact, Mr. Bachmann indicated to the Inspector that he knew those guards were off.[ ] . . . [T]herefore[,] I find that the negligence is high. . . . [B]ased upon the seriousness of the violation [and] someone getting caught in this moving tail pulley and being seriously injured, and the fact that Bachmann demonstrated high negligence,

I assess a $500 penalty for this violation.

(Tr. 113-119).

b.         Citation No. 6426225 (Docket No. CENT 2010-324-M)

            On October 20, 2009, Inspector Scherer issued Citation No. 6426225 to BSG for a violation of section 56.14132(a) of the Secretary’s regulations. The cited standard requires that “[m]anually-operated horns or other audible warning devices provided on self-propelled mobile equipment as a safety feature shall be maintained in functional condition.” 30 C.F.R. § 56.14132(a). The order alleges the following:

The backup alarm on the CAT 980C front end loader (SN 63X2069) had not been maintained in a functional condition and was not working when inspected. This front end loader is used to load out haul trucks in the stockpile area and to haul material from the pit walls to the hopper. Several haul trucks were operating near this front end loader and truck drivers were observed traveling in the area on foot. Based on continued mining operations this condition exposes the mobile equipment to collisions and the miners and mobile equipment operators in the area to crushing injuries from being run into or over.

The inspector found that an injury was reasonably likely to occur, that the injury could reasonably be expected to result in a fatality, that the violation was significant and substantial, that one person would be affected, and that the violation was the result of moderate negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount of $243.00.

            Citation 6426225 . . . refers to a backup alarm on the Cat 980-C front-end loader [that] was not maintained in a functional condition and was not working when Inspector Scherer was at the mine. . . . Inspector Scherer had conversations with the county employees who were at the mine at the time[. (Tr. 55-56).] . . . [S]everal of these county employees were using the front-end loader to load the county trucks. They switched off during the day, taking turns using the front-end loader. . . . [T]his scenario . . . seems a little unusual to me. I have not heard of [situations where] . . . county employees come on . . . [a] mine site and . . . use the equipment of the mine site and load their own trucks, but they were doing it at this [mine at the ] time [Inspector Scherer was there].[ ]

            Inspector Scherer indicated that there were probably six or so county employees coming and going at the mine during that day. One of the employees who was operating [the] . . . front-end loader backed up the front-end loader for Inspector Scherer, and it was clear that the audible backup alarm was not operating at the time.

            Inspector Scherer testified that he had another employee of the county conduct the test a second time and[,] again[,] the backup alarm was not working. [(Tr. 57).] I credit Inspector Scherer’s testimony and find that indeed a violation of Section 56[.]14132[(a)] has been shown in this case. . . .

            I understand that Mr. Bachmann asserts that he was not aware that . . .there was any problem with the backup alarm and he was not aware of how that alarm on the loader may have been repaired [between the time the violation was issued and when he returned to the mine the following day]. Nonetheless, I accept Inspector Scherer’s representation that it was not working when he conducted his inspection[.] . . . [T]here is a violation of the mandatory standard.

            This backup alarm standard is to protect people on foot and other people working in the area . . . [from] get[ting] injured. [O]ver the years . . . there have been a number of fatal injuries of people who have been injured by equipment backing up without an audible backup alarm.

            . . . Inspector Scherer . . . designated this as a significant and substantial violation, and I agree with him. There were county employees in the area who didn’t work at the mine . . . . Some of them were on foot. Some of them were in and out of this loader. Some of them were using other equipment. I can see how it would easily happen that[,] when this loader backed up, someone [or something] could be hit, either another piece of equipment or someone on foot. . . . [I]f they were hit, [it is more than reasonable to expect that] the injuries could be disabling or even fatal. [(Tr. 60-61).]

            . . . [D]ue to the number of people in the area, [including] people taking turns operating the loader . . . who are not familiar with this particular mine or who didn’t know the backup alarm was not functioning, there were a number of people exposed [to this hazard. I find that there was more than a reasonable likelihood that the hazard contributed to would result in an injury of a reasonably serious nature.] . . . I find that the Secretary has shown this . . . to be a significant and substantial violation.

            The Inspector found this violation to be moderate negligence on the part of the mine operator primarily based on his conversations with Mr. Bachmann that . . . Bachmann was not aware that the backup alarm was not functional. [I agree with the Inspector’s assessment of the negligence.] . . . [T]he Secretary has proposed a penalty of $243 for this violation, and that is the penalty that I assess in this instance.

(Tr. 119-122).

c.         Citation No. 6426226 (Docket No. CENT 2010-324-M)

            On October 20, 2009, Inspector Scherer issued Citation No. 6426226 to BSG for a violation of section 56.14101(a)(2) of the Secretary’s regulations. The cited standard requires that, “if equipped on self-propelled mobile equipment, parking brakes shall be capable of holding the equipment with its typical load on the maximum grade it travels.” 30 C.F.R. § 56.14101(a)(2). The citation alleges the following:

The parking brake on the CAT 980C front end loader (SN 63X2069) was not capable of holding the equipment with a typical load on the maximum grade it travels. The park [sic] brake offered no noticeable resistance when tested on a grade of approximately 3% with an empty bucket. This loader is used to feed material to the plant and to load out haul trucks and is operated near several other pieces of mobile equipment. The loader is operated on grades of up to 20% as measured with an abney level. This condition exposes the loader operator and other equipment operators to crushing injuries from being run over or pinned between pieces of mobile equipment.

The inspector found that an injury was reasonably likely to occur, that the injury could reasonably be expected to result in a fatality, that the violation was significant and substantial, that one person would be affected, and that the violation was the result of moderate negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount of $243.00.

            [C]itation No. 6426226 refers to the same front-end loader as the previous violation[, Citation No. 6426225 ]. Mr. Bachmann . . . indicates that he was not aware that the parking brake was not working. [(Tr. 66).] Inspector Scherer issued the citation based on . . . checking the parking brake [with the assistance] of one of the county employees who was at the mine. [In order to prevent exposure of anyone to a hazard,] Inspector Scherer tested the brake on a fairly level surface[, which was significantly less of a grade than the maximum grade that the loader would travel during normal operation. (Tr. 67-68). After the loader was stopped by compressing the regular brake, and the parking brake set, it continued to roll forward. Given that the brake would not hold an empty bucket on the level grade, Scherer did not want to risk attempting it on the maximum grade and with a normal load. (Tr. 67-68)].

            As Inspector Scherer indicated in his citation, the parking brake was not capable of holding the equipment with a typical load on the maximum grade it travels. He could discern this because [when he tested it, the loader] . . . was . . . not even on the maximum grade it travels[,] . . . was not loaded[,] and the brake . . . [could] not hold the piece of equipment in place. He said there was no noticeable resistance when tested on a grade of approximately 3 percent[, a relatively level grade,] with an empty bucket. Again, the Inspector designated this violation as significant and substantial.

            Based upon the testimony of Inspector Scherer and what he observed on the front-end loader on that particular day[,] and given the test [was conducted] on a really light grade and the brake wouldn’t hold, I find that the Secretary has shown a violation of Section 5614101[(a)(2)] which requires that if equipped on self-propelled mobile equipment, parking brakes shall be capable of holding equipment with its typical load on the maximum grade it travels.

            Based on the Inspector’s testimony I find that the loader was equipped with parking brakes[,] but [the brakes] . . . were not capable of holding the loader with its typical load on the maximum grade. Therefore[,] I conclude that the company violated the regulation as alleged. I have found that there is a violation of this mandatory standard. I find that the violation creates a discrete safety hazard . . .[, i.e., that of the parking brake not holding while the vehicle is parked and someone is in the area of the equipment]. When the driver of the equipment gets out and expects the parking brake to hold the truck in place and it doesn’t, the driver might inadvertently walk around the equipment and be run over by the equipment when the brake doesn’t hold. [(Tr. 70-71).] The same is true for any other person working in the area who may be exposed to this loader. [(Tr. 71).]

            . . . [G]iven the fact that there were at least six county employees on the mine site that day, none of whom . . . [were] aware of the condition of this loader until . . . Inspector Scherer tested it and explained to them that the parking brake didn’t hold, [and that] others come in and out of the area throughout the day and may not be aware of it, . . . if the loader had been parked . . . - with the expectation that the parking brake would hold and it didn’t, . . . [it was] reasonably [likely that the condition would] cause a serious injury to miners. [Moreover, the county employees were not employees of the mine and were not, and could not be, completely familiar with equipment.]

            This condition created a hazard of an employee[, or anyone else in the area,] being injured should the loader roll from its parked position. It’s a hazard to the driver and to others in the area who assume the brake will hold.

            The [county] truck drivers were required to use alternate means to hold the loader when parked during their work on that day, and if they did not use this alternate means, the truck would roll and hit someone in the area, someone not aware of the problem, and the injury would be fatal. There was foot traffic, a number of people in the area, and therefore I find that it’s reasonably likely that an injury would occur as a result of this violation. [Any injury would be serious, and potentially fatal.]

            Mr. Bachmann indicated . . . that the brake was working fine the next day when he arrived and he was not aware that there was any problem with the violation. . . . [T]he Inspector designated this as moderate negligence, and I agree[.] . . . I assess the $243 penalty as proposed by the Secretary.

(Tr. 122-126).

d.         Citation No. 6426227 (Docket No. CENT 2010-324-M)

            On October 20, 2009, Inspector Scherer issued Citation No. 6426227 to BSG for a violation of section 56.4130(b) of the Secretary’s regulations. The cited standard requires that “[t]he area within the 25-foot perimeter [of unburied, flammable or combustible liquid storage tanks] shall be kept free of dry vegetation.” 30 C.F.R. § 56.4130(b). The order alleges the following:

The area within the 25-foot perimeter of the elevated diesel storage tank at the fueling area was not kept free of dry vegetation. Dry grass and weeds up to 2 foot tall were under and around the tank and extended out to the road way and to an electrical panel presenting a fire hazard. Miners and truck drivers travel in this area daily and access this fuel tank on an as needed basis. This condition exposes miner to smoke inhalation and burns in trying to fight a fire in the early stages.

The inspector found that an injury was unlikely to occur, but that any injury could reasonably be expected to result in lost workdays or restricted duty, that the violation was not significant and substantial, that one person would be affected, and that the violation was the result of moderate negligence on the part of the operator. The Secretary has proposed a civil penalty in the amount of $100.00.

            Citation 6426227 . . . is a very straightforward . . .[,] non-S&S citation with a $100 penalty. . . . Inspector Scherer indicated that the area within the 25-foot perimeter of the elevated diesel storage tank at the fueling area was not kept free of dry vegetation, that dry grass and weeds up to 2 feet tall were under and around the tank and extended out to the roadway. [This condition created a potential hazard because of the combination of fuel and dry material that, if ignited, would threaten anyone in the area.]

            The Inspector cited the standard that requires that . . . [the 25 foot perimeter around, in this case, an unburied, flammable or combustible liquid storage tank be kept free of dry vegetation]. . . . This [citation involves a] . . . diesel fuel [tank], which . . . [had] flammable liquid [in it]. . . . I credit the Inspector’s observation that there was dry grass within 25 feet of . . . [the tank]. [The condition was obvious. see Sec’y Ex. P-10, pp. 3-4.]

            Mr. Bachmann doesn’t dispute that there was grass within the 25 feet [of the tank], but [he does state that,] on the next day[,] when he arrived at the mine[,] it was raining and[,] therefore[,] he disputes that it was dry. [(Tr. 78).] I credit the Inspector’s testimony for what he observed on the day of his inspection. He designated this as not significant and substantial because[,] in his view[,] there was no likelihood that there might be some kind of fire[, since he did not observe an ignition source. (Tr. 80).] If there were [an ignition source,] someone might be seriously injured, but he didn’t find there was a likelihood of that. Therefore[,] I agree with the Inspector and assess the $100 penalty as proposed by the Secretary.

(Tr. 126-127).

e.         Order No. 6426229 (Docket No. CENT 2010-323-M)

            On October 20, 2009, Inspector Scherer issued Order No. 6426229 to BSG for a violation of section 56.16006 of the Secretary’s regulations. The cited standard requires that “[v]alves on compressed gas cylinders shall be protected by covers when being transported or stored, and by a safe location when the cylinders are in use.” 30 C.F.R. § 56.16006. The order alleges the following:

The valve on the 120 lb. propane cylinder located alongside of the scale trailer on the roadway side was not properly protected by a cover. This propane cylinder was lying on its side parallel to the outside wall of the trailer with a regulator attached and was hooked into the trailers heating system. The cylinder valve was not provided with a protective collar or any type of protection. There were cinder blocks on the roof of the trailer located directly above the valve that were in use to hold roofing down. Various pieces of timber and pipe were in the area alongside of the cylinder. This cylinder had been placed this way for an extended period of time which exposes the valve to damage from contact. Miners and truck drivers travel in this area on a daily basis. This condition exposes miners and truck drivers to fire, explosion and impaling injuries from projectiles. Mine management has engaged in aggravated conduct constituting more than ordinary negligence in that they knew or should have been aware of this condition as it has existed for an extended period of time, was open and obvious and they are in this area on daily basis when the mine is in operation. This violation is an unwarrantable failure to comply with a mandatory standard.

The inspector found that an injury was unlikely to occur, that any injury could be reasonably expected to be of a permanently disabling nature, that the violation was not significant and substantial, that one person would be affected, and that the violation was the result of high negligence on the part of the operator. The Secretary proposed a civil penalty in the amount of $4,000.00. At hearing, the Secretary modified this order to a 104(a) citation with high negligence, resulting in a newly proposed penalty of $100.00. The Secretary’s request to modify is GRANTED.

            [This citation involves a] propane tank stored next to[,] . . . under, [or] partially under the scale house[,] which is a trailer[.] [Sec’y Ex. 11, pp. 3 and 4; Sec’y Ex. 12, p. 4] . . . [The] citation alleges that the propane cylinder alongside the scale trailer was not properly protected and [,]specifically[,] the cylinder valve was not properly protected.

            The Respondent is charged with the violation of the mandatory standard . . . for failing to provide protection for the valve[] on the gas cylinder which . . .[was] used at the scale house. [The intent of the standard is to protect against the exposure of gas cylinder valves to the possibility of being struck, thereby unexpectedly releasing gas under great pressure, which may, given the right conditions, pose a fire or explosion hazard.]

            Inspector Scherer referred to the valve[] . . . [on] the uncovered cylinder, as well as the attached line. . . .[A]ll of these devices were part of this one unit. [The photographs in Secretary’s] Exhibit P-12, . . .Page 4, and . . . [Secretary’s] Exhibit 11[,] . . . show this cylinder laying on its side next to the trailer, [with] no cap cover or guard[.] . . . [The tank] was not stored in a safe location[,] as it was exposed to [loose] lumber that was stored in the area[,] . . . a port-a-potty or outhouse that was next to it[,] and . . . cinderblocks on the roof above. If any of those items fell on the . . . valve, it could cause the pressur[ized] . . . gas to be released[.] . . . [T]herefore[, the tank] . . . was not stored in a safe position nor was there a cap or cover to protect the valve.

            The valve on the . . . propane cylinder was not approved for horizontal use. [(Tr. 89-90).] The valve was not protected and was not in a safe location. There was a [gas] line running from the valve into the furnace located in[] the trailer. The valve is next to the outside of the trailer near the edge, and there [were] . . . materials . . . stacked alongside. . . . .[M]oving . . . materials . . . could strike the valve[. Morever,] . . . cinderblocks [were] located on the edge of the roof [directly] above the valve and[, according to Mr. Bachmann,] the port-a-potty next to [the cylinder] . . . had already been blown over at one point. [(Tr. 89, 100)] All of these things created a . . . hazard, but Inspector Scherer did not designate this as S&S. [Rather, Scherer] . . . determined that [an injury] . . . was not likely to occur.

            Mr. Bachmann [first] indicated that this cylinder had been used . . . for years to heat the trailer, but[,] on the second day [of the inspection] Mr. Bachmann and his brother . . . were discussing this violation [again] with Inspector Scherer, and the brother became very angry and insulting and threw the cylinder down. [(Tr. 93-97).] Mr. Bachmann then opened the cylinder, and[,] in Inspector Scherer’s view[,] he heard the gas released. [(Tr. 98-99).] Based on the sound and the smell [that came from the cylinder when it was opened, Scherer determined that] . . . some propane gas remained in that cylinder.[ (Tr. 99).] It was full when it was installed, although it may have been [at] . . . a very low level at the time of the violation.

            The standard cited requires that . . . valves on . . . gas cylinders be protected by covers when they are stored[. This valve] was clearly not [protected] based upon the photograph. . . . I conclude that MSHA has established the violation and the citation is affirmed.

            . . . Inspector Scherer found that the violation was a result of high negligence . . . on the part of the operator . . . based upon the fact that [the cylinder] had been there for some time. . . . [However,] I’m not convinced that there was high negligence in this particular violation. . . .Mr. Bachmann’s testimony [was] that [the cylinder]. . . wasn’t used[,] . . . that it was [just] laying there[,] and that [he was not] . . . aware that it was a violation. [(Tr. 102-104).] . . . I find Mr. Bachmann’s negligence to be moderate based upon his testimony . . . [and] I assess the [$100.00] . . . penalty that the Secretary has proposed in this particular case.

(Tr. 127-130).

III. PENALTY

            The principles governing the authority of Commission administrative law judges to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission and its judges the authority to assess all civil penalties provided in [the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. The Act requires that, in assessing civil monetary penalties, the Commission [ALJ] shall consider the six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect on the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i). Based on my above findings, I assess the following penalties:

Order No.       6426224     $ 500.00

Citation No.    6426225          $ 243.00

Citation No.    6426226          $ 243.00

Citation No.    6426227          $ 100.00

Citation No.    6426228          Vacated by the Secretary prior to hearing

Order No.       6426229     $ 100.00

Total:                                      $1,186.00

IV. ORDER

            Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the penalties listed above for a total penalty of $1,186.00. Bachmann Sand & Gravel is hereby ORDERED to pay the Secretary of Labor the sum of $1,186.00 within 30 days of the date of this decision.

                                                                                    /s/ Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution: (U.S. Postal Service Certified Mail, Return Receipt Requested)

Beau Ellis, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202

Wayne Bachmann, Bachmann Sand & Gravel, 31357 U.S. Highway 18, Winner, SD 57580