FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

Telephone No.: 202-434-9958

Fax.: 202-434-9949

January 4, 2013

DECISION

Appearances:  Pamela F. Mucklow, Esq., U.S. Department of Labor, Denver, Colorado, on

behalf of the Secretary of Labor;

                        John Rutkowski, Fennimore, Wisconsin, on behalf of Allied Stone, LLC.

Before:            Judge Zielinski

            This case is before me on a Petition for Assessment of Penalty filed by the Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The petition alleges that Allied Stone, LLC is liable for nine violations of the Secretary’s Safety and Health Standards for Surface Metal and Nonmetal Mines , and proposes the imposition of civil penalties in the total amount of $1,043.00. A hearing was held in Madison, Wisconsin, and both parties filed a post-hearing brief. Two of the violations were settled during the hearing. Remaining at issue are seven violations for which the Secretary has proposed penalties in the amount of $843.00. For the reasons that follow, I find that Allied Stone committed five of the seven violations and impose civil penalties in the total amount of $450.00 for the contested violations.

            Findings of Fact - Conclusions of Law

            At all times relevant to this proceeding, Allied Stone operated the Portable #1 mine, a surface limestone mine, located in Fennimore,Wisconsin. The operators of the mine are John and Jeff Rutkowski. Jeff Rutkowski has been in the mining field since 1989, in the business of crushing stone since 1999, and is familiar with safety procedures at various types of mines in the region, including his own. Tr. 111.

            On July 21, 2010, Kevin LeGrand, a mine safety and health specialist for MSHA’s Metal/Non-metal Division, conducted an inspection of the Portable #1 mine. Tr. 22-23. LeGrand joined MSHA in 1999 as an inspector and became a supervisory inspector in 2002. Tr. 24-25. From 1984 to 1994, he worked as an equipment operator and mechanic at a company that operated surface limestone, open-pit quarry, and sand and gravel mines. In 1994 he moved to a safety director position within the same company doing workplace inspections and safety training. Tr. 26-28. LeGrand holds a degree in Occupational Safety and Health from Columbia Southern University. Tr. 29.

            Based on LeGrand’s observations and conversations with the operators during the inspection, nine citations were issued. Eight of the violations were safety related and one was a paperwork violation. During the hearing, Allied Stone withdrew its contest of Citation No. 6499833, agreeing to pay the penalty amount of $100.00. Tr. 108. Additionally, Citation No. 6499834 was settled during the hearing. The negligence was reduced to “low,” and Allied Stone agreed to pay the assessed penalty of $100.00 for that citation. Tr. 108. The other seven citations remain at issue and are discussed below.

Citation No. 6499835

Citation No. 6499835 was issued at 9:18 a.m. on July 21, 2010, pursuant to section 104(a) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.3131 which states “[i]n places where persons work or travel in performing their assigned tasks, loose or unconsolidated material shall be sloped to the angle of repose or stripped back for at least 10 feet from the top of the pit or quarry wall.” Other conditions that create a “fall-of-material hazard” must also be corrected. The violation was described in the “Condition and Practice” section of the citation as follows:

There were loader tire tracks parallel to the high wall measuring 2 feet away from a 30-foot high wall which contained numerous loose rocks and a section with about a 3-foot over hang. Inadvertent falling of rock onto equipment operating near the base of the high wall exposed persons to crushing type injuries. Persons operate a skid steer type of small loader and a mid-sized loader near the wall regularly to move spilled material out from under the plant as part of normal mining operations. The owner indicated he did not notice the close distance of equipment operation to the high wall during clean up activity.

Ex. G-1.

LeGrand determined that the violation was reasonably likely to result in a fatal injury, that it was significant and substantial, that one person was affected, and that the operator’s negligence was moderate. A civil penalty in the amount of $243.00 was assessed for the violation.

The Violation

The unconsolidated material consisted of loose rock, both large and small in size, in various spots along the highwall, and an overhang area. Tr. 39; Ex. G-2-6. An overhang is rock that protrudes horizontally from a wall with no material underneath it. Tr. 95. LeGrand calculated that the highwall was approximately 30 feet high, using an Abney level and a tape measure. The overhang area was estimated at 10’ long x 5’ high x 3’ deep. Tr. 41-42, 102. Respondent contends that the highwall was only 20-22 feet high. Tr. 124. A photograph taken in January of 2012, a year and a half after the citation was issued, was introduced to support Respondent’s contention. Ex. R-1. It depicts a grade stick being held against the highwall. However, the top of the wall, the base of the wall, and the numbers on the grade stick are not clearly visible. Ex. R-1.

The hazard presented by loose rock is not only that it can fall to the ground, but that it can land on a ledge, initiating additional rock fall. Tr. 42. Falling rock has the potential of crushing or injuring a person working close to the base of the highwall. Tr. 48. LeGrand maintained that in order to be safe from rock-fall, a person should be at least 10 feet away from the wall. Tr. 60. There were tire tracks parallel to, and within 2 feet of, the highwall. Ex. G-2. As noted in the citation, LeGrand believed that two loaders, a small skid steer and a mid-sized Volvo, were used near the highwall during normal business operations. Ex. G-1. A large CAT loader was also used for some of the operations. While no footprints were seen near the wall, loader tracks established that at least one person was put at risk of injury. Tr. 78, 89.

Jeff Rutkowski testified that the tracks were made by the Volvo loader, which was used to pile rocks next to the highwall, and that the skid steer was not used near the highwall. Tr. 49, 112. Using the dimensions of the Volvo loader, if the tracks were 2 feet from the base of the wall and the loader was parallel to it, the operator would have been no closer than 8 feet to the wall and would have been seated 9.5-10 feet above the ground and 13-15 feet below the top of the wall. Tr. 129; Ex. R-4. Rutkowski contended that the Volvo loader was usually perpendicular to the wall, which would have placed the miner at least 12 feet from the base of the highwall. Tr. 159.

Miners picked up and placed rock with the Volvo or CAT loader in the area near the base of the highwall. The loose rocks on the highwall and the overhang consisted of loose or unconsolidated material within the meaning of the standard. There was no angle of repose established, nor was there a barrier set up to keep miners away from the base of the highwall. The operator of the Volvo loader had been approximately eight feet from the base of the wall, in a position where the loader and he could have been struck by falling unconsolidated material. I find that Respondent violated the standard.

Significant and Substantial

            The Commission reviewed and reaffirmed the familiar Mathies framework for determining whether a violation is S&S in Cumberland Coal Res., 33 FMSHRC 2357, 2363-65 (Oct. 2011):

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if, based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission further explained:

In 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.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 (Aug. 1984).

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The Commission recently discussed the third element of the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine map). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 (Aug. 1984). The Commission recently discussed the third element of the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine map). The Commission held that the “test under the third element is whether there is a reasonable likelihood that the hazard contributed to by the violation, i.e., [in that case] the danger of breakthrough and resulting inundation, will cause injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Id. The Commission also emphasized the well-established precedent that “the absence of an injury-producing event when a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).

The fact of the violation has been established. It contributed to the discrete hazard of loose rock falling off the wall, crushing or injuring a miner at the base. Whether the violation was S&S turns on whether the hazard was reasonably likely to result in an injury of a reasonably serious nature.

LeGrand determined that the violation was significant and substantial because exposure of the operator in the loader was frequent enough that a serious injury was reasonably likely. Tr. 78. He also determined that the injury could be fatal, stating that he had seen reports of fatal accidents involving material falling from highwalls and onto operators of front-end loaders. Tr. 70, 72; Ex. G-15. In one of the reports, the loader was much larger than Respondent’s Volvo. Tr. 72-73. LeGrand explained that a miner might not always be killed but could suffer a permanently disabling injury or lost workdays. Tr. 76-77.

Respondent contended that when the Volvo loader was used to pick up rock, the time spent at the base of the highwall was approximately two minutes per trip, and that the rocks that fell did not land more than 1 foot from the wall. Tr. 112, 120, 122. In addition, Respondent’s Volvo loader had a roll over protection unit, safety glass, and a screen that protected the operator from falling objects. Tr. 127; Ex. G-43, R-4.

            LeGrand’s S&S determination was largely based upon his belief that the small skid-steer loader was used regularly near the highwall, and that the tracks near the highwall had been made by the skid steer. Tr. 55, 58, 66; Ex. G-5. He did not attempt to match the tracks to the size of the tires or the tread pattern on the loaders. Tr. 66. Rutkowski testified that the skid steer was used to clean up around the plant, but was never used near the highwall. Tr. 111-12. He also testified that the tracks near the wall were made by the Volvo loader, and that they matched the width and tread design of the tires on the Volvo. Tr. 111-12.

LeGrand’s belief that the skid steer was operated regularly near the highwall was grounded on statements made during the inspection that the skid steer was used to clean around the plant, which was 30-35 feet away from the wall. His recollection of those statements was limited, save for brief references in his notes. I accept Rutkowski’s testimony that the tracks were made by the Volvo loader, and that the skid steer was not used near the highwall. He compared the tracks to the loader’s tires. It also appears unlikely that the skid steer, with its small, four-foot wide bucket, would have been used near the highwall.

The operator of the 73,000 pound Volvo loader would have been eight feet away from the high wall’s base, and sitting 10 feet off the ground, if it was operated parallel and close to the wall. The operator of the larger CAT loader would have been even further from the area of the hazard posed by falling material. While a rock could fall from the wall and strike the loader and/or the operator’s cab, it would be unlikely to result in an injury to the operator. A falling rock would likely cause, at most, lost workdays or restricted duty injury.

Therefore, I find that this violation was not significant and substantial.

Negligence

LeGrand found Respondent’s negligence to be moderate because the operator knew or should have known about the violation. Tr. 81. LeGrand testified that when asked about the tracks, John Rutkowski responded by saying they “must have got closer to the wall than he thought.” Tr. 69. LeGrand maintains that John Rutkowski had the opportunity to observe the wall and its condition any day he was working around it or conducting a workplace exam. Tr. 82. John Rutkowski admitted that the loader got too close to the wall. A miner operating a loader within 2 feet of the highwall, with its loose and unconsolidated material, would have been an obvious violation. I find that Respondent’s negligence, while bordering on high, was properly marked as moderate.

Citation No. 6499836

Citation No. 6499836 was issued at 9:27 a.m. on July 21, 2010, pursuant to section 104(a) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.14107(a), which requires machine parts to “be guarded to protect persons from contacting gears… head, tail, and take-up pulleys… that can cause injury.” The violation was described in the “Condition and Practice” section of the citation as follows:

There was a 4 inch wide x 3 inch high opening at the tail section of the Cedar rapids jaw crusher under the conveyor tail pulley which exposed the fins of the self cleaning tail pulley. The opening measured 32 inches above ground level. Contact with this type of moving machine part can result in hand or finger lacerations. Persons shut down the plant and use a skid steer unit for clean up and maintenance activity. The condition was positioned in an open and obvious area and the owner was well familiar with the equipment guarding standard requirements.

Ex. G-16.

LeGrand determined that the violation was unlikely to result in an injury, that an injury could reasonably be expected to result in lost workdays or restricted duty, that one person was affected, and that the operator’s negligence was high. A civil penalty in the amount of $100.00 was assessed for this violation.

There was a small opening in the guarding around the crusher conveyor’s tail pulley in the area of the belt adjustment mechanism. The opening was depicted in the photograph taken by LeGrand; it measured 3” x 4” and was located approximately 30 inches above the ground. Tr. 188-89; Ex. G-18. The opening would have become wider if the belt was tightened and smaller if the belt was shortened or re-spliced. Tr. 192. Square tubing, encasing a threaded rod that was used to adjust the tension of the belt, was mounted several inches outside the opening and extended its full length, from the conveyor frame to the pulley shaft bearing, at least partially obstructing direct access to the pulley. Ex. G-18. In addition, it appears that only the center part of the spinning pulley could have been contacted. The more dangerous pinch point, where the belt started to wrap around the bottom of the pulley, was several inches below the opening. Ex. G-18.

LeGrand believed that a miner would be in the area to do maintenance work or clean-up, which he inferred from grease seen around the bearing housing. Tr. 189; Ex. G-18. Additionally, adjusting the pulley, to tighten or loosen the belt, would require work in that area. Tr. 190. However, maintenance and adjustments were not done when the equipment was running. Tr. 200. The belt was adjusted about once a year and the bearing was greased every two months during slow production periods. Tr. 201. In regard to diagnostic tests, Rutkowski could not recall anyone getting close enough to become entangled. Tr. 201. Further, during the time of the inspection, the plant was locked out and tagged out and when the equipment was running, miners stood clear of the crusher while it was being fed because rocks would fall in the area Tr. 200.

Based on the fact that one person normally did the maintenance and clean-up around the plant, LeGrand determined that one miner was put at risk of injury. Tr. 192. However, no footprints were seen in the area. Tr. 196. Lost workdays or restricted duty was considered to be the most serious injury a miner was reasonably likely to suffer because the injury would have involved getting one’s clothes or finger caught in the pulley, causing crushing, lacerations, or bruising. Tr. 192. LeGrand had read about similar injuries occurring, but since maintenance and clean-up was usually done when the plant was shut down, he determined that an injury was unlikely to occur. Tr. 193. He believed that the machine may not have been shut down to do a diagnostic test if it was making noise. Tr. 198.

While there are no specifications for how big an opening in a guard must be in order to be deemed a violation, the standard does require a reasonable possibility of injury. Tr. 196, 282-83. The purpose of a guard is to protect from inadvertent contact. Tr. 197. However, in this situation, a person would have to intentionally insert his hand around the bearing housing and tubing, into the very small opening. LeGrand conceded that injury was unlikely because the plant was shut down when maintenance was done, but he was more concerned with contact while a diagnostic test was being performed. Even though a person may have gotten close to the opening while performing a diagnostic test, that action would not have entailed putting a hand into or near the small opening or any other action that could reasonably have been expected to result in inadvertent contact with the pulley. It would have likely involved listening to and observing the machine to determine what might have been causing the problem. I find that there was no reasonable possibility of injury and therefore, no violation of section 56.14107(a). Citation No. 6499836 will be vacated.

In the alternative, I find that Respondent did not have fair notice of the Secretary’s interpretation of the standard as applied to the opening. The Secretary must provide fair notice of the requirements of broadly written safety standards. Allen Lee Good, 23 FMSHRC 995, 1004-05 (Sept. 2001) (opinion of Commissioners Jordan and Beatty) (citations omitted).

The language of the guarding standard is very broad in order to incorporate a wide range of situations where guarding might be appropriate. In Good, the Commission held that the guarding standard was ambiguous in the applications at issue and that it did not specify the extent to which moving machine parts should be guarded. As stated above, the purpose of the standard is to protect against inadvertent contact and I found that the opening presented no reasonable possibility of injury. The plant was previously inspected by MSHA and the condition was not cited even though the crusher was in the exact same position, although the opening may have been slightly larger in 2010 due to adjustments of the belt. Tr. 203; Ex. R-10. MSHA issued a revised guarding book in 2004 that discussed discrepancies on how inspectors looked at guarding standards, and published a power point presentation about guarding on the MSHA website in 2010. Tr. 282. However, in LeGrand’s words, MSHA has not “gotten technical” about the size of holes. Tr. 283.

Considering that the general area was guarded, that the opening in the guard was very small and access to it was obstructed by the belt adjustment mechanism, and no citation was issued in past inspections when the same opening existed, I find that Respondent was not given a reasonable opportunity to know that its conduct was prohibited. This finding is consistent with my decision in Knife River Materials to vacate a citation for lack of fair notice where a pulley was guarded, a miner would have had to reach around and inside the guard in order to contact rotating parts, and the condition had not previously been found to be inadequate. Knife River Materials, 33 FMSHRC 1210, 1224 (May 2011).

Citation No. 6499837

Citation No. 6499837 was issued at 9:43 a.m. on July 21, 2010, pursuant to section 104(a) of the Mine Act. It also alleges a violation of the guarding standard, which was described in the “Condition and Practice” section of the citation as follows:

A guard was not provided for the under side of the self cleaning tail pulley located on the conveyor feeding the Telsmith cone crusher. The opening consisted of about 28 inches long x 14 inches wide, positioned 6 feet 8 inches above the ground level. Contact with this type of moving machine component can result in entanglement injuries to body parts involved. Persons normally shut down the machine prior to maintenance activity. The location of the unguarded tail pulley was in an obvious location and the owner is familiar with the guarding standard.

Ex. G-20.

LeGrand determined that the violation was unlikely to result in injury or illness, that injury or illness could reasonably be expected to result in permanent disability, that one person was affected, and that the operator’s negligence was high. A civil penalty in the amount of $100.00 was assessed for this violation.

The cone crusher conveyor was missing a guard on the bottom of the self-cleaning pulley. Tr. 206. The dimensions of the unguarded area were 28” x 14-15” and the belt was 30 inches wide. Tr. 207. This left approximately 1-1½ inches of the self-cleaning fins and edge of the tail pulley exposed on one side. Tr. 205-07; Ex. G-21. Additionally there was a pinch point area on the bottom side of the tail pulley where the conveyor belt wrapped around the back side. Tr. 208. The specified area was accompanied by a caution sticker next to the bearing of the tail pulley that read, “Caution, Pinch Point Area.” Tr. 223; Ex. G-24.

The standard does not require guarding machine parts that are more than 7 feet, or 84 inches, away from walking or working surfaces. 30 C.F.R. § 56.14107(b). The height from the ground to the bottom of the conveyor belt, where the unguarded area and pinch-point were located, was 80 inches. Tr. 221; Ex. G-20. The belt was composed of three layers. Rutkowski testified that the top and bottom layers of the belt were 1/4 inch thick, and the middle layer was 3/16 inch thick. Tr. 225. He also stated that the last time the plant was operated, about three weeks prior to the investigation, there was a lot of “washing-in” of loose material, which reduced the height of the unguarded area to less than 84 inches. Tr. 227. Rutkowski estimated that 5-6 inches of material was washed in. Tr. 227. Additionally, he contended that no cleanup was done, and the plant was locked out. Tr. 226, 228. However, cleanup was always done before starting to run the plant, and the daily workplace examination records showed that Allied Stone was in production on July 19, 2010, two days prior to the inspection. Tr. 229; Ex. G-45.

LeGrand determined that one person was put at risk of injury because one person normally did the maintenance on the cone crusher. Tr. 209. He also determined that an injury was unlikely to result from the missing guard. Tr. 208; Ex. G-20. LeGrand marked the injury reasonably expected to be permanently disabling, which would occur if a miner’s clothing was “wrapped” into the fin-type pulley. Tr. 210, 218. He had read about incidents where miners became entangled in a tail pulley. Tr. 211. However, the unguarded area of the pulley was 6 feet 8 inches above the nearest walking or working surface, and a miner would not contact the pulley if he tripped. Tr. 218. Additionally, there were no footprints underneath the pulley or the conveyor, and the machine was usually shut down before maintenance was performed. Tr. 209, 211, 217. Rutkowski reiterated that no maintenance was ever done when the plant was operating, and when it was operating, only a skid loader traveled in the area of the crusher. Tr. 226, 227. Maintenance consisted of the bearing being greased once every two months. Tr. 226.

Even if the belt was as thick as Rutkowski stated, the height from the walking or working surface to the unguarded pinch point would have been 80 11/16 inches, still less than 84 inches. Rutkowski’s testimony regarding 5-6 inches of accumulation washing-in is unconvincing. Photographs depicting the ground around the crusher appear to show a smooth, firm, surface with tracks from a loader. Ex. G-2, G-6, G-21. As Petitioner argues in her brief, if a storm caused “washing in” and the plant had been locked out, tracks would likely not be visible. Sec’y Br. at 16.

Since there was an unguarded pinch point within 84 inches of a walking or working surface, I find that Respondent violated the standard. While the purpose of a guard is to protect a miner from inadvertent contact, here, a person would have had to reach up, move to the side of the exposure area, and reach further up in order to make contact with the rotating tail pulley. Tr. 226. I find that LeGrand’s determination that an injury was “unlikely” was proper. I also agree that, if an injury were to occur, it could reasonably have been expected to be permanently disabling.

The negligence level was marked as high because LeGrand thought the missing guard was an open and obvious condition. Tr. 211-12. He also stated that Rutkowski agreed with him that the condition was open and the area was not guarded. While it was clear that there was no guard on the bottom of the pulley, it was far from clear that an obvious hazard existed. Therefore, I find that the negligence level should be reduced to “moderate.”

Citation No. 6499838

Citation No. 6499838 was issued at 9:55 a.m. on July 21, 2010, pursuant to section 104(a) of the Mine Act. It also alleges a violation of the guarding standard, which was described in the “Condition and Practice” section of the citation as follows:

There was no guard for the bottom side of the fin type tail pulley located on the side discharge conveyor on the Masaba screen unit. The opening on the bottom measured 42 inches long x 15 inches wide, positioned 74 inches above the ground. Contact with this type of moving machine component can result in entanglement injuries to the body parts involved. Due to location, the condition was not that obvious and no one knew the guarding was not provided on the bottom side of tail pulley.

Ex. G-26.

LeGrand determined that the violation was unlikely to result in an injury, that an injury could reasonably be expected to result in permanent disability, that one person was affected, and that the operator’s negligence was high. A civil penalty in the amount of $100.00 was assessed for this violation.

            A pinch point was not guarded on the bottom side of the self-cleaning tail pulley of the conveyor on the Mesaba screen unit. Tr. 240; Ex. G-27. Approximately 1-1.5 inches of the pulley’s metal fins were visible beyond the edges of the belt on each side of the pulley, creating an entanglement hazard. Tr. 242-43; Ex. G-28. The pinch point, where the belt engaged the bottom of the pulley, measured 74 inches to the ground directly beneath. Tr. 243.

            LeGrand determined that one miner was at risk of injury because one person normally did the clean-up and maintenance on the conveyor. Tr. 243, 246. Also, a grease-line for the bearing on the left side of the guard on the tail pulley indicated that maintenance work was done around the unguarded area. Tr. 244; Ex. G-27. However, no one walked around or worked in the area when the conveyor was running, and the grease line was on the guard because the grease fitting could not be accessed when the guard was in place. Tr. 255-56.

            LeGrand determined that a permanently disabling injury was the most serious injury that could reasonably be expected to occur due to the unguarded area. If a person got caught in the fin-type pulley, he could have been pulled in and experienced crushing injuries or broken bones. Tr. 245. A lesser injury of lost workdays or restricted duty was also considered possible. Tr. 245.

Rutkowski explained that the conveyor was reversible, and was run in the opposite direction for different products. Tr. 255. If the allegedly required guard was in place and the conveyor was reversed, the material would have had no where to go after being crushed. Therefore, reversing the conveyor would necessitate removing the guard. Tr. 253. Moreover, the cited area had never been guarded, no citations had been issued for this condition when the plant was previously inspected in 2008 and 2009, and Respondent was not aware that additional guarding was needed on the bottom of the pulley. Tr. 250, 255-57; Ex. R-10.

As discussed above in Citation No. 6499836, the purpose of a guard is to protect from inadvertent contact. Tr. 197. In addition, the standard requires a reasonable possibility of injury. Tr. 196, 282-83. In order to have contacted the limited exposed edge of the pulley, one would have had to reach up under the existing guard. The grease line had been extended so that the bearing could be greased without coming in close proximity to the pulley, and the height and location of the opening made inadvertent contact highly unlikely. I find that the unguarded area presented no reasonable possibility of injury and, therefore, was not a violation of the standard. Citation No. 6499838 will be vacated.

In the alternative, I find that Respondent did not have fair notice of the Secretary’s new interpretation of the standard. As stated above, the language of the standard is ambiguous and very broad in order to incorporate a wide range of situations where guarding might be appropriate. The purpose of the standard is to protect against inadvertent contact with machine parts, and I found no reasonable possibility of injury. The plant was previously inspected by MSHA and no citations were issued. Considering that the cited area had never been guarded, and no citation was issued in past inspections, I find that a reasonably prudent person, familiar with the mining industry and the protective purpose of the standard, would not have recognized the specific prohibition asserted here. Citation No. 6499838 will be vacated.

Citation No. 6499839

Citation No. 6499839 was issued at 10:23 a.m. on July 21, 2010, pursuant to section 104(a) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.14108, which requires overhead drive belts to be “guarded to contain the whipping action of a broken belt if that action could be hazardous to persons.” The violation was described in the “Condition and Practice” section of the citation as follows:

The double v-belt drive for the head pulley located on the Cedar Rapids 3656 conveyor was not provided with any type of guarding to prevent whipping action of a broken belt. The over all length of the v-belt measured 4 feet. The distance to the walkway directly beneath the v-belt measured 101 inches. If persons were on foot in the area, inadvertent breakage of the v-belt could expose them to high impact hazards associated with a whipping belt. Persons normally shut down unit prior to any maintenance activity. The owner indicated not acknowledging the danger and not being familiar with this requirement.

Ex. G-30.

LeGrand determined that the violation was unlikely to result in injury or illness, that injury or illness could reasonably be expected to result in lost workdays or restricted duty, that one person was affected, and that the operator’s negligence was moderate. A civil penalty in the amount of $100.00 was assessed for this violaiton.

            The double v-belt drive on the cone crusher conveyor did not have guarding to prevent whipping action in the event that a belt broke. Tr. 263-64; Ex. G-31. The unguarded drive is depicted in a photograph, along with a similar drive that was guarded. Ex. G-31. The belts were 4 feet long. Tr. 264. Only belt drives where a broken belt would present a hazard to persons require guarding. In this case, the distance from the v-belts to the walkway below was 100-101 inches. Tr. 269; Ex. G-32. Rutkowski contends that the v-belts were more than 101 inches away from the walkway, but he did not take a measurement. Tr. 289.

            In a double v-belt, if one belt breaks and the other remains intact, it acts as a driving mechanism for the broken belt to whip around. Tr. 270. If it struck a person, it could cut him or cause other injury that could result in lost workdays or restricted duty. Tr. 270, 272. LeGrand heard of injuries caused by broken belts. He had also sustained an injury when he was hit in the shoulder by a whipping belt, suffering a cut that resulted in lost workdays. Tr. 273.

            One person was at risk of injury because one person did the repair and maintenance on the crusher. Tr. 272-73. Additionally, a person could have been on the walkway below the belts, which LeGrand believed would be accessed when the belt was running. Tr. 271. Injury was unlikely because the crusher was normally shut down when any kind of activity was done around the plant, there were no operator controls in the area, and a person could not reach the belt when standing on the walkway. Tr. 274, 276. The belt was located in the center of the plant and a person was unable to stand directly beneath it. Tr. 288, 290; Ex. R-9. A photograph depicts machinery located directly underneath the v-belt. Ex. G-9. However, a person was able to stand next to that machinery.

            Respondent’s primary challenge to this citation is that the drive was farther away from the walkway, such that a broken belt would not have presented a hazard. Several distance measurements were presented in its post-hearing brief. However, the measurements were not introduced into evidence, and are not part of the record. LeGrand measured the distance from the drive to the walkway surface, Rutkowski did not. I find that LeGrand’s measurements were accurate and that a broken v-belt could have inflicted injury on a person on the walkway. Therefore, I find that Respondent violated the mandatory safety standard in section 56.14108.

            The negligence level was marked as moderate by LeGrand because John Rutkowski told him no one ever pointed out the condition, and he was not familiar with the particular guarding standard. Tr. 274. LeGrand believed that the unguarded drive belt should have been obvious to him, particularly since a similar v-belt drive, a few feet away, was guarded. Tr. 275. I find that Respondent’s negligence was moderate, and I agree with the gravity determinations made by LeGrand.

Citation No. 6499840

Citation No. 6499840 was issued at 10:45 a.m. on July 21, 2010, pursuant to section 104(a) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.12004, which requires that electrical conductors that are exposed to damage be protected. The violation was described in the “Condition and Practice” section of the citation as follows:

There was a 480 volt cable which pulled out of its bushing connection and is exposing about 2 inches of inner color coded conductors to mechanical damage. The lack of protecting inner conductors can allow for contact with the metal frame, presenting shock hazards to persons in the area. Persons have not normally worked around the conveyor during use as part of normal mining operations. The condition was not located in an obvious place and the owner was familiar with the standard’s requirement.

Ex. G-33.

LeGrand determined that the violation was unlikely to result in injury or illness, that injury or illness could reasonably be expected to result in lost workdays or restricted duty, that one person was affected, and that the operator’s negligence was high. A civil penalty in the amount of $100.00 was assessed for this violation.

Two inches of an electrical cable had been pulled out of a bushing on an electrical motor on the conveyor. Tr. 297, 300; Ex. G-37. The exposed two inches of inner conductors were located at the end of the cable at the very top of the conveyor. Ex. G-37. Exposure of the inner electrical conductors created a shock hazard because vibration could have resulted in wearing-through of the wire’s insulation and shorting out to the metal junction box. Tr. 301. If this occurred, it could have caused the metal framework of the conveyor to become electrically energized. Tr. 301. However, the resulting voltage disruption would cause the power to be cut, assuming that the circuit protection setting was correct. Tr. 307.

The electrical conductors carried 480 volts, and if touched, could have caused burns resulting in lost workdays or restricted duty. Tr. 302. LeGrand’s determination of potential injuries came from reading investigations on electrical hazard injuries. Tr. 303. One person was put at risk because one person worked around the plant. Additionally, an injury would have been unlikely to occur because no one would have been around the area when the plant was operating. Tr. 303-04.

            Respondent’s main argument against the citation is that the condition was not reflected on previous preoperational examinations, the plant was shut down at the time of the inspection, and the condition would have been discovered and fixed during the next workplace exam. However, the condition almost certainly existed when the plant had last been shut down, and the fact that it may have been discovered in a preoperational examination is not a defense under the Act’s strict liability scheme.

I find that the condition violated the standard. I agree that an injury was unlikely and that any injury could have reasonably been expected to result in lost workdays or restricted duty.

LeGrand determined the level of negligence to be high because the condition was obvious. John Rutkowski indicated to LeGrand that the condition was obvious, such that it should be discovered and corrected during a workplace exam. Tr. 304. LeGrand was unable to determine how long the condition had existed. Tr. 306. Because it is uncertain whether the condition existed prior to the last preoperational workplace examination, I find that the negligence level should be reduced to “moderate.”

Citation No. 6499842

Citation No. 6499842 was issued at 12:15 p.m. on July 21, 2010, pursuant to section 104(a) of the Mine Act. It alleges a violation of 30 C.F.R. § 46.3(a), which requires an operator to develop an approved, written plan that includes a list of the persons and/or organizations who will provide the training. The violation was described in the “Condition and Practice” section of the citation as follows:

There was an organization identified as NICC indicated as the competent person who conducted the company’s annual refresher training in 2012 on the 5000-23 training form, however the company’s part 46 training plan competent persons list did not indicate this provider.

Ex. G-38.

LeGrand determined, in regards to the violation, that there was no likelihood that injury would occur, that an injury could reasonably be expected to result in no lost workdays, that it did not affect any persons, and that the operator’s negligence was moderate. A civil penalty in the amount of $100.00 was assessed for this violation.

At the hearing, Allied Stone stipulated to the violation and all determinations made by LeGrand, except for the degree of negligence. Tr. 309. A training certificate reviewed by LeGrand reflected that Linda Moyna provided refresher training to Jeff Rutkowski on March 30, 2010. Tr. 310-11; Ex. G-40. A photograph of the certificate shows the name “Linda Moyna” as the competent person who provided the training. Ex. G-40. However, her name was not listed as a competent person in the training plan. Tr. 310, 312; Ex. G-39. LeGrand determined the negligence level to be moderate because Respondent was not aware that Moyna’s name was not in the training plan, a fact that Respondent should have known. Tr. 312-13. It was established that Moyna was from a nearby community college and that the name of the college could have been listed, which would have covered different trainers from the college. Tr. 314-15.

            The standard clearly requires that a person or entity that provides training be listed in the plan. Respondent should have known that neither Moyna nor the community college was listed on the plan. Therefore, I find that there was a violation of section 46.3(a), and I agree with the gravity and negligence as assessed.

The Appropriate Civil Penalties

As the Commission recently reiterated in Mize Granite Quarries, Inc., 34 FMSHRC ___ (Aug. 7, 2012) (slip op. at 4-5):

        Section 110(i) of the Mine Act grants the Commission the authority to assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs that the Commission, in determining penalty amounts, shall consider:

the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and 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).

            Under this clear statutory language, the Commission alone is responsible for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission is bound by the Secretary’s proposed penalties . . . we find no basis upon which to conclude that [MSHA’s Part 100 penalty regulations] also govern the Commission.”). While there is no presumption of validity given to the Secretary’s proposed assessments, we have repeatedly held that substantial deviations from the Secretary’s proposed assessments must be adequately explained using the section 110(i) criteria. E.g., Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge need not make exhaustive findings but must provide an adequate explanation of how the findings contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622. In addition to considering the statutory criteria, the judge must also set forth a discernible path that allows the Commission to perform its review function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006).

Good Faith - Operator Size - Ability to Continue in Business

            The parties stipulated that Allied Stone demonstrated good faith in abating the violations and that the proposed penalties would not affect its ability to remain in business. Stipulated Facts. The parties did not stipulate to the size of Allied Stone as an operator. However, forms reflecting calculations of penalty assessments, filed with the petitions, indicate that Allied Stone is a small operator, and I so find.

History of Violations

            Allied Stone’s history of violations is reflected in a report generated from MSHA’s database, typically referred to as an “R-17.” Ex. G-41. The report reflects that no violations became final between April 21, 2009 and July 20, 2010. The assessment forms for the seven litigated violations reflect that no points were added for overall violation history or for repeat violations. I find that Allied Stone’s overall history of violations, as relevant to these violations, was low, and should be considered a mitigating factor in the penalty assessment process.

            Citation No. 6499835 is affirmed as a violation. However, the violation was found to be unlikely to result in injury, any injury was reasonably expected to result in lost workdays or restricted duty, and it was not S&S. A civil penalty in the amount of $243.00 was proposed for this violation. A penalty calculated pursuant to Secretary’s Part 100 regulations for the citation, as modified, would have resulted in an assessment in the range of $112.00. Considering the factors itemized in section 110(i), I impose a penalty of $100.00 for this violation.

Citation No. 6499837 is affirmed as a violation. However, Allied Stone’s negligence was found to be moderate rather than high. A civil penalty in the amount of $100.00 was proposed for this violation. Considering the factors itemized in section 110(i), I impose a penalty of $75.00.

            Citation No. 6499839 is affirmed as a violation in all respects. A regularly assessed penalty in the amount of $100.00 was proposed for this violation. Considering the factors itemized in section 110(i), I impose a penalty of $100.00.

Citation No. 6499840 is affirmed as a violation. However, Allied Stone’s negligence was found to be moderate rather than high. A civil penalty in the amount of $100.00 was proposed for this violation. Considering the factors itemized in section 110(i), I impose a penalty of $75.00.

Citation No. 6499842 is affirmed as a violation in all respects. A regularly assessed penalty in the amount of $100.00 was proposed for this violation. Considering the factors itemized in section 110(i), I impose a penalty of $100.00.

            THE SETTLEMENT

            As announced at the commencement of the hearing, the parties agreed to settle Citation Nos. 6499834 and 6499833. The total of the penalties assessed for those violations is $200.00 and the proposed penalties for settlement total $200.00. The bases for the compromises were disclosed at the hearing. I have considered the representations and evidence submitted and I conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act. Accordingly the settlement will be approved and Respondent will be ordered to pay civil penalties in the amount of $200.00 for the settled citations.

ORDER

             Upon consideration of the above, the motion for approval of settlement is GRANTED, and it is ORDERED that Respondent pay penalties in the amount of $200.00 for the settled violations.

Citation Nos. 6499836 and 6499838 are VACATED. Citation Nos. 6499839 and 6499842 are AFFIRMED. Citation Nos. 6499835, 6499837, and 6499840 are AFFIRMED, as modified. Respondent, Allied Stone, LLC, is ordered to pay civil penalties in the amount of $450.00 for the litigated violations.

Civil penalties in the total amount of $650.00 shall be paid within 45 days.

/s/ Michael E. Zielinski

Michael E. Zielinski

Senior Administrative Law Judge

Distribution (Certified Mail):

Pamela F. Mucklow, Trial Attorney, U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, CO 80202-5710

John Rutkowski, Allied Stone, LLC, 850 Wilson St., Fennimore, WI 53809