FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001-2021

Telephone No.: 202-434-9950

Telecopier No.: 202-434-9981

January 9, 2012

DECISION

Appearances:  Robert Hendrix, Conference & Litigation Representative, U.S. Department of Labor, MSHA, Birmingham, Alabama, and Jeremy K. Fisher, Esq., Office of the Solicitor, U.S. Department of Labor, Atlanta, Georgia, on behalf of the Secretary of Labor;

Fernando Arturo Chavez, CEMEX Construction Materials, Miami, Florida, for CEMEX Construction Materials of Florida, 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 CEMEX Construction Materials of Florida, LLC, is liable for three violations of the Secretary’s Mandatory Safety and Health Standards for Surface Metal and Nonmetal Mines, and proposes the imposition of civil penalties in the total amount of $1,095.00. A hearing was held in Miami, Florida. The parties made closing arguments, and waived further briefing. The parties were afforded an opportunity to submit citations to legal authority deemed relevant to their cases. Neither party did so. For the reasons that follow, I find that CEMEX committed two of the violations, and impose civil penalties in the total amount of $200.00.

Findings of Fact - Conclusions of Law

            At all relevant times, CEMEX operated the Krome Quarry, located in Dade County, Florida, at which it drilled and blasted rock, collected material with a dragline, crushed rock, and turned out a variety of products, including sand and several sizes of stone. CEMEX operated several facilities in the State of Florida and elsewhere. Approximately 40 employees worked at the quarry at the time of the inspection. Richard Woodall, an MSHA inspector, conducted a regular twice yearly inspection of the quarry on August 10 and 11, 2010, during which he issued several citations, three of which are at issue in this proceeding. Woodall has twenty years of mining experience, including seven years as an MSHA inspector. He was accompanied during the inspection by representatives of CEMEX, including Ray Valdez, the mine manger, and Fernando Chavez, a safety manager and CEMEX’s representative at the hearing. The citations at issue are discussed below.

Citation No. 8544563

            Citation No. 8544563 was issued at 2:26 p.m. on August 10, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 56.13011, which requires that air receiving tanks “shall be equipped with indicating pressure gauges which accurately measure the pressure within the air receiver tanks.” The violation was described in the “Condition and Practice” section of the Citation as follows:

The air receiver tank located by the pressure washing area was not provided with a pressure gauge on the receiver tank itself. The gauge is needed to accurately measure the pressure in the tank. The employees working in the area around the receiver tank are exposed to the hazard of injury from the high pressure air if they don’t know the pressure in the tank. There was an automatic pressure relief valve on the vessel to prevent the tank from being over-pressurized.

Ex. G-1.

            Woodall determined that that the violation was unlikely to result in a lost-work-days injury, that the violation was not significant and substantial (“S&S”), 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 violation.

The Violation

            Woodall observed a large tank that contained air pressurized by a compressor. There was a pressure relief valve mounted on the tank, but there was no pressure gauge mounted directly on the tank. Tr. 15. He observed a pressure gauge approximately 10 feet away from the tank that read 100 psi (pounds per square inch), which was the operating pressure of the tank. However, as he traced the lines to the gauge, he observed a gate valve in the line that could have isolated the pressure gauge from the tank. Tr. 16-17; Ex. G-2, R- . He did not close the valve in order to verify that it could isolate the gauge. Tr. 29-30. Woodall’s concern was that the gauge could be isolated by the valve, or that dirt or some other obstruction could occur in the line, causing the gauge to reflect an inaccurate measure of the pressure in the tank.

            Attempts to trace the pressure lines from the tank to the gauge on photographs of the installation met with limited success at the hearing. Tr. 31-34. However, Woodall testified that he had traced the lines during the inspection and determined that the valve was capable of isolating the gauge. Tr. 36-37. Woodall also had discussed the location of the gauge and valve with company representatives, who did not assert that the valve did not isolate the gauge. Tr. 36-37. CEMEX contends that the valve could not isolate the gauge. However, photographs of the installation do not clearly show the path of the line to the gauge, and videos show that the gauge functioned, but fail to establish that the valve was not capable of isolating the gauge. Ex. R-A, R-B, R-C. I credit Woodall’s testimony and find that the gate valve was in the line leading from the tank to the gauge, and was capable of isolating the gauge. The violation was abated by the installation of a gauge on the tank itself.

            The regulation requires that compressed air receiving tanks be equipped with pressure gauges. CEMEX’s gauge was not located on the tank. Rather it was located some 10 feet away from the tank. Moreover, there was a gate valve on the line leading to the gauge that was capable of isolating the gauge from the tank. The gauge in question appears to have been providing an accurate reading of the pressure in the tank, at least while the valve was open. However, that does not alter the fact that the tank was not equipped with a gauge. It goes to the gravity of the violation, and Woodall determined that the violation was unlikely to result in an injury.

            I find that the regulation was violated, and that Woodall’s assessments of gravity and negligence were accurate.

Citation No. 8544564

            Citation No. 8544564 was issued at 2:36 p.m. on August 10, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 47.41(a) which requires that operators “must ensure that each container of a hazardous chemical has a label.” The violation was described in the “Condition and Practice” section of the Order as follows:

There was a plastic one-gallon container in the welding storage trailer that was not labeled to identify the contents. The labels are needed to ensure that persons working in the area know what is in the container. Persons are exposed to the hazard of coming into

contact with a hazardous chemical. No one knew the contents of the container.

Ex. G-4.

            Woodall determined that it was reasonably likely that the violation would result in a permanently disabling injury, that the violation was S&S, that one person was affected, and that the operator’s negligence was moderate. A civil penalty in the amount of $308.00 was assessed for this violation.

The Violation

            While inspecting a trailer located in an area where welding was performed, Woodall observed a white plastic jug with no label on it, that contained an unidentified liquid. Tr. 53. The trailer was locked, but the welders and/or supervisors had keys. Tr. 57. Valdez tested the substance with his finger, against Woodall’s advice, and found it to have an oily texture. Tr. 54. He suffered no adverse consequences as a result of his testing effort. Tr. 64. Efforts to identify the substance were unsuccessful. The jug was taken to a waste oil containment area and disposed of.

            Woodall made his determination that an S&S violation had occurred, assuming a worst-case scenario. As he explained: “I did [assume the worst-case scenario], because it wasn’t water. I mean, it was one of those. . . . I didn’t know. Nobody knew what it was.” Tr. 64. The Secretary’s Hazardous Communication regulations are of relatively recent origin. The few cases that have been decided under the instant regulation have involved substances known to be flammable, which are identified in the regulation as posing a physical hazard. 30 C.F.R. § 47.11. See, e.g., Nelson Quarries, Inc., 30 FMSHRC 234 (April 2008) (ALJ) (unlabeled diesel fuel tank); Spencer Quarries, Inc., 28 FMSHRC 1005 (Nov. 2006) (ALJ) (unlabeled propane tank).

            The regulation at issue requires that each container of a hazardous chemical has a label. When charging a violation of that regulation, the Secretary, who has the burden of establishing each element of a violation by a preponderance of the evidence, must prove that the container held a hazardous chemical, as defined in the regulations. Woodall candidly admitted that he did not know what the substance was. He opined that a substance that had an oil base would pose a “health or building hazard.” Tr. 65. However, the fact that it appeared to have an oily texture falls short of establishing that it had an oil base, or that it was hazardous as defined in the regulations.

            It is possible that CEMEX violated some other provision of the HazCom regulations, for example, section 47.21, which requires that operators evaluate each chemical brought on mine property and each chemical produced on mine property to determine if it is hazardous. However, considering the virtual absence of evidence as to the composition or nature of the substance,

I find that the Secretary has failed to carry her burden of proving that the container held a hazardous chemical. The citation will be vacated.

Citation No. 8544565

            Citation No. 8544565 was issued at 9:20 a.m. on August 11, 2010, pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 56.12018, which requires that: “Principal power switches shall be labeled to show which units they control, unless identification can be made readily by location.” The violation was described in the “Condition and Practice” section of the Order as follows:

There was a 120-volt energized breaker in the electrical panel box in the MCC Room A that was not properly labeled to identify what circuit it controlled. The energized breaker was marked in the panel box as a spare, but had a wire hooked to it. No one knew what it went to. Persons could receive a fatal shock if an unintentional electrical fault occurred while persons were contacting whatever the mislabeled breaker controlled and persons did not know what to shut down.

Ex. G-7.

            Woodall determined that it was reasonably likely that the violation would result in a fatal injury, that the violation was S&S, that one person was affected, and that the operator’s negligence was moderate. A civil penalty in the amount of $687.00 was assessed for this violation.

The Violation

            When Woodall inspected Room A in the MCC, he noticed that a circuit breaker that was labeled as a spare was in the “on” position, which to him threw up a “red flag.” Tr. 69; Ex. G-8, R-H. He had someone take the cover plate off, and observed a wire connected to the breaker. No one knew what the wire was connected to, i.e., what that circuit energized. Tr. 70. The wire was disconnected. The breaker then did not control a circuit and was rendered a spare. It was later determined that the circuit energized a light. Tr. 82-83; Ex. R-I.

            The breaker, a principal power switch, was not labeled to show what it controlled, and there is no contention that identification could have been made readily by location. Consequently, the standard was violated.

Significant and Substantial

            The Commission recently reviewed and reaffirmed the familiar Mathies framework for determining whether a violation is S&S. As explained in Cumberland Coal Res., 33 FMSHRC ___, ___ (October 5, 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). 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. A measure of danger to safety, a discrete safety hazard, was contributed to by the failure to label the circuit, i.e., that a person might unintentionally come into contact with an energized wire or piece of equipment that was thought to be de-energized. Any injury resulting from the violation would most likely involve contact with a live 120-volt electrical circuit which could easily be reasonably serious, or even fatal, given the conditions in the area. Tr. 72. As is often the case, the primary issue in the S&S analysis is whether the hazard contributed to by the violation was reasonably likely to result in an injury.

            Woodall determined that an injury was reasonably likely because “no one knew what the energized breaker went to.” Tr. 72. He based his gravity determination on the fact that a person could unintentionally come into contact with the live circuit and suffer a potentially fatal shock, in part because a person could be sweating in Florida in August, or it could be raining. Tr. 72. Eduardo Yi, a project manager for CEMEX, is an electrical engineer who has worked in the mining industry for thirty years. He testified that, following the inspection, it was determined that the mislabeled circuit controlled a light that was mounted on a steel column, a picture of which was introduced into evidence. Tr. 82; Ex. R-I. He opined that the light fixture appeared to be in good condition, and that no one would have been exposed to an electrical hazard by contacting the energized light fixture. Tr. 83. Yi also described CEMEX’s established procedures for working on electrical equipment. Only qualified electricians are allowed to work on electrical equipment, and a strict lock-out, tag-out policy is in place. An electrician working on a piece of equipment would check with a test meter to make sure there was no power to the unit, both before and after the lock-out procedure. Tr. 83-86.

            I do not place great weight on Woodall’s evaluation of gravity. It was made on the basis of unknown factors. Certainly the fact that the breaker controlled an unknown energized circuit presented a potentially significant, but unknown, possibility of injury. In fact, however, the circuit powered a light fixture that appeared to be in good condition, allowing possibility of injury to be assessed more accurately. I agree with Yi that an injury was unlikely. Woodall’s explanation of the severity of any injury was also clouded by the fact that he did not know what circuit the breaker controlled, and his elevation to the fatal level based on potentially wet conditions strikes me as somewhat speculative. I find that if an injury occurred it would most likely have resulted in lost work days or restricted duty. I agree that CEMEX’s negligence was moderate.

            CEMEX relied on a Commission Administrative Law Judge decision affirming a citation for a similar violation involving an unlabeled 480-volt power circuit that an experienced MSHA electrical specialist evaluated as unlikely to result in an injury. Omya Arizona, a division of Omya Inc., 33 FMSHRC ___ (Nov. 3, 2011) (ALJ). While there are, no doubt, other examples of such violations having been evaluated as S&S, the facts of this case are similar to those in Omya, and the inspector’s assessment in that case, which was based upon known facts, is consistent with finding that the instant violation was not S&S.

The Appropriate Civil Penalties

            The MSHA assessment sheet reflects that Krome Quarry is a small to moderate sized mine, as is its controlling entity, and that it had a negligible history of violations. The parties stipulated that the proposed penalties would not affect CEMEX’s ability to continue in business, and that CEMEX demonstrated good faith in abating the violations.

            Citation No. 8544563 is affirmed in all respects. A civil penalty of $100.00 was assessed by the Secretary. Considering the factors enumerated in section 110(i) of the Act, and guided by the Secretary’s penalty assessment regulations, I impose a penalty in the amount of $100.00.

            Citation No. 8544565 is affirmed. However, the violation was unlikely to result in a lost work days or restricted duty injury, not reasonably likely to result in a fatality, and it was not S&S. A civil penalty of $687.00 was assessed by the Secretary. Considering the reduction in the level of gravity, the factors enumerated in section 110(i) of the Act, and guided by the Secretary’s penalty assessment regulations, I impose a penalty in the amount of $100.00.

ORDER

            Citation No. 8544564 is VACATED. Citation No. 8544563 is AFFIRMED, and Citation No. 8544565 is AFFIRMED as modified. Respondent is ORDERED to pay civil penalties in the total amount of $200.00 within 45 days.

                                                                        /s/ Michael E. Zielinski

                                                                        Michael E. Zielinski

Senior Administrative Law Judge

Distribution:

Robert Hendrix, Conference Litigation Representative, U.S. Department of Labor, MSHA, 135 Gemini Circle, Ste. 212, Birmingham, AL 35209-5842

Jeremy K. Fisher, Esq., Office of the Solicitor, U.S. Department of Labor,

Atlanta, GA 30303

Fernando Arturo Chavez, CEMEX Construction Materials FL, LLC, 13292 NW 118^th Ave., Miami, FL 33178