FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5267/FAX 303-844-5268

January 11, 2012

DECISION

Appearances:              Pamela F. Mucklow, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;

Albert Lee Yager, Owner, Gravel Pit Company, Madison, South Dakota, for Respondent.

Before:                        Judge Manning

            This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”) against the Gravel Pit Company 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”).

            Albert “Lee” Yager owns and operates a sand and gravel quarry near Madison, South Dakota, that operates under the name Gravel Pit Company. It is a small, intermittent quarry that includes a crushing plant. The case involves one section 104(a) citation. An evidentiary hearing was held and the parties introduced testimony and documentary evidence.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

            On August 17, 2010, MSHA Inspector James M. Peck issued Citation No. 6588043 to Mr. Lee Yager for an alleged violation of section 56.14107(a) of the Secretary’s safety standards. The citation states:

The mine operator had a tail pulley on the Kolhman screen plant conveyor that was not adequately guarded to protect persons from contacting the moving machine parts that can cause injury. This condition exposes miners to the hazard of becoming entangled. The rear section of the tail pulley was not guarded creating an opening [of approximately] 29 inches across the top, 15 inches across the bottom and 25 inches tall. The tail pulley was 28 inches from the outside framework. Each shift the plant was run, a miner would access the area to do cleanup under the tail pulley with a shovel. With continued normal operations, a miner would reasonably likely suffer a foreseeable fatal injury from becoming entangled in the moving machine part.

(Ex. G-8). Inspector Peck determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to result in a fatal accident. Further, he determined that the violation was significant and substantial (“S&S”) and that one person would be affected. In addition, he found that the violation was the result of moderate negligence on the part of the operator.

            Section 56.14107(a) provides that “[m]oving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.” The Secretary proposes a penalty of $1,795.00 for this citation.

            A. Background and Summary of Testimony

            Inspector Peck testified that he issued the subject citation because there was an opening at the back of the tail pulley area that exposed the moving machine parts. (Tr. 14). He took a photograph of the alleged violation that shows the subject opening. (Ex. G-1). The photograph shows that the pulley was a fluted, self-cleaning pulley. Peck testified that there is a greater chance of someone becoming entangled when a pulley is fluted. (Tr. 20). He determined that, if a miner were to become entangled in the tail pulley, it is likely that he would suffer a fatal injury. (Tr. 18). He based this conclusion on the size of the opening. He felt that there was “a potential for the whole person to be pulled in and then suffer serious injury, possibly amputation, serious entanglement.” Id. The cause of death could be “blunt force trauma, loss of a limb, shock, loss of blood.” (Tr. 19). He based this conclusion on his MSHA training and on information about similar accidents. (Ex. G-9). A miner could also suffer a wide range of non-fatal injuries that are permanently disabling. (Tr. 21-24).

            Inspector Peck testified that an injury was reasonably likely. Miners used a short D-handled shovel to clean up accumulations under and around the tail pulley. The area was shoveled while the belt was operating. (Tr. 25). The inspector testified that Lee Yager told him that the area was cleaned up while the belt was running because he did not want to shut the plant down. Id. Yager’s statement was a factor in the inspector’s S&S determination. (Tr. 25-26). The operator terminated the violation by installing a guard over the opening. (Tr. 27; Ex. G-2). The photo of the terminated tail pulley shows a shovel handle sticking out. The shovel was placed in that location to facilitate cleaning up accumulations around the tail pulley. The photos taken by the inspector show that the area around the tail pulley was easily accessible to miners. (Ex. G-3 and G-4).

            Inspector Peck determined that the operator’s negligence was moderate, in part because he was told that the guarding for the tail pulley had been in the same condition for many years and it had never been cited before. (Tr. 31). The violation was obvious, however. Id.

            Inspector Daniel Scherer also testified for the Secretary. He inspected the Gravel Pit Mine on June 2, 2009. (Tr. 35). He testified that he issued about ten citations during his inspection including citations for inadequate berms and inadequate guards. One of the berm citations was on a roadway that passed by the tail pulley that was cited in the present case. (Ex. G-5 and G-6). Rick Yager, who was responsible for the day-to-day operation of the crusher, was with Inspector Scherer when he issued the berm citation. (Tr. 44). The photo that the inspector took shows that the tail pulley was guarded in the same manner as it was on August 17, 2010, when Peck inspected the crusher. (Ex. G-5). Inspector Scherer did not consider the tail pulley to be adequately guarded on June 2, 2009, but he did not issue a citation. Rick Yager advised the inspector that accumulations were cleaned up with a loader and that there was no foot traffic in that area. (Tr. 46). Scherer testified that, in response, he told Yager that the inadequate guarding on the tail pulley violated section 56.14107(a), but that he was “giving him compliance” because of the location of the screening plant at that time. Id. Inspector Scherer believed that the presence of the elevated roadway and the berm that was required to be constructed immediately adjacent to the back of the tail pulley would make it difficult for anyone to become entangled in the tail pulley. (Tr. 46-47, 55; Ex. G-5). Scherer believed that Rick Yager understood what he was telling him, but Yager would often walk away when he was trying to tell him something. This particular MSHA inspection was rather heated because Scherer withdrew a miner for not being properly trained. The next regular safety and health inspection MSHA conducted was the one conducted by Inspector Peck on August 17, 2010. (Tr. 53-54; Ex. G-13).

            Lee Yager testified that he has been operating the subject gravel pit for about 20 years. (Tr. 59). He has worked in and around sand and gravel operations since he was 16 years old. He testified that he does not understand why Inspector Scherer did not issue a citation on June 2, 2009, if the lack of a guard at the back of the tail pulley could cause a fatal injury. (Tr. 60). If it was a violation on August 17, 2010, it was also a violation on June 2, 2009. Mr. Yager maintains that he received a citation October 16, 1996, on the same tail pulley and he installed the guards that were present on August 17, 2010, to abate the condition. (Tr. 60-61; Ex. GP-1). No MSHA inspector had cited the guard as being inadequate between October 1996 and August 2010. Mr. Yager testified that he is contesting the moderate negligence determination of Inspector Peck. (Tr. 62). He further stated that he will be changing the guards on the tail pulley in order to completely enclose the pulley “so the tailings can drop out the bottom and we get them out the side, which would make it safer, I think.” Id. He believes, however, that an accident was unlikely. (Tr. 63). On cross-examination, he acknowledged that the crushing plant was typically moved to a different location about once or twice a year. (Tr. 65).

            B. The Violation

            It is important to recognize that the Commission and the courts have uniformly held that mine operators are strictly liable for violations of safety and health standards. See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (10^th Cir. 1989). “[W]hen a violation of a mandatory safety standard occurs in a mine, the operator is automatically assessed a civil penalty.” Id. at 1197. It is clear that the condition cited by Inspector Peck violated section 56.14107(a) because the tail end of the cited conveyor was not guarded to protect persons from contacting the tail pulley. The violation is therefore affirmed.

            C. Significant and Substantial, Gravity and Negligence

            An 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.” 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:

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.

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 of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

            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 terms of “continued normal mining operations.” U.S. Steel, 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).

            As discussed above, I find that Respondent violated the cited mandatory safety standard. Further, I find that a discrete safety hazard contributed to by the violation existed. I also find that it was reasonably likely, assuming continued mining operations, that the hazard contributed to by the violation would have resulted in an injury of a reasonably serious nature. I credit the testimony of Inspector Peck on this issue which establishes the S&S nature of the violation. The evidence clearly establishes that the tail pulley was a fluted, self-cleaning pulley and that miners were shoveling up accumulations while the belt was operating.

            I also find that the violation was serious. Inspector Peck determined that the injury that was most reasonably likely was a fatal accident. Although I find that a fatal injury was possible, I find, based on the record, that the most likely injury was a permanently disabling one. It is more likely that someone would be severely injured if he became entangled in the pulley system. A fatal injury was possible, however. See e.g. Darwin Stratton & Son Inc., 22 FMSHRC 1265 (Oct. 2000) (ALJ).

            At the close of the hearing, the Secretary moved to increase the negligence of the operator to high and to increase the penalty to $2,500.00. (Tr. 67). She based this motion on the fact that Inspector Scherer warned Rick Yager that the tail pulley needed to be guarded at the back. I find that increasing the degree of negligence and increasing the civil penalty is not warranted. Indeed, I find that the negligence of Respondent was low. I credit the testimony of Inspector Scherer concerning the conversation he had with Rick Yager on June 2, 2009. During that conversation, Scherer warned Rick Yager that if the crusher were moved to a different location that was not immediately adjacent to a bermed roadway, the unguarded end of the tail pulley would be in violation of the safety standard. When Inspector Peck inspected the crusher in August 2010, the crusher had been moved and the employees were exposed to the hazard of unguarded moving machine parts. Inspector Scherer admitted, however, that due to the acrimony between MSHA and the operator during his June 2009 inspection, Rick Yager may have walked away during the conversation and may not have understood what he was saying. I credit this testimony and find that it was unlikely that Rick Yager comprehended the importance of that conversation.

            Lee Yager credibly testified that the cited guard was installed following an MSHA inspection conducted on October 16, 1996, and that guard was deemed sufficient to terminate the citation that was issued. The guard was not cited as being inadequate until Inspector Peck’s inspection in August 2010. The Secretary argues that the citation Yager is relying on (Citation No. 4653877) was issued for the guard on the tail pulley of the oversize conveyor, which was about four feet above the ground. (Tr. 51, 67-68; Ex. GP-1). She maintains that the cited tail pulley was not the tail pulley cited by Inspector Peck. Mr. Yager testified that his crushing plant does not include an oversize conveyor because oversized material is not a problem for this quarry. (Tr. 68-69). He maintains that the 1996 citation was issued on the same tail pulley as the citation issued by Inspector Peck.

            I need not resolve this issue. I find that Lee Yager genuinely and sincerely believed that the existing guard on the cited the tail pulley was safe and was in compliance with the safety standard. He based this conclusion in large part on the fact that the tail pulley had not been cited by any MSHA inspector since at least October 16, 1996. I find that Respondent’s negligence was low.

            D. Size of the Operator.

            I find that Respondent is a very small, intermittent operator. Information about Respondent at MSHA’s website indicates that in 2010, Respondent employed three people who worked a total of 3,489 hours. In 2011, the mine also employed three individuals who worked a total of 3,704 hours.

II . APPROPRIATE CIVIL PENALTY

            Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an appropriate civil penalty. The record shows that Respondent had ten paid violations at this facility during 15 months preceding August 17, 2010. (Ex. G-10). Five of these violations were S&S. The total penalty paid for the ten violations was $1,180.00. Respondent is a very small operator. The penalty assessed in this decision will not affect the operator’s ability to continue in business. The violation was abated in good faith. My gravity, negligence, and size findings are set forth above. Based on the penalty criteria, I find that a penalty of $500.00 is appropriate for this violation. My reduction of the penalty from that proposed by the Secretary is primarily based on my consideration of the negligence of the operator and my consideration of the appropriateness of the penalty to the size of the business of the operator.

III. ORDER

            For the reasons set forth above, Citation No. 6588043 is MODIFIED to reduce the negligence of the operator to low. Albert Lee Yager doing business as Gravel Pit Company is ORDERED TO PAY the Secretary of Labor the sum of $500.00 within 30 days of the date of this decision.

                                                                        /s/ Richard W. Manning

                                                                        Richard W. Manning

                                                                        Administrative Law Judge

Distribution:

Pamela F. Mucklow, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708 (Certified Mail)

Albert Lee Yager, Owner, Gravel Pit Company 612 SW 10^th Street, Madison, SD 57042 (Certified Mail)

RWM