FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

April 5, 2013

DECISION

Appearances:              For the Secretary: Pamela F. Mucklow, Esq., Denver, CO

                                    For the Respondent: Kent Tester, Esq., Clinton, AR

Before:                        Judge Tureck

            These cases are before me on two Petitions for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against Drum Sand & Gravel, Inc. (“Respondent”), pursuant to Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§815 and 820 (“ Mine Act”). The first, filed on November 18, 2010, was docketed as CENT 2010-931-M. It alleges eight violations of the Mine Act and assessed $10,150 in penalties. The second, filed on April 21, 2011, was docketed as CENT 2011-93-M. It alleges a single violation of the Mine Act and assessed a penalty of $3,600. Respondent contends that four of the citations should be vacated and the penalties reduced in the other five.  On motion by the Secretary, the two cases were consolidated for hearing and decision. A formal hearing was held in Memphis, Tennessee on January 31 and February 1, 2012. At the hearing, Government Exhibits 1-22, 17-A and 18-A, and Respondent’s Exhibits 1 and 2, were admitted into evidence, and each party provided testamentary evidence. Both parties then filed post-hearing briefs, the last of which was received on May 25, 2012.

Findings of Fact and Conclusions of Law

            Respondent operates a sand and gravel mine in Harrisburg, Arkansas. At the time of the hearing, five people worked at the mine, including the company’s owner and president, Jeff Drum, and its office manager and health and safety coordinator, Tiffany Manuel. Seven people, including Drum and Manuel, worked at the mine at the time of the inspection. TR2 6, 91-92.

            MSHA conducted an inspection of the Mine over three days, from April 19-21, 2010. The inspection was conducted by Steve Medlin, who had been a mine inspector for MSHA since August, 2002. He arrived at the Mine at about 11:00 a.m. on April 19^th, where he met Ms. Manuel. Manuel had just started working for Respondent that morning. Medlin had inspected the Mine before, so he knew who was in charge. TR1 28. He asked to see Mr. Drum, but he was not at the Mine. He then asked to see Tony Ezel, who was the mine foreman. TR1 26-27. So Manuel called Ezel, who met Medlin at the scale house, and Medlin began his inspection by driving around the entire mine with Ezel for about an hour in the mine’s pick-up truck. TR1 127-28. Medlin issued Citations 6568738 through 6567843 on April 19^th; he issued Citations 6567844 through 6567846 on April 20^th. He returned to the Mine on April 21^st to go over the paperwork and to have a close out conference. TR1 62.

            The nine citations issued by Medlin will be addressed seriatim.

CENT 2011-93-M

Citation 6567840

            This citation alleges a violation of 30 C.F.R. §56.14207, which requires the wheels of unattended vehicles to be chocked or turned into a bank when parked on a grade. The vehicle in question was a front-end loader. The citation states that injury is unlikely, but could reasonably be expected to be fatal; the violation is not significant and substantial (hereafter “S&S”); one person would be affected; negligence was high, and the violation was immediately terminated by chocking the wheels. Respondent was assessed a penalty of $3600 as a special assessment pursuant to §100.5(a) for this violation.

            Respondent does not contest the occurrence of the violation, but contends that the penalty is excessive. Respondent alleges that its negligence was moderate, not high, and the gravity of the violation was low. It contends that the penalty should be based on a determination of 74 penalty points rather than 104 which, under the penalty conversion table found at §100.3(g), would reduce the penalty to $343. However, the penalty, as a special assessment, was not based on the penalty conversion table. Rather, it was based on MSHA’s determination that the violation was serious and Respondent’s negligence high.

            I find the imposition of a $3,600 penalty here puzzling even though §56.14207 is one of the Rules to Live By. The citation states that an injury was unlikely. In fact, there was no likelihood of an injury. The front-end loader’s bucket was on the ground, the parking brake was set, and the grade on which the loader was parked was only two percent. GX 1-3; TR1 47, 53. Further, Medlin had the loader moved to the steepest grade at the Mine that the loader traveled and had it parked there with a full load, and the parking brake held. TR1 53, 66-69. Also, the bucket and the back left wheel of the loader may have been parked in the gravel (TR2 28-29), which would have impeded the loader’s movement.

Moreover, the violation was found to be not S&S.

            Nevertheless, that §56.14207 is one of the Rules to Live By is material. MSHA places great emphasis on violations of these rules, since they account for a large percentage of miners’ deaths. TR1 50-51. Due to the emphasis MSHA places on the Rules to Live By, it would be difficult to believe that Respondent was unaware of them. Accordingly, I agree with the Secretary that Respondent’s negligence in not chocking the wheels of the loader was high. I also agree that an injury caused by the loader if it rolled down the grade could be fatal. But since in this case there was no likelihood of injury, that an injury from a violation of §56.14207 could be a fatality has little application here.

            Based on the above, I find that a penalty of $500 is appropriate for the violation of §56.14207 in this case.  

CENT 2010-931-M

Citation 6567838

            This citation alleges a violation of §56.4101, which requires warning signs prohibiting smoking and open flames to be posted where fire or explosive hazards exist. Specifically, it is alleged that Respondent did not have a warning sign prohibiting smoking or an open flame posted in the immediate vicinity where oxygen and acetylene tanks were stored. The citation states that injury is reasonably likely and could reasonably be expected to be lost workdays or restricted duty; the violation is S&S; one person would be affected; negligence was high; and the violation was immediately terminated by the posting of a warning sign. MSHA assessed a penalty of $2,106 for this violation based on assigning 98 penalty points for the violation and giving Respondent a ten percent reduction for good faith.

            Respondent has not challenged MSHA’s contention that these tanks could present fire and explosion hazards. Respondent also concedes that there was no warning sign in the vicinity of the area where the tanks were stored when Medlin was conducting the inspection of the Mine. However, Respondent contends that one was posted as late as the morning of the inspection, and cannot explain when or how it disappeared. TR2 31, 71. Medlin agreed that there had been a warning sign on his previous inspections of the Mine. TR1 94-97. Further, MSHA concedes that there was an area outside the scale house that had been set aside by Respondent for smoking. It was about 38 feet from the tanks (TR2 31) and did not present a hazard; in fact, Medlin used to smoke there. TR1 85, 105. There would have been no reason for someone to smoke closer to the tanks. Apropos of this, Medlin took three photographs in regard to this citation. Two show the smoking area by the scale house, one of which is a close-up showing about two dozen cigarette butts. GX 7, 8. The third is of the tanks and the surrounding area. GX 5. Although Medlin contends that he saw a cigarette butt as close as ten feet to the tanks, in this photograph no butts are visible.

            Why Medlin took photographs showing cigarette butts in an area where there is no contention that smoking was unsafe, but failed to take a photograph of the one butt it is contended caused a hazard, is inexplicable. Even if there was a single butt as close as ten feet to the tanks, it would not prove that people were smoking there. There are undoubtedly many possible explanations for finding a single butt ten feet from the tanks even if no one was smoking there, a likely one being that it blew over from the smoking area. There is no credible evidence that anyone smoked nearer to the tanks than 38 feet, and the Secretary agrees that smoking that far from the tanks was not hazardous.

            Although the citation contends that an injury was reasonably likely due to the absence of a warning sign near the tanks, I find that an injury was unlikely. Since there was a designated smoking area only about 38 feet from the tanks which, judging from the number of cigarette butts in the area, was used regularly, there would have been no reason for anyone to smoke close enough to the tanks to create a hazard. The absence of cigarette butts near the tanks is evidence that smoking did not occur there. Further, I find Respondent’s negligence to have been moderate, not high. High negligence requires an absence of mitigating circumstances, but there are mitigating circumstances here. Medlin testified that a warning sign had been present in his previous inspections of the Mine. In addition, I believe that Respondent was unaware that warning sign was missing.

            Reducing the gravity of the violation from reasonably likely to unlikely reduces the gravity points from 30 to 10. Reducing the negligence from high to moderate lowers the penalty points from 35 to 20. A reduction of 35 points from the 98 calculated by MSHA leaves 63 penalty points. Under the penalty conversion table, 63 points equates with a penalty of $142. When reduced by ten percent for good faith, as MSHA did for each citation other than Citation 6567838, the resulting penalty equals $127.80.

            Finally, I find that this violation was not S&S. 30 U.S.C. § 814(d)(1) provides: 

If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of a nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this [Act].

The Commission and several courts of appeals have agreed that four conditions must be met to find that a violation is “significant and substantial”:

[T]he 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. Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984); see also, Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir.1988); Consolidation Coal Co. v. Federal Mine Safety and Health Review Comm'n, 824 F.2d 1071, 1075 (D.C.Cir.1987).

Here, the violation did not result in a safety hazard, and injury was unlikely because there is no credible evidence that anyone smoked away from the designated smoking area. Accordingly, the violation was not S&S. 

Citation 6567839

                                      This citation alleges a violation of §56.16006, which requires that valves on compressed gas cylinders be protected by covers when being transported. It states that oxygen and acetylene tanks without guards on the valves were being transported in the bed of the plant service truck (a pick-up truck). The citation further states that injury is reasonably likely and could reasonably be expected to be fatal; the violation is S&S; one person would be affected; negligence was moderate; and the violation was immediately terminated by installing guards over the valves of the tanks.

                                    Respondent states in its brief that it contests the likelihood of injury and the severity of injury due to the violation, and argues that the penalty points should be reduced from 98 to 79, lowering the penalty from the $2,106 assessed to $512. Resp.’s Brief at 5-6. It points out that Medlin saw the oxygen and acetylene tanks in the bed of the pick-up truck as soon as Ezel drove up to pick him up for the inspection (TR1 113), and there is no evidence Medlin did not notice that the valves of the tanks were uncovered. Yet he rode in the truck with Ezel for at least an hour during his inspection while there were no guards on the valves of the tanks. TR1 127-28. Respondent contends that if an injury was likely as a result of the violation, Medlin would not have ridden in the truck for an hour. That is a reasonable argument. Moreover, the evidence establishes that the truck is not driven on public roads, considerably lessening the likelihood of injury. However, if an injury was to occur, I accept Medlin’s testimony that the injury could be fatal. TR1 114-18. Respondent did not present any evidence to the contrary.

                                    Under these circumstances, I find that an injury was unlikely due to the violation, although if an injury did occur it could be fatal. Moreover, the moderate negligence determination by the inspector is reasonable, and Respondent has not challenged it. Accordingly, the points for likelihood of injury should be reduced from 30 to 10, which leaves a total of 78 points. The penalty for 78 points is $473. When reduced by ten percent for good faith, the penalty becomes $425.70.

                                    Finally, I find that this violation was not S&S, since it did not contribute to a discrete safety hazard. Had this violation actually caused a hazardous condition, Medlin would not have ridden in the truck with the uncovered tanks for an hour.

Citation 6567841

                                    This citation alleges a violation of §56.14132(a), which requires manually operated horns to be maintained in functional condition. The Secretary alleges that the horn on a front-end loader did not work. The citation states that injury was reasonably likely and could reasonably be expected to be permanently disabling; the violation is S&S; one person would be affected; negligence was moderate; and the violation was terminated within two hours. The penalty was assessed at $946, based on 88 penalty points.

                                    Respondent does not dispute that the horn failed to work during Medlin’s inspection. But Ms. Manuel testified that the horn worked at the pre-shift examination that morning (TR2 94-97), and the Secretary does not contend otherwise. TR1 142. Although the Secretary argues that negligence was moderate because the front-end loader operator should have known that the horn was not working, the evidence does not suggest that the operator would have had a reason to know that the horn was not working after the pre-shift examination. Medlin concedes that the operator may not have needed to use the horn between the pre-shift examination and his inspection. TR1 143. Under these conditions, I find that Respondent was not negligent in the occurrence of this violation.

                                    Respondent also argues that there was no likelihood of injury due to the violation because there was a site awareness program in place and all of the miners communicated by radio. Resp.’s Brief at 7. Respondent did not explain this contention, and I fail to see why either of these factors would reduce the likelihood of injury.

                                    Finally, I find that this violation was S&S. Although a vehicle’s horn is not needed often, when it is needed - to warn another vehicle or a pedestrian of imminent danger - the horn is an essential safety device. In those situations where a horn is needed, a non-functioning horn clearly poses a discrete safety hazard which is reasonably likely to result in an injury; and since a front-end loader is a large and heavy vehicle, that injury is likely to be serious. Therefore, the requirements for an S&S violation are met.

                                    Respondent contends that the penalty points determined by the Secretary should be reduced from 88 to 53, with the assessed penalty accordingly reduced to $112. These reductions are not explained, and the bases for these reductions are obscure. Reducing negligence from moderate to none, as I have found, provides a reduction of 20 penalty points. Under the penalty conversion table, 68 penalty points equates with a penalty of $212. With a ten percent reduction for good faith, I impose a penalty of $190.80 for this violation.

Citation 6567842  

                                    This citation alleges a violation of §56.14103(c)(2), which requires that mobile equipment not be modified to obscure a driver’s visibility necessary for safe operation. Specifically, it is alleged that the rear side window of a front-end loader has been removed and the opening was covered in opaque white plastic. The citation states that injury was reasonably likely and could reasonably be expected to be lost workdays or restricted duty; the violation is S&S; one person would be affected; negligence was high; and the violation was terminated within two hours. MSHA assessed a penalty of $2,341 for this violation based on 98 penalty points. However, in her brief, the Secretary argues for the imposition of a $2500 penalty. She contends that Medlin filled out the citation incorrectly, and meant to check “fatal” in box 10(b) of the citation form rather than “lost workdays or restricted duty”. Sec’y’s Brief at 24 n.7.

                                    The only evidence presented by the Secretary to support the violation is a photograph of the side of the front-end loader showing plastic covering most of the window opening (GX 13) and Medlin’s testimony of what he thinks can be deduced from this photo. The photograph shows that the piece of plastic did not cover the entire window area. Somewhere between a quarter and a third of the window opening from the bottom was uncovered. Respondent argues that this photograph fails to show “exactly how obstructed the miner’s view was . . .” since it was taken from outside the loader and not from the operator’s seat. Resp.’s Brief at 7; see also TR1 154-55. Medlin conceded that a photograph from inside the cab of the loader would have been more helpful in determining what the operator could see than the one he took from outside, and that he had the opportunity to take such a photograph. TR1 168. Morever, the photograph was not taken right away. Rather, by the time the photograph was taken the plastic had been removed from the window. To show how the window appeared with the plastic covering in place, Ezel is holding the plastic over the window opening. TR1 162-63. But it does not look like Ezel is holding the plastic all the way to the top of the window opening, and the unobstructed opening when the loader was operating may have been larger than the photograph indicates. Medlin also admitted that it was possible that the operator would have been able to reach the plastic and lift it while he is backing up if he was not operating the bucket at the time. TR1 163-64. Further, Medlin did not measure the window opening or the part of the window opening which was not obstructed, so precisely how much of the window opening was unobstructed cannot be determined. TR1 150.

                                    Section 56.14103(c)(2) is violated only if the obstruction to the driver’s visibility affects the safe operation of the vehicle. In this respect, it is relevant that the cab of front-end loaders is high off the ground. See GX 1-3, 13. To see other vehicles or pedestrians, the operator would be looking down rather than at eye level. The photograph of the obstructed window opening of the front-end loader indicates that the operator of the loader would have been able to look down through the uncovered part of the opening to see other vehicles and pedestrians. Further, the operator would have had full visibility to the right side of the loader through the door, and to the rear through the rear window. Therefore, I find that the Secretary has failed to prove that the operator’s vision was impaired in a way that would have affected the safe operation of the loader. Accordingly, no violation of §56.14103(c)(2) occurred, and Citation 6767842 is vacated.  

Citation 6567843

                                    This citation alleges a violation of §56.14132(b)(1)(i), which requires mobile equipment to have an automatic reverse-activated alarm signal when the operator has an obstructed view to the rear. By motion dated January 10, 2012, the Secretary moved to amend this citation to plead in the alternative a violation of §56.14132(a), which requires mobile equipment to have audible warning devices maintained in functional condition. Without objection, the citation was amended to plead a violation of this section of the regulations in the alternative.

                                    The Secretary alleges that the reverse-activated alarm of a track hoe did not function. The citation states that injury is unlikely and could reasonably be expected to be lost workdays or restricted duty; the violation is not S&S; one person would be affected; negligence was high; and the violation was terminated the following morning. A penalty of $425 was assessed for this violation. Respondent argues that this citation should be vacated because the track hoe was not in operation at the time of the inspection.

                                    Section 56.14132(b)(1)(i) applies only when the operator of mobile equipment has an obstructed view to the rear, and having an observer to signal when it is safe to back up can take the place of an automatic reverse-activated signal alarm. It clearly applies only when the equipment is in motion. Since the track hoe was not in motion during the inspection (TR1 180), Respondent could not have violated this section of the regulations. As the Secretary obviously realized in moving to amend the citation, §56.14132(a) is the section of the regulations applicable to the facts in this case. This section is not dependent on the equipment actually being in use at the moment; a violation occurs if the applicable warning devise is not in working condition.

                                    Medlin testified that he had Ezel check the auto-reverse alarm and it did not work. TR1 179, 184. Jeff Drum testified that sometime between a few days and a few weeks before the inspection the track hoe had gotten stuck in deep mud in the pit. TR2 47-48; see also TR1 178-79. Ezel told Medlin that the alarm was probably full of mud. TR1 179. There is no evidence that the track hoe had been used since it had gotten stuck in the mud. In fact, Medlin testified that it had not been operated without the reverse alarm working. TR1 185. Medlin also testified that Ezel would not have known the reverse-activated alarm was not functioning until he had him test it during the inspection, presumably because the track hoe had not been used since it got stuck in the mud. Id.

                                    Despite the fact that the automatic reverse-activated signal alarm did not work when it was tested, I hold that Respondent did not violate §56.14132(a). Section 56.14100(a) requires a pre-shift examination of self-propelled mobile equipment before it is placed in operation on that shift, and §56.14100(b) requires defects on such equipment to be corrected “in a timely manner to prevent the creation of a hazard to persons.” Section 56.14132(a) must be interpreted with these related regulations in mind. Since the track hoe was not going to be used on April 19^th, a pre-shift examination was not required. Further, since it was not going to be used, there was no hazard to persons which had to be corrected at that time. Accordingly, since Respondent was not required to conduct a pre-shift examination of the track hoe, and since no safety hazard was going to be created, it would be inconsistent with §§56.14100(a) and (b) to hold that the failure to maintain the automatic reverse-activated signal alarm on a piece of equipment which was not going to be used could violate §56.14132(a). Holding otherwise would require mine operators to conduct pre-shift examinations of each machine at a mine regardless of whether it was going to be used during that shift, which not only would be inconsistent with §56.14100(a) but would be onerous and serve no purpose. Therefore, this citation is vacated.

Citations 6567844 and 6567845

                                    These citations allege a violation of §62.120, which states: “If during any work shift a miner’s noise exposure equals or exceeds the action level the mine operator must enroll the miner in a hearing conservation program . . . .” The citations allege that noise samples were taken on April 20th of a utility worker (Ezel) and front end loader operator (Pablo Martinez), respectively, that exceeded the action level (see §62.101), but the miners were not enrolled in a hearing conservation program. The citations state that injury is reasonably likely and could reasonably be expected to be permanently disabling; the violations are S&S; one person would be affected by each violation; negligence was moderate; and the citations were terminated on May 17, 2010. However, during his testimony, Medlin stated that he made a mistake in listing the likelihood of injury as reasonably likely. TR1 201. He should have listed injury as unlikely, according to the citation writing handbook. TR1 199. He testified that the assumption is that if the action level is exceeded, the miners would be enrolled in a hearing conservation program, which would prevent a hearing loss. TR1 200-01. He also testified that these violations were not S&S. TR1 207.

                                    It is Respondent’s position that no violations occurred since they were not under an obligation to enroll Ezel and Martinez in a hearing conservation program until it discovered they were exposed to noise in excess of the action level. Once Respondent was informed that Ezel and Martinez were exposed to noise levels in excess of the action level, Respondent instituted a hearing conservation program and the violations were terminated. GX 17a, 18a.

                                    During the inspection, four miners were subjected to noise monitoring. Only Ezel and Martinez exceeded the action level. TR1 211. Further, during previous inspections, the noise to which Respondent’s miners were exposed never reached the action level. TR1 195. Drum testified that Respondent never monitored its miners’ noise exposure. TR2 50. He did not believe there was a requirement to do so, and he had never been cited for a noise violation. TR2 51. However, he is wrong that there is no requirement to monitor miners’ noise exposure - §62.110(a) imposes such a requirement. Nevertheless, Respondent was not charged with the failure to establish a noise monitoring system; Respondent was charged with failing to set up a hearing conservation program “during any work shift a miner’s noise exposure level exceeds the action level . . . .” The Secretary’s case rests on speculation that since Ezel and Martinez were exposed to noise levels in excess of the action level on April 20, 2010, they must have been exposed to such noise levels previously, and therefore a hearing conservation program should have already been in place. But speculation cannot take the place of concrete evidence; and that Ezel and Martinez were exposed to noise levels in excess of the action level on those days does not mean they were exposed to such noise levels previously. When MSHA previously inspected the mine, noise levels did not equal or exceed the action level. Further, Respondent offered plausible explanations for why Martinez and Ezel may have been exposed to more noise that day than usual. The loader’s air conditioner was not working, so Martinez was operating the loader with the door open; further the right rear window was missing. TR1 206. In regard to Ezel, the air conditioner in the control shack was off, and he had the window open. TR1 224; RX 1, at 2. Medlin also noted that the CB radio was “very loud” and the music radio was playing “pretty loud”. RX 1, at 2. He did not ask Ezel whether he always played the radios that loudly or why he had the window open rather than the air conditioner on.

                                    Since there is no evidence to support a finding that Martinez and Ezel were exposed to noise levels at or above the action level prior to the inspection on April 20, 2010, and Respondent enrolled both miners in a hearing conservation program in a timely manner once it was determined that they were exposed to noise levels in excess of the action level, the Secretary has failed to prove that Respondent violated §62.120. Therefore, Citations 6567844 and 6567845 must be vacated.

Order 6567846

                                      This order alleges a violation of §46.8(a)(1), which requires that a newly hired miner be provided with no less than eight hours of annual refresher training. By motion dated January 25, 2012, the Secretary moved to amend this order to a violation of §46.8(a)(2), which requires providing miners with refresher training not later than 12 months following the previous refresher training. Section 46.8(a)(1) had been cited incorrectly in the order since the alleged violation concerned Jeff Drum’s failure to obtain refresher training, and Drum was not a newly hired miner. Without objection, that amendment was accepted.

                                    The order states that injury is reasonably likely and could reasonably be expected to be lost workdays or restricted duty; the violation is S&S; one person would be affected; and negligence was high. Drum was ordered withdrawn from the mine until he completed his refresher training. Drum testified that he completed the training by watching eight hours of videos within two days of the inspection. TR2 18. Respondent was assessed a penalty of $971 for this violation.

                                    Respondent contends that Drum was not a miner at the time of the inspection, and therefore he did not have to undergo refresher training. Alternatively, Respondent argues that “because of the circumstances and the very short duration of noncompliance, which was only three weeks”, the penalty should be reduced to $112.

                                    Section 46.2(g)(1)(i) defines “miner” as “[a]ny person, including any operator or supervisor, who works at a mine and who is engaged in mining operations.” Section 46.2(h) defines “mining operations” as “development, drilling, blasting, extraction milling, crushing, screening, or sizing minerals at a mine; maintenance and repair of mining equipment; and associated haulage of materials from within the mine from these activities.”

                                    Drum is the sole shareholder of Respondent. At the time of the hearing he was working as a laborer at the mine on a regular basis, due to a reduction of the number of employees working there between the time of the MSHA inspection and the hearing. TR2 6, 9. But he was not working regularly as a laborer at the time of the inspection. At that time, he was working primarily at his cattle farm, which is adjacent to the mine. TR2 10. Tony Ezel was the plant foreman, and had been for four or five years prior to the inspection. TR2 11. Drum testified about his regular activities at the mine at the time of the inspection as follows:

A. I would usually come in the office at 7:00 in the morning and when it got to 8:00, I would leave. . . .

. . .

Q. And what would you do in the office from 7:00 to 8:00?

A. I would usually get caught up on the day before, . . . make my telephone calls. If they were out of diesel or order stuff such as that, you know. If they needed parts, find out if they needed parts, go get them, such, you know, just a gofer.

Q. Okay

A. And just see that things were going like they were supposed to be going . . . .

. . .

Q. Sir, did you work at all?

. . . .

A. [S]o like if they’ve had something that, you know, that they thought they was - someone would get injured or something they couldn’t do, they’d call me, I’d come and do it. I either hired the person - I’d either do it myself or hire someone to get whatever done so, you know, to continue operating.

TR2 12-14. See also TR2 48.

                                    Consistent with this testimony, Drum testified that when the track hoe became stuck in deep mud, he and his brother were the ones who pulled it out. TR2 14, 48. Further, he testified that he would drive around the mine four to five times a day to check things out. TR2 16-17. He also brought the mail to the mine between 12:30 and 1:00 p.m. every day. TR2 86.

                                     Despite Respondent’s protestations, I find that Drum was a miner on April 19-20, 2010. He clearly meets the first part of the definition of a miner since he worked at the mine every day. He also meets the second part of the definition. Although Ezel was the mine foreman, Drum took an active role in the mining operations. He would drive around the mine several times a day, presumably to assure that things were running smoothly, and would perform labor in the mine when necessary. Accordingly, I find that he was engaged in mining operations.

                                    Since Drum was a miner, §46.8(a)(2) requires that he undergo refresher retraining within one year of his previous training. The inspection occurred more than a year after Drum had last completed refresher training, so he was in violation of that section of the regulations.

                                    The next issue to be resolved is the degree of Respondent’s negligence. The Secretary contends that Respondent’s negligence was high because Drum admitted to Medlin that he knew he was supposed to undergo the training but postponed it because he did not have time. TR1 244-45. I accept Medlin’s testimony that this conversation occurred. However, Medlin forthrightly admitted that he has changed his mind regarding the likelihood of injury. Since Drum was only three weeks late in his training, an injury due to the violation was unlikely. TR1 245-46. Further, Drum testified that he completed the training by watching eight hours of videos within two days of the inspection. TR2 18. Although Medlin believes that Drum’s short period of violation affects only the likelihood of injury, I find it also is relevant to mitigate the degree of negligence. Another factor which mitigates against a finding of significant negligence is that Drum testified that he is certified to teach the miner refresher training, and has been so certified for many years. TR2 18. Therefore, it is hard to see how his failure to attend the training in a timely manner was significant, and I find that Respondent’s negligence was low. Reducing Respondent’s negligence from high to low reduces the penalty points found for this violation from 87 to 62, which in turn lowers the penalty from $971 to $131.

ORDER

Based on the foregoing, IT IS ORDERED that:

Citation 6567840 - Likelihood of injury is modified from “unlikely” to “no likelihood”, and the penalty is reduced from $2,106.00 to $500.00.

Citation 6567838 - Likelihood of injury is reduced from “reasonably likely” to “unlikely”, negligence is reduced from “high” to “moderate”, “significant and substantial” is changed to “not significant and substantial”, and the penalty is reduced from $2,106.00 to $127.80.

Citation 6567839 - Likelihood of injury is reduced from “reasonably likely” to “unlikely”, “significant and substantial” is changed to “not significant and substantial”, and the penalty is reduced from $2,106.00 to $425.70.

Citation 6567841 - Negligence is reduced from “moderate” to “none”, and the penalty is reduced from $946.00 to $190.80.

Citations 6567842, 6567843, 6567844 and 6567845 are vacated.

Order 6567846 - Likelihood of injury is reduced from “reasonably likely” to “unlikely”, negligence is reduced from “high” to “low”, and the penalty is reduced from $971.00 to $131.00.

Respondent shall pay a penalty in the amount of $1,375.30 within 30 days of the date of this Decision.

/s/ Jeffrey Tureck

effrey Tureck

Administrative Law Judge

Distribution:

Pamela F. Mucklow, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, CO 80202-5708   mucklow.pamela.f@dol.gov

Kent Tester, Esq., 230 Hwy. 65 North, Suite 7, Clinton, AR 72031 kent@kenttester.com