FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

April 16, 2013

DECISION

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

Larry R. Evans, Corporate Health and Safety Manager, Oil-Dri Corporation of America, Ochlocknee, Georgia, for Respondent.

Before:            Judge Bulluck

            This case is before me upon a Petition for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”) on behalf of her Mine Safety and Health Administration (“MSHA”), against Taft Production Company, (“Taft”), pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815. The Secretary seeks a total civil penalty in the amount of $9,497.00 for six alleged violations of her mandatory safety standards.

            A hearing was held in Los Angeles, California. The following issues are before me: (1) whether Respondent violated the standards; (2) whether the violations were significant and substantial, where alleged, and (3) whether the violations were attributable to Taft’s moderate or high negligence, as alleged. The parties’ Post-hearing Briefs are of record.

            For the reasons set forth below, I AFFIRM the citations, as modified, and assess penalties against Respondent.

I. Stipulations

            The parties stipulated as follows:

            1. Respondent Taft Production Company, to be known as Taft, is engaged in mining at a surface metal/nonmetal mine. The mine identification number is 04-02964. The mine is near Taft, California.

            2. Taft’s operations at the mine affect interstate commerce.

            3. Taft is an operator as defined in section 3(d) of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 803(d), at the mine where the citations at issue in this proceeding were issued.

            4. Operations of Taft at the mine at which the citations were issued in this proceeding are subject to the jurisdiction of the Mine Act.

            5. The administrative law judge has jurisdiction in this matter pursuant to section 105 of the Mine Act.

            6. The individual whose signature appears in Block 22 of the citations at issue in this proceeding was acting in his official capacity as an authorized representative of the Secretary of Labor when the citations were issued.

            7. True copies of the citations at issue in this proceeding were served on Taft as required by the Mine Act.

            8. The total proposed penalties for the citations in this proceeding will not affect Taft’s ability to continue in business.

            9. The Secretary stipulates that Taft exercised good faith in terminating the citations in a timely manner.

            10. The Secretary and Taft are free to argue that evidence admitted in the context of a particular citation is relevant to the court’s determination of other citations. Further, if the court accepts the party’s argument, the court may consider that evidence in reaching her decision concerning those other citations.

Tr. 7-9.

II. Factual Background

            Taft Production Company operates a clay surface mine and production facility near Taft, California. Resp’t Br. at 2. The mine manufactures kitty litter and other products. Tr. 17. On July 28, 2009, MSHA Inspector James Maddox was accompanied by MSHA field supervisor Bart Wrobel on a regular inspection of Taft. Tr. 10, 17. At the time of inspection, Maddox had been an inspector for approximately four months, and Wrobel had been an inspector for approximately eight years. Tr. 17, 253.

            Maddox and Wrobel started their inspection in the maintenance shop. Tr. 22. Maddox observed and photographed a water cooler and several All-Threads in front of the activation paddle for the emergency eye-wash station. Tr. 42-44; Ex. P-1. He issued a citation for Taft’s failure to provide readily accessible water or neutralizing agents on the maintenance shop floor. Tr. 24; Ex. P-2.

            The inspection team then traveled to Mill Building No. 2 which contained several crushing and screening devices. Tr. 72. Maddox observed a vibratory feeder being suspended at the corners by turnbuckles, and that the load bearing clevis pins provided by the manufacturer had been replaced with grade 5 bolts. Tr. 77, 88-89. He issued a citation to Taft for using the bolt in one of the turnbuckles beyond its design capacity. Tr. 73; Ex. P-5.

            Maddox and Wrobel then moved to Level 3 of Mill Building No. 2 where three screening devices are located. Tr. 92. Maddox observed that the flexible metal conduit on screen No. 104 had been partially severed, exposing the wires to damage where they enter the motor’s junction box. Tr. 92-93; Ex. P-6, P-7. Consequently, he issued a citation for Taft’s failure to protect the electrical conductors inside the conduit from mechanical damage. Tr. 95; Ex. P-7.

            Maddox and Wrobel returned to Taft on July 29 to continue their inspection. Tr. 112. They traveled to Warehouse No. 3 where they observed two sets of metal shelves being used to store materials. Tr. 112-13. Maddox observed that one set of shelves was not secured to the floor and its center support leg was bent inwards. Tr. 115; Ex. P-9. Several heavy pallets were stacked on the middle and top shelves, and a bag of material extended over the edge of the top shelf. Tr. 115-17; Ex. P-9. Maddox also observed that the other set of shelves was leaning to the left and was not secured to the floor. Tr. 122-23; Ex. P-10. Two or three pallets were stacked on the top shelf, and a box was on the middle shelf. Tr. 122. Maddox issued a citation to Taft for stacking heavy materials on unstable shelves in such a way that created a fall-of-material hazard. Tr. 135; Ex. P-11.

            After inspecting the warehouse, the inspectors traveled to the quarry to inspect the crusher. Tr. 134-35. They took a look at the feeder and the conveyance system. Tr. 135-36. Maddox observed that the cover on the electrical switch gear box for the B5 conveyor belt was open and the box was energized. Tr. 138; Ex. P-13. To close the box, Taft de-energized the system. Tr. 138-39. Maddox issued a citation to Taft for its failure to keep the box cover closed while the system was energized. Tr. 137; Ex. P-14.

            Maddox and Wrobel returned to Taft on July 30 to complete their inspection. Tr. 161. They traveled to Mill No. 1 and inspected the walkways along the conveyor belt in the surge tunnel. Tr. 162-63. Maddox observed that the tail pulley guard on the C1 conveyor belt was not secured in place. Tr. 165. A gap existed between the guard and the framework of the pulley. Tr. 166; Ex. P-16. Therefore, he issued a citation to Taft for failing to secure the tail pulley guard in place while the belt was being operated. Tr. 164-65; Ex. P-17.

III. Findings of Fact and Conclusions of Law

A. Citation No. 6481833

            Inspector Maddox issued 104(a) Citation No. 6481833 alleging a “significant and substantial” violation of section 56.15001 that was “reasonably likely” to result in an injury that could reasonably be expected to be “permanently disabling,” and was caused by Taft’s “high” negligence.

The “Condition or Practice” is described as follows:

The emergency eye wash station located in the Machine Shop wasinaccessible due to shop materials blocking the area. Eye injuries are possible due to flying material and the shops [sic] use of chemicals requiring the emergency eye wash station if a miner were to be exposed. A miner could suffer permanently disabling injuries by not being able to reach the eye wash station. The Mine Operator stated that it was a problem.

Ex. P-2. The citation was terminated after the area was cleared of obstructions to the emergency eye-wash station.

1. Fact of Violation

            In order to establish a violation of one of her mandatory safety standards, the Secretary must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)).

            Maddox referenced cleaning solvents that are often packaged with first aid instructions calling for immediate eye flushing in the event of eye contamination. Tr. 37-38. Taft conceded that there were chemicals in the maintenance shop which would be harmful to miners’ eyes. Tr. 40. Maddox testified that when standing to the left of the water cooler, he could barely see the activation paddle for the eye-wash station through all of the obstructions in front of it. Tr. 42-43; Ex. P-1. In his opinion, a miner attempting to reach the activation paddle would be impeded by the water cooler and the All-Threads. Tr. 43-44. He believed that the obstructions would prevent a miner from fully depressing the paddle, and that the eye-wash station was necessary, given the nature of the work and the chemical substances used in the shop. Tr. 26-27, 49. He stated that, in the event of an emergency, a miner would need to flush his eyes within seconds, in order to have the best chance of avoiding serious eye injuries. Tr. 49, 52.

            Wrobel gave a similar account of the area by testifying that the eye-wash station was blocked by several pieces of equipment and that, as the station was being inspected, Nancy Tidwell, human resources and safety manager, stated that the condition “looks pretty bad.” Tr. 255, 257.

            Tidwell testified that she trains Taft’s supervisors on safety procedures and that, in her opinion, the eye-wash station was accessible because a miner could reach the paddle when approaching the station from the front left side. Tr. 293-94. She also pointed out that a bathroom, approximately five steps around the corner from the eye-wash station, provided another source of water and a first aid kit with eye-wash solution and cups. Tr. 294.

            I am not persuaded by Tidwell’s argument. A miner in the throes of an emergency should not be required to grope around the corner to locate the bathroom, then find the faucet or the first aid kit and its contents, in order to get some relief. That is exactly why the eye-wash station is situated in the body of the shop. The word “available,” as used in the standard, means “present and ready for use.” The American Heritage Dictionary 123 (4th ed. 2009). A miner in need of immediate first aid would be delayed by having to negotiate the water cooler and All-Threads. This would prove especially difficult were the miner fully, even partially, blinded or in extreme pain. Moreover, the obstructions posed a trip-and-fall hazard for a miner suffering impaired vision. Based on Taft’s failure to provide immediate access to the eye-wash station, I conclude that the Secretary has proven that Taft violated section 56.15001. In doing so, I interpret the word “available” in a manner consistent with the protective purposes of the Act. See Rock of Ages Corp. v. SOL, 170 F.3d 148, 155 (2nd Cir. 1999).

            Maddox believed that the condition was obvious because miners were continually walking through this area. Tr. 65. He opined that the condition may have existed for a significant period of time because the water cooler was plugged in and cups were provided on top of it. Tr. 65-67; Ex. P-1. He also observed an appreciable amount of dirt or dust under and around the water cooler and All-Threads as Taft was cleaning to terminate the citation. Tr. 67; Ex. P-1. The evidence as a whole makes it likely that the operator had deliberately situated the water cooler in front of the eye-wash station as a convenient place to provide drinking water. Therefore, I find that Taft was highly negligent in violating the standard.

2. Significant and Substantial

            In Mathies Coal Company, the Commission set forth four criteria that the Secretary must establish in order to prove that a violation is “significant and substantial” (“S&S”) under National Gypsum, 3 FMSHRC 822 (Apr. 1981): 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. 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’d 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). Evaluation of the third criterion, the reasonable likelihood of injury, should be made in the context of “continued normal mining operations.” U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Moreover, resolution of whether a violation is S&S must be based “on the particular facts surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987).

             The fact of violation has been established and miners, already in distress, would be subjected to possibly more serious eye injuries because of obstructed access to first aid. The focus of the S&S analysis, then, is the third and fourth Mathies criteria, i.e., whether the hazard was reasonably likely to result in an injury, and whether the injury would be serious.

            The Commission has held that, to satisfy the third element of the Mathies test, the Secretary must prove that the hazard contributed to by the violation will be reasonably likely to cause a serious injury. The Secretary need not prove a reasonable likelihood that the violation itself will cause injury. Musser Eng’g and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). I find that obstructing access to the emergency aid apparatus provided in the event of chemical exposure to the eyes is reasonably likely to result in eye injuries ranging from temporary irritation to total vision loss, as well as cuts, contusions and musculoskeletal injuries from tripping and falling. Therefore, I conclude that the violation was S&S.

B. Citation No. 6481835

            Inspector Maddox issued 104(a) Citation No. 6481835 alleging a violation of section 56.14205 that was “unlikely” to cause an injury that could reasonably be expected to result in “lost workdays or restricted duty,” and was caused by Taft’s “high” negligence. The “Condition or Practice” is described as follows:

The ½ inch x 8 inches turnbuckle securing the elevated corner of the “Syntron” vibratory feeder located in the Mill Building #2 was held in place with a grade 5 bolt, rather than the required Clevis Pin for the turnbuckle. By not using parts designed for the turnbuckle, the condition exposed miners to broken bones, cuts, and bruising if the bolt being used were to fail. The condition was obvious.

Ex. P-5.

1. Fact of Violation

            Although all four turnbuckles had been fitted with grade 5 bolts rather than clevis pins, Maddox testified that one of the bolts was significantly worn. Tr. 79, 88-89. He stated that it was not extending through the other side of the turnbuckle, and that there was a significant dip in the middle from which a dish-shaped fragment had broken off. Tr. 82; Ex. P-4. He explained that a clevis pin, which has a shaft made of stronger material than a bolt, is designed to secure side loads in turnbuckles. Tr. 81. A bolt, on the other hand, is intended to hold two pieces of metal together and resist longitudinal tension, but is not designed to withstand side pressure or support a side load. Tr. 81. According to him, when Taft installed bolts in the turnbuckles to suspend the vibratory feeder, it was, indeed, using them to support side loads. Tr. 81-82. The use of the cited bolt in the turnbuckle created the hazard of the bolt breaking, causing the corner of the feeder to fly out. Tr. 84, 89. If the projecting turnbuckle, itself, were to hit a miner in the foot, knee, or arm, it is probable that an injury resulting in lost workdays or restricted duty would result. Tr. 84, 90.

            Wrobel testified that he had worked as a machinist for 12 or 13 years prior to working for MSHA. Tr. 259. He opined that the grade 5 bolt was being used beyond its design capacity. Tr. 258. He explained that the turnbuckle comes from the manufacturer with the clevis pin as part of a set, and that a clevis pin can be substituted by a shoulder bolt, which is specially hardened to withstand side pressures. Tr. 259-60. Notwithstanding the design limitations of grade 5 bolts, Tidwell countered that there was a barrier between the travelway and the vibratory feeders, and that Taft’s policy is that the machines be shut down before employees enter the area. Tr. 296.

            Maddox and Wrobel both testified credibly that the grade 5 bolts used in the turnbuckles, unlike clevis pins, are not designed to support side loads, and Taft offered no credible rebuttal. The heavily worn condition of the cited bolt clearly demonstrates that it was being used beyond its design capacity. The bolt breaking, and the turnbuckle failing and acting as a projectile, could result in an injury, even if the probability of no miners being in the immediate area makes it unlikely. Therefore, I conclude that Taft’s use of the grade 5 bolt in the cited turnbuckle violated section 56.14205.

            The severely worn condition of the cited bolt establishes the probability that it had been utilized for a significant period of time. Additionally, although Maddox elected to cite only one turnbuckle, all four had been outfitted with grade 5 bolts. I credit the inspectors’ unrebutted testimony that this condition was obvious, not only because the vibratory feeder was adjacent to a walkway, but also because it is common industry knowledge that bolts are not designed or intended to support side loads. Tr. 90-91, 259. I, therefore, find that Taft was highly negligent in violating the standard.

C. Citation No. 6481836

            Inspector Maddox issued 104(a) Citation No. 6481836 alleging a “significant and substantial” violation of section 56.12004 that was “reasonably likely” to result in an injury that could reasonably be expected to be “fatal,” and was caused by Taft’s “high” negligence. The “Condition or Practice” is described as follows:

The flexible metal conduit, housing the 480 volt power wires had been damaged. The conduit was damaged exposing the wires where they entered the junction box of the Screen #104 motor. Employees working in and around this area are exposed to the possibility of an electrocution, shock or burn hazard. The operator was unaware of the electrical defect as it was missed on the work place exam and the condition was obvious.

Ex. P-7. The citation was terminated after the flexible conduit was replaced.

1. Fact of Violation

            Taft has conceded that the violation of section 56.12004 occurred, but contests the S&S designation and negligence finding alleged by the Secretary. Tr. 28.

2. Significant and Substantial

            Maddox testified that the screening process involves screens violently vibrating back and forth. Tr. 97. He explained that in the course of normal mining operations, it was reasonably likely that the metal coil lining the conduit would cut into the insulation of the inner conductors, exposing miners in the immediate area to contacting the bare conductors. Tr. 107. Maddox opined that a miner would be in close proximity to the broken conduit when conducting a workplace examination or performing routine maintenance. Tr. 103. He testified that he was told by someone at Taft that a miner would be in the vicinity of the broken conduit once or twice per shift. Tr. 103-04. He also testified that, at another mine, a miner who contacted a bare conductor on a 480-volt conduit was electrocuted. Tr. 98-99. Wrobel concurred with Maddox, and added that if the ground wire in the conduit were cut before any of the three power lines, the overload circuit protection would be disabled, and a person coming into contact with a bare wire would be electrocuted. Tr. 317-18. On the other hand, Tidwell pointed out that there is a guardrail between the travelway and the electrical conduit, and that Taft has a policy prohibiting persons from entering the work area unless the screen is shut down. Tr. 297.

            The fact of violation has been established, and miners were subjected to burns or electrocution were they to contact bare conductors. The focus of the S&S analysis, then, is the third and fourth Mathies criteria, i.e., whether the hazard was reasonably likely to result in an injury, and whether the injury would be serious.

              Maddox and Wrobel both testified credibly that grounding can be defeated, and that contact with a bare conductor can result in serious injury, including electrocution. There is no evidence in the record that a person contacting a bare conductor creates an electrical fault which would de-energize the system. While Taft had erected a handrail system around the conduits, the handrails would not prevent a miner who was adjusting or cleaning the belts from contacting the conduit located adjacent to the travelway. I find that the broken conduit exposed the conductors to damage from the movement of the metal coil. In the course of continued normal mining operations, the coil would eventually cut into the insulation, exposing miners to contact with the bare conductors, resulting in shocks, burns or electrocution. Therefore, I conclude that the violation was S&S.

3. Negligence

            Maddox testified that the break in the conduit was obvious, and should have been observed and corrected since it was adjacent to a regularly traveled walkway. Tr. 109. He also opined that the amount of dirt accumulated in the conduit indicated that this condition had existed for a significant period of time. Tr. 109. Given that the conduit was located next to a heavily traveled walkway, and that the break in the conduit was obvious, Taft should have recognized and corrected the hazard. I find that this condition existed for a significant amount of time, and I am unpersuaded that lack of inclusion of the hazard in the pre-shift examination book establishes that the condition was not obvious, as Taft contends, but rather, that it simply may have been overlooked. Accordingly, I find that Taft was highly negligent in violating the standard.

D. Citation No. 6481838

            Inspector Maddox issued 104(a) Citation No. 6481838 alleging a “significant and substantial” violation of section 56.16001 that was “reasonably likely” to result in an injury that could reasonably be expected to be “fatal,” and was caused by Taft’s “high” negligence. The “Condition or Practice” is described as follows:

Two sets of shelves, having 3 levels each, located in the #3 warehouse building, measuring 10' high x 16' long x 45" deep were found to be damaged. Both shelves had heavy pallets of materials stacked across the entire top shelf with the lower two shelves partially loaded. Two forklifts were parked adjacent and in front of each shelf set. The shelves adjacent to the first forklift measured 29" from the access point of the operators station. The center upright leg was bent inward approximately 6" and could topple over due to the shelves not being secured to the floor exposing persons to fatal crushing injuries. The condition had existed for an unknown amount of time and was very obvious.

Ex. P-11. The citation was terminated after the shelves were unloaded, taken out of service, and the forklift operator was directed to discontinue stacking materials on them.

1. Fact of Violation

            Taft has conceded that the violation of section 56.16001 occurred, but contests the S&S designation and negligence finding alleged by the Secretary. Tr. 28.

2. Significant and Substantial

            Maddox testified that the forklift operator was exposed to the danger of receiving crushing injuries from falling pallets when operating in close proximity to the metal shelves. Tr. 130-31. In his opinion, the forklift operator would be only partially protected from falling objects while driving the forklift, and would be totally exposed to falling pallets when walking between the shelves and the forklift. Tr. 131. Wrobel noted that if a forklift operator were loading pallets onto or wrapping pallets at the shrink wrapping station, pallets holding 1,900 pounds or more could fall from the shelves and crush the miner. Tr. 267, 268, 269, 271-72. Tidwell testified, however, that the forklifts operating next to the shelves were equipped with canopies, known in the industry as falling object protection systems (“FOPS”). Tr. 299.

             The fact of violation has been established, and miners were exposed to the hazard of large pallets, holding approximately a ton each, falling on them from a distance as high as 10 feet. The focus of the S&S analysis, then, is the third and fourth Mathies criteria, i.e., whether the hazard was reasonably likely to result in an injury, and whether the injury would be serious.

             Despite the fact that the forklifts were equipped with FOPS, the evidence makes clear that a pallet could fall from the unstable units and crush a miner walking to a nearby forklift or performing a routine task such as shrink wrapping. I find that the hazard of pallets, weighing a ton and falling from overhead heights, is reasonably likely to result in severe crushing injuries to a miner walking or working adjacent to the sets of shelves. Therefore, I conclude that the violation was S&S.

3. Negligence

            Maddox testified that the bend in the center leg of one set of shelves, and the generally poor condition of both sets, was obvious. Tr. 131-32; Ex. P-9. He recalled someone at Taft telling him that the shelves had been in that condition for a long period of time and, in his opinion, the rust on the bent leg substantiates that allegation. Tr. 132-33.

            The obviousness of the bent, rusting leg should have been recognized by Taft management and employees operating forklifts or shrink wrapping pallets and, given the weight of the materials which the shelves housed, Taft should have corrected the defects long before the rusting occurred. Therefore, I find that Taft was highly negligent in violating the standard.

E. Citation No. 6481839

            Inspector Maddox issued 104(a) Citation No. 6481839 alleging a “significant and substantial” violation of section 56.12032 that was “reasonably likely” to result in an injury that could reasonably be expected to be “fatal,” and was caused by Taft’s “high” negligence. The “Condition or Practice” is described as follows:

The cover on the energized 480 volt switch gear box for the B-5 Conveyor Belt was not closed and secured against contact. Foot prints were noted within 48" and an access ladder for the head pulley area of the B-4 conveyor measured 51" from the energized box. The condition exposed Miners who could contact the energized conductors to a 480 volt electrocution. The Mill operator cleans in the area once per shift or as needed.

Ex. P-14. The citation was terminated after the B-5 conveyor belt was shut down, locked and tagged-out, and the de-energized box was closed and secured.          

 1. Fact of Violation

            Taft has conceded the violation of section 56.12032, but contests the S&S designation and negligence finding alleged by the Secretary. Tr. 28.

2. Significant and Substantial

            Maddox testified that if a miner were to contact any of the six lugs underneath the cover plate, he could be burned or electrocuted. Tr. 147, 149. He opined that a crusher operator, mechanic, or electrician could access the box to check fuses or amperage of the legs, or to perform maintenance on the motor. Tr. 152-53. Wrobel added that a miner may have intentionally disabled the latch mechanism in order to quickly access the box or perform amperage tests. Tr. 275-76. Arguing that an injury was unlikely to occur, Tidwell testified that Taft’s policy permits only electricians and maintenance technicians to access the electrical boxes. Tr. 300-01.

            The fact of violation has been conceded, and it has been established that miners were exposed to burns or electrocution by contacting the energized lugs. The focus of the S&S analysis, then, is the third and fourth Mathies criteria, i.e., the reasonable likelihood of injury and its seriousness. The record establishes that electricians and maintenance technicians have access to the box and that if the lugs were contacted in performance of their duties, they would be reasonably likely to be seriously burned or electrocuted. Therefore, I conclude that the violation was S&S.

3. Negligence

            Maddox testified that the open box cover was highly visible since it was only 48 inches away from the access ladder, and was located in a recently traveled walkway. Tr. 159. He opined that the condition had existed for a number of days due to the amount of dirt in the bottom of the box. Tr. 160. He stated that he was told by someone from Taft that the condition had existed for three days. Tr. 160. Maddox also opined that someone may have intentionally defeated the latch mechanism, designed to ensure that power is off when the box cover is open, in order to measure the number of amps that each leg was pulling. Tr. 142-43, 152-53. As mentioned earlier, Wrobel was of the same opinion.

            The purpose of the built-in latch mechanism is to prevent a miner from contacting the energized lugs inside of the box when it is energized, and being severely burned or electrocuted. Maddox observed that the lever was in the “up” position, indicating that the box was energized but, contrary to its intended design, the box cover was open rather than closed. I credit Maddox’s and Wrobel’s testimony that the only way that the box cover could have been open with the lever in the “up” position was for someone to have intentionally tampered with the latch mechanism in order to keep the power on. Considering the obviousness of this condition and the evidence that it had existed for several shifts, I find that Taft was highly negligent in violating the standard.

F. Citation No. 6481842

            Inspector Maddox issued 104(a) Citation No. 6481842 alleging a “significant and substantial” violation of section 56.14112(b) that was “reasonably likely” to result in an injury that could reasonably be expected to be “fatal,” and was caused by Taft’s “high” negligence.

The “Condition or Practice” is described as follows:

The tail pulley guard on the C-1 conveyor was not securely in place. The opening was approximately 8-10" and measured 20" to the rotating self cleaning tail pulley. There were hand tools laying on top of an adjacent guard approximately 15" to the opening exposing miners to a fatal entanglement hazard. The mine operator stated that someone probably had been working on it and didn’t secure it back in position.

Ex. P-17. The citation was terminated after the guard was repositioned and secured in place.

1. Fact of Violation

            Taft has conceded the violation, but contests the S&S designation and negligence finding alleged by the Secretary. Tr. 28. Addressing negligence, it is plausible, based on the sighting of hand tools on the adjacent guard, that the guard had been recently removed for maintenance performed on the tail pulley. Moreover, Tidwell testified credibly that the tail pulley was in an area which would not be frequented regularly by management. Tr. 301. Accordingly, I find that the violation was a result of Taft’s moderate, rather than high negligence.

2. Significant and Substantial

            Maddox testified that were a miner to actually fall into the tail pulley, his hands or arms could be severed by pinch points. Tr. 179-80. However, he was also of the opinion that, were a miner to fall onto the guard, it is unlikely that the guard would move out of place and expose him to contact with the tail pulley. Tr. 177. I credit Maddox’s testimony and make a gravity finding that the violation was unlikely to result in a permanently disabling injury, rather than a fatality. Therefore, I conclude that the violation was non-S&S.

IV. Penalties

            While the Secretary has proposed a total civil penalty of $9,497.00, the judge must independently determine the appropriate assessment by proper consideration of the six penalty criteria set forth in section 110(i) of the Act, 20 U.S.C. § 820(j). See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 763 F. 2d 1147 (7th Cir. 1984).

            Applying the penalty criteria, I find that Taft is a medium-size operator, with no history of similar violations and an overall record that is not an aggravating factor in assessing appropriate penalties. As stipulated, the proposed total civil penalty will not affect Taft’s ability to continue in business. Stip. 8. I find that Taft demonstrated good faith in achieving rapid compliance after notice of the violations. The remaining criteria involve consideration of the gravity of the violations and Taft’s negligence in committing them. These factors have been discussed fully, respecting each violation. Therefore, considering my findings as to the six penalty criteria, the penalties are set forth below.

            A. Citation No. 6481833

            It has been established that this S&S violation of section 56.15001 was reasonably likely to result in an injury that could reasonably be expected to be permanently disabling, that Taft was highly negligent, and that it was timely abated. Therefore, I find that a penalty of $946.00, as proposed by the Secretary, is appropriate.

            B. Citation No. 6481835

            It has been established that this violation of section 56.14205 was unlikely to result in an injury that could reasonably be expected to result in lost workdays or restricted duty, that Taft was highly negligent, and that it was timely abated. The Secretary originally proposed a penalty of $127.00. Because my finding of high negligence included Taft’s improper use of grade 5 bolts in all four turnbuckles, I find that a penalty of $600.00 is appropriate.

C. Citation No. 6481836

            It has been established that this S&S violation of section 56.12004 was reasonably likely to result in an injury that could reasonably be expected to be fatal, that Taft was highly negligent, and that it was timely abated. Therefore, I find that a penalty of $2,106.00, as proposed by the Secretary, is appropriate.

            D. Citation No. 6481838

            It has been established that this S&S violation of section 56.16001 was reasonably likely to result in an injury that could reasonably be expected to be fatal, that Taft was highly negligent, and that it was timely abated. Therefore, I find that a penalty of $2,106.00, as proposed by the Secretary, is appropriate.

            E. Citation No. 6481839

            It has been established that this S&S violation of section 56.12032 was reasonably likely to result in an injury that could reasonably be expected to be fatal, that Taft was highly negligent, and that it was timely abated. Therefore, I find that a penalty of $2,106.00, as proposed by the Secretary, is appropriate.

            F. Citation No. 6481842

            It has been established that this violation of section 56.14112(b) was unlikely to result in an injury that could reasonably be expected to be permanently disabling, that Taft was moderately negligent, and that it was timely abated. While the Secretary has proposed a penalty of $2,106.00, consistent with my findings of lower gravity and negligence, I find that a penalty of $300.00 is appropriate.

ORDER

             ACCORDINGLY, Citation Nos. 6481833, 6481835, 6481836, 6481838 and 6481839 are AFFIRMED, as issued; and it is ORDERED that the Secretary MODIFY Citation No. 6481842 to reduce the level of gravity to “unlikely,” “permanently disabling,” and “non-significant and substantial,” and reduce the degree of negligence to “moderate;” and that Taft Production Company PAY a civil penalty of $8,164.00 within 30 days of the date of this Decision.

/s/ Jacqueline R. Bulluck

Jacqueline R. Bulluck

Administrative Law Judge

Distribution:

Pamela F. Mucklow, Esq., U.S. Dept. of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, CO 80202-5708

Larry R. Evans, Corporate Health and Safety Manager, Oil-Dri Corporation of America, P.O. Box 380, 28990 Georgia Hwy 3 N, Ochlocknee, GA 31773

/ss