FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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May 7, 2013

SECRETARY OF LABOR,    MINE SAFETY AND HEALTH     ADMINISTRATION (MSHA),   Petitioner,  v. CEMEX, INC.,  Respondent.

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CIVIL PENALTY PROCEEDING Docket No. WEST 2012-1163-M A.C. No. 05-00344-291931 Mine: Lyons Plant

DECISION

Appearances: Daniel Pietragallo, Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;

Michelle Witter, Jackson Kelly PLLC, Denver, Colorado, for Respondent.

Before: Judge Miller

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 Cemex, Inc. (“Cemex”) 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”). The docket contains a total of four 104(a) citations, all issued as a result of an electrical accident in which a miner received arc burns to his face and hands. The Secretary has proposed a total penalty of $119,000.00 for the citations in this docket. The parties presented testimony and documentary evidence at a hearing held on February 26, 2013 in Denver, Colorado.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

At hearing the parties submitted a list of seven proposed stipulations. Cemex Prehearing Report 2. Those stipulations were agreed to by all parties and admitted into the record. The stipulations include a statement that Cemex is subject to the jurisdiction of the Mine Act. Id. The parties also agreed that the citations were abated in good faith and that the proposed penalties will not affect the Respondent’s ability to continue in business. Id. The history of assessed violations is admitted as Sec’y Ex. 20. (Tr. 9).

Cemex operates a cement plant located in Boulder County, Colorado, that employs as many as 95 miners. During the evening shift on November 27, 2011, the control room operator at the mine reported a problem with a new compressor. Joshua Jones, an on-call electrician, was called at approximately 9:30 p.m. to come in to the plant to repair the compressor. Jones arrived around midnight, spoke with the workers in the control room, and proceeded to the compressor to determine what, if any, repairs were necessary. Jones learned that the compressor was not functioning but the control room was not receiving a signal indicating a malfunction. He opened the 120 volt box on the compressor while it was energized, checked fuses, did some troubleshooting and electrical tests, and found no problems. Jones returned to the control room and spoke to an operator who suggested that Jones speak to the mechanics on site. The mechanics offered no help and, as a result, after a further visit to the compressor, Jones returned to the control room and called the on-call manager, Greg Morrissey. Morrissey, who had experience as an electrician, listened to Jones explain the malfunction and his troubleshooting. Jones explained that he had conducted tests, attempted to troubleshoot the problem, and found that the panel fuses were not blown. Morrissey suggested that Jones find the compressor manual and troubleshoot as instructed in the manual. Jones searched for and found a manual, then read the manual, returned to the compressor, and was again unable to find a problem. He called Morrissey at least one more time, and returned to the control room to speak with the operators. (Tr. 94-97). Jones went back and forth between the control room, the compressor and the phone calls with Morrissey a number of times.

Finally, Jones decided that the problem with the compressor was not the compressor’s own electrical box, but a malfunction down the line. Accordingly, Jones proceeded to look at the motor control box for the compressor. (Tr. 105). The motor control center, or MCC, for the kiln drive-ins contained a number of electrical units, both 480 volt and 4160 volts. (Tr. 111); Sec’y Ex. 2, p. 1. While the box is one unit, it is divided into two parts, the top being 480 volts and the bottom being 4160 volts. The box had two doors, and the top had a label that indicated 4160 volts. Jones opened the top compartment first, did some troubleshooting, and found no problem with the electrical components. He then opened the bottom portion of the box. He bypassed the safety features that shut down the 4160 voltage motor and used a multi-meter, rated for 1000 volts, to test the energized motor. As he touched the multi-meter to the box, he was blinded by an arc flash, his hands were burned, and a good portion of the plant went dark. Jones, temporarily blinded, eventually made his way back to the control room area where Morrissey administered first aid and then drove Jones to a local hospital. Jones was treated and released for burns to his hands and face. Morrissey, who had come to the plant to assist in troubleshooting the compressor malfunction with Jones, called Royce David Smith, the safety and health director, who, in turn, called MSHA at approximately 8:35 a.m. to report the incident. (Tr. 28).

On November 28, 2011, MSHA Inspector John C. Kalnins, learned of the accident from his supervisor and traveled to the Cemex plant to investigate. Kalinin’s has been a mine inspector for four years, and had more than twelve years of mining experience prior to becoming a MSHA inspector. Kalnins traveled to the mine, spoke with Smith, and then traveled to the accident location with Mark Javarone, the electrical supervisor. Javarone appeared upset about the accident and explained to Kalnins that Jones had not been trained to work on anything with 4160 volts when it was energized, and that only Javarone worked on the 4160 equipment at the mine. (Tr. 21). Javarone demonstrated to Kalnins how Jones was able to defeat the safety device on the 4160 box in less than ten minutes. (Tr. 22). Javarone expressed his concern for Jones, indicated that he should not have been working on the box, and that Jones had been instructed not to work on any 4160 volt equipment. I note that, at hearing, Javarone denied making some of these statements to Kalnins, but I find Kalnins to be the more credible witness. Kalnins is knowledgeable, thorough, and credible and, in resolving disputes of fact in this case, I credit Kalnins’ testimony over that of the mine employees. Particularly, I did not find Javarone to be a credible witness.

While at the power center where the accident occurred, Kalnins examined the area, and took a number of photos, Sec’y Ex. 2, including one of the multi-meters used by Jones to test the 4160 control center. Sec’y Ex. 2 p. 5. The meter was marked with a designation that indicated it was to be used for a maximum of 1000 volts.

On November 29, after completing his investigation at the mine, Kalnins, accompanied by Smith, visited Jones at his home to conduct an interview. Kalnins asked Jones about the training he received at Cemex and why he was attempting to test this 4160 volt center. Jones explained that he was not aware that it was 4160 volts and that he was not trained to work on 4160 volts. (Tr. 25). Jones also explained that he was not aware that he should not have used the multi-meter, as it was the only tool he had worked with while at the mine. He indicated that there was no personal protective equipment and that electricians often worked on energized panels to troubleshoot problems. On the night of the accident, Jones felt that, since he was the electrician on call, he had a duty to take all steps necessary to repair the compressor.

Jones’ testimony, for the most part, supported what he told Kalnins two days after the accident. He explained that he received new miner training that included some electrical information and two weeks later attended refresher training. He testified that, before working on his own, he followed, observed, and helped other electricians. When he and a co-worker changed out a motor that was connected to 4160 volt center, Javarone de-energized it while Jones and an apprentice watched. There was a lengthy testimony about whether Jones had previously worked on 4160 volt equipment. In resolving the conflict in testimony, I agree that he worked on motors that may have used 4160 volts, but always with supervision and only when Javarone de-energized the 4160 volt motor control centers. Jones at no time, demonstrated his ability to work on 4160 volts. Jones had not used any meter other than the multi-meter he used at the time of the accident, did not realize it was for 1000 volts or less only, but had observed Javarone use a hot-stick in place of the multi-meter on the 4160 motor shortly before the accident. Jones had not used the hot-stick on his own, nor had he demonstrated his ability to use a device other than the multi-meter. Further, Jones had not demonstrated his ability to troubleshoot or work on the 4160 volt motor control center while energized. Jones worked primarily on 480 volt equipment, and had worked on that voltage equipment while energized in order to troubleshoot. Jones was aware of the lock-out, tag-out program at the mine and it was his understanding that he was not required to use any personal protective equipment while working on the 480 volt equipment.

As a general matter, the Mine Act is a strict liability statute. As such, the Mine Act assesses liability without regard to the individual miner’s fault. International Union, UMWA v. FMSHRC, 840 F.2d 77, 83 (D.C. Cir. 1988). Even if there is no evidence that anyone in authority was aware of the existence of the violative actions, “the Mine Act clearly contemplates that a violation may be found where the wrongful act is performed by someone other than the [mine] operator.” Western Fuels-Utah, Inc. v. FMSHRC, 870 F.2d 711, 716 (D.C. Cir. 1989). Thus, “the Act’s scheme of liability provides that an operator, although faultless itself, may be held liable for the violative acts of its employees.. . . .” Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1359-60 (Sept. 1991); accord Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1115 (Jul. 1995). Consequently, it makes no difference whether Jones caused the violation, under the Act’s scheme of strict liability, the fact that the violation occurred makes Cemex liable for the violation. However, fault may be considered in setting the level of the civil penalties by considering whether the operator, as opposed to the miner who may have been involved in the incident, was negligent. 30 C.F.R. § 100.3. The Commission has long held that the negligence of a “rank-and-file” miner cannot be imputed to the operator for civil penalty purposes. Fort Scott, 17 FMSHRC at 1116; Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (Mar. 1988); Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982) (SOCCO). The Commission has further held that “where a rank-and-file employee has violated the Act, the operator’s supervision, training and disciplining of its employees must be examined to determine if the operator has taken reasonable steps necessary to prevent the rank-and-file miner’s violative conduct.” SOCCO at 1464 (emphasis in original). Finally, while this standard is normally applied in determining the operator’s negligence for penalty purposes, the Commission has confirmed that it also applies in determining whether an operator can be held responsible for a miner’s aggravated conduct and, thus, be found to have unwarrantably failed to comply with a regulation. Whayne Supply Co., 19 FMSHRC 447, 452-53 (Mar. 1997).

A. Citation No. 8589547

As a result of his investigation into the accident that involved Jones, Kalnins issued a number of citations, including Citation No. 8589547 on November 30, 2011, pursuant to section 104(a) of the Mine Act. The citation alleges a violation of section 46.7(a) of the Secretary’s regulations. The regulation cited requires, in pertinent part, that a mine operator “must provide any miner who is reassigned to a new task in which he or she has no previous work experience with training in the health and safety aspects of the task to be assigned, including the safe work procedures of such task . . . .” 30 C.F.R. § 46.7(a). A subsequent subsection of the standard provides that no training is necessary if the person has experience performing the task and has demonstrated the necessary skills. 30 C.F.R. § 46.7(c). The training may include practice with a competent person as long as hazard recognition training is provided along with the practice. 30 C.F.R. § 46.7(d). The subject citation was issued because Jones “was not trained to work on 4160 volt equipment.” Kalnins determined that an injury or illness was reasonably likely to be sustained, that the injury or illness could reasonably be expected to be fatal, and the violation was S&S. The negligence was originally assessed as moderate but the Secretary modified the violation to high negligence. The Secretary has proposed a specially assessed civil penalty of $38,000.00 for this alleged violation.

Jones, who had prior experience working on electrical components, was hired to troubleshoot and repair electrical equipment as directed in work orders he received. He also agreed to work various shifts and to be on-call. Upon beginning work at the mine, Jones received new miner training by watching a video, listening to Javarone, in person, explain electrical concepts, and learning the locations and equipment at the mine. While Jones did not follow Javarone around daily, he occasional spent time with him to learn about his job. He worked with journeymen electricians, and, while he worked primarily on 480 volt equipment, he changed out motors that involved 4160 volts. His experience with 4160 volts was limited to watching Javarone test with a hot stick and observe Javarone de-energize 4160 power centers. Jones had no specific training on 4160 volts, had no meter to measure above 1000 volts, and had no record of task training or quizzes for anything related to 4160 volts. Jones testified that he had no specific safety training and certainly had no training on the 4160 volt equipment at the mine. Nor did Jones demonstrate his ability to de-energize, test, or troubleshoot 4160 equipment that was energized.

The mine argues and Javarone explained that he believed Jones to be adequately trained. Jones had experience, he followed other miners, and was shown aspects of 4160 volts by Javarone. Javarone believed that Jones knew his work, and he allowed Jones to be on-call. There are conflicts in the testimony provided by Javarone and Jones, and I question the credibility of both Jones and Javarone regarding whether Jones was or was not proficient in a number of ways and whether he knew he was working on 4160 volts at the time of the incident. It appears that Jones knew how to over-ride the safety device on the 4160 volt control center, but denies knowing the voltage of the center. Still, I find that Jones had some knowledge and experience, and knew more than he indicated. I agree that he felt pushed and was anxious to find the solution to the problem and that factored into his level of care. On the other hand, Javarone insists that Jones had experience with working on the 4160 motor control because he had earlier changed out a motor that operated on 4160 volts. However, the testimony supports that Jones did not have experience working on energized 4160 volt equipment, but instead Javarone had de-energized and demonstrated some part of the process to Jones and others. Neither Jones nor Javarone tells the entire story, but the evidence supports that Jones was not task trained to work on energized 4160 volts and he had not demonstrated his ability to conduct troubleshooting on 4160 volt equipment.

While there was some testimony about what kinds of tasks Jones had completed during his tenure with Cemex, there is nothing to substantiate that he was specifically trained on the task assigned on the night of his injury. Jones was not trained to de-energize 4160 volts, or to use the hot stick. Further, he was not trained to use the correct personal protective equipment when troubleshooting an energized 4160 volt motor. Task training contemplates training and hands-on demonstration of ability before engaging in a new task. While Jones had, on his own, conducted troubleshooting of 480, low voltage equipment, he had not done so on 4160 equipment. Jones testified and there is no evidence to the contrary that Jones had demonstrated such a skill to Javarone. Furthermore, Javarone admitted to Kalnins that Jones had not been trained to troubleshoot the 4160 motor while it was energized. I find that Javarone was aware that Jones was not task trained, and I accept Kalnins’ explanation that only Javarone, or perhaps a certified contractor, was trained to troubleshoot a 4160 motor. Still the mine expected Jones to be on call with the expectation that he would have to troubleshoot a motor with voltage beyond his training. The mine reasonably expected Jones to work on 4160 equipment when on call and therefore, he was required to be trained specific to that task, which he was not. Therefore, I affirm the fact of violation as alleged by the Secretary.

I next find that the violation is a significant and substantial one. A significant and substantial (“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.” 30 U.S.C. § 814(d)(1). 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:

[i]n 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, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). The Commission has 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).

As noted above, I find that there is a violation of the mandatory safety standard as alleged by the Secretary. Further, I find that the violation, a lack of task training, contributes to the discrete safety hazard of an untrained miner coming into contact with energized equipment of 4160 volts, which would in turn result in a serious electrical shock or, as here, an arc flash that resulted in burns. In this instance, Jones was not trained, and opened a box containing 4160 volts. He came in contact with that amount of electricity, and his contact resulted in a serious injury. The fact that Jones was not trained, has a direct correlation between the fact that he was injured because he worked on energized 4160 volts without the knowledge to do so and without the correct equipment. The violation, lack of training, created a reasonable likelihood that Jones would receive a serious injury and therefore I find the violation to be significant and substantial.

I also find the violation to be the result of high negligence. While Jones, in his testimony, understated his knowledge and experience, Javarone overstated it. Javarone did not take adequate care to ascertain that a miner who was expected to be on-call was trained in all aspects of the job that he may face while working alone. While it is true that Jones failed to call Javarone for help when he was uncertain about his next move, he did call Morrissey, who was a supervisor on-call seeking guidance. Morrissey gave Jones some suggestions for troubleshooting, but did not caution or warn him about working on 4160 volts. By the time Morrissey decided to go to the mine to assist Jones, the accident had already occurred. Jones was on-call, without the training or tools to perform the duties expected while on-call, which I find to be the result of high negligence.

Cemex argues that its negligence is less than high because Javarone believed that Jones was well trained and capable of taking an on-call shift. The operator’s argument is based upon evidence that Jones could conduct certain tasks, that he was trained in certain areas, that he had observed Javarone work on 4160 equipment, and had worked with Javarone and others on motors that were powered by 4160 volts. Yet Javarone failed to ascertain that Jones could competently and safely carry out any task that was required while on-call. I find that there is not evidence sufficient to mitigate the high negligence in this case.

Part 100 of the Secretary’s regulations sets forth the “criteria and procedures for proposing civil penalties[.]” 30 C.R.F. § 100.1. Section 100.3(d) provides, in pertinent part as follows:

Negligence is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm. Under the Mine Act, an operator is held to a high standard of care. A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices. The failure to exercise a high standard of care constitutes negligence.

30 C.R.F. § 100.3(d). Table X of the regulation explains the definitions used by MSHA for each level of negligence. Id. That section explains that moderate negligence is defined as “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” Id. If there are no mitigating circumstances, the citation is designated as high negligence. Id.

The only mitigating circumstance that is supported by the testimony is that Javarone may have exercised bad judgment when determining Jones ability to be on-call. Certainly Javarone, as an electrical supervisor, as well as others at the mine, should be aware of the absolute importance of determining if a miner is able to perform a certain task in a safe manner. Here, the mine failed to do that. Hence, I find the negligence to be high and assess a penalty of $35,000.00.

B. Citation No. 8589548

Citation 8589548 was issued as a result of the accident described above, and alleges a violation of section 56.14205 which requires that “[m]achinery, equipment, and tools shall not be used beyond the design capacity intended by the manufacturer where such use may create a hazard to persons.” 30 C.F.R. § 56.14205. Kalnins stated, in the body of the citation, that “[t]he electrician that was injured working on the 4160 volt equipment was using a multi-meter that was rated up to 1000 volts. The miner was not trained to use any other tools to check voltage. A miner using a tool beyond its design capacity, could receive fatal injuries.” Kalnins designated the violation as S&S and with moderate negligence, but later modified the negligence to high. The Secretary has proposed a $38,000.00 penalty.

The Respondent does not dispute that the multi-meter tool used by Jones was used beyond its design capacity. The multi-meter was designed to be used on electrical equipment powered by 1000 volts or less. The limits of the multi-meter, as demonstrated by the operator, were indicated on the handle of the device. Since Jones used this meter on 4160 volts, it was used beyond the capacity for which it was designed, the use created a hazard to persons and, therefore, a violation is established.

I find the violation to be S&S. First, a violation has been shown. Second, I find that the violation created a discrete safety hazard, that is, the failure to use the correct tool for this voltage exposes a miner to electrical shock or arc flashes. The electrical shock or the arc flash will lead to a serious or even fatal injury. In this case, the failure to use the correct tool was one of the primary causes of the accident that resulted in the serious injury to Jones.

In examining the negligence of the operator, the Secretary must prove that the company’s supervision, training and disciplining of its employees was deficient as to the use of the proper tool. Clearly, Jones was highly negligent, primarily for not understanding the voltage he was working on and accordingly, using the correct tool. I agree that his error was based, in part, on feeling anxious and an urgency to complete the task. In troubleshooting 4160 volts, it is fundamental for an electrician to use the correct tool, given the hazards of working on energized equipment and fundamental that he not only be trained to use the correct tool, but supervised in such an instance.

In this case, the motor control center, consisted of an upper and a lower cabinet with a small sign on the top cabinet that said 4160. The top cabinet was 480 volts, and the bottom was 4160. Sec’y Ex. 2. Jones testified he did not understand that, at the time of the accident he was working on that portion of the motor with 4160 volts. Therefore, even if Jones had been trained to use the tool that is correct for 4160 volts, he may not have known that the circumstance called for that type of tool. Jones had observed Javarone use the hot-stick, the tool designed for this voltage, but had not received training and had not used it. He had used other tools, appropriate for the 480 volts he worked on prior to the accident. Therefore, I find that the training of the mine was lacking, as was the supervision of Jones while on-call.

However, in this case, I find that there are factors that mitigate against assessing high negligence against the operator. First, the multi-meter used successfully by Jones on lower voltage, was labeled on the handle to indicate that its use was limited to 1000 volts or less. Next, I can only guess what tool Jones would have used had he realized he was trouble-shooting an energized 4160 motor, as opposed to a lower voltage. Finally, the operator had made some effort to show the hot-stick and its use to Jones prior to the accident. While I have found the lack of training overall to be the result of high negligence, given the mitigating circumstances as they relate to this particular violation, I find that the Respondent’s conduct amounted to moderate negligence and assess a penalty of $20,000.00.

C. Citation No. 8589549

On November 30, 2011, and as a result of the accident involving Jones, MSHA Inspector Kalnins issued Citation No. 8589549, pursuant to section 104(a) of the Mine Act, to Cemex for an alleged violation of section 56.12017 of the Secretary’s regulations. The regulation cited requires, in pertinent part, as follows:

Power circuits shall be de-energized before work is done on such circuits unless hot-line tools are used. Suitable warning signs shall be posted by the individuals who are to do the work. Switches shall be locked out or other measures taken which shall prevent the power circuits from being energized without the knowledge of the individuals working on them.

30 C.F.R. § 56.12017. A violation of this standard is often referred to as a lock out/tag out violation. The citation described the alleged violative condition as follows:

The electrician that was injured working on the 4160 volt equipment had by passed the safety devices leaving the equipment energized while he was working on it. The electrician was not using hot line tools or personal protection equipment.

Kalnins determined that an injury or illness was reasonably likely to be sustained, and if one were to be sustained it could reasonably be expected to result in a fatal injury. Further, he determined that the violation was significant and substantial and that the negligence was moderate. Prior to hearing, the Secretary moved to modify the negligence to high. The Secretary has proposed a civil penalty in the amount of $38,000.00 for this alleged violation.

Respondent does not dispute that Jones failed to de-energize the equipment and lock and tag it out. Further, the testimony established that while working on the equipment Jones was not using hot line tools or personal protective equipment. Accordingly, I find that a violation has been proven. I also find that the violation is S&S. Jones did not de-energize the equipment prior to working on it or, in the alternative, use hot-line tools designed to allow electricians to work safely on energized equipment, and, accordingly Cemex was appropriately cited for a violation of a mandatory standard that created a safety hazard. The hazard is that the electrician, when working on energized electrical equipment, would receive a shock or arc burn, which would result in a serious injury or death. In the instant case, the failure to lock out, or in the alternative, use appropriate personal protection, resulted in a serious injury.

While attempting to repair the compressor, Jones bypassed the safety devices that automatically shut down the energized 4160 equipment and began to test and troubleshoot, without the use of hot-line tools or any personal protective equipment, including gloves, an insulated mat, face shield or other protective equipment designed for use in this type of task. His failure to either de-energize or use personal protective equipment resulted in an injury when the energized 4160 center arced and caused a burn to his hands and face. In addition, it is likely that Jones could have received an electrical shock of such a magnitude that it would cause damage to vital organs, resulting in death. Cemex argues against the significant and substantial nature of the violation, by asserting that Jones was not seriously injured, receiving only burns to the hands and face. However, the actions of Jones, and in particular his failure to use personal protective equipment when he chose to trouble shoot without de-energizing the motor control unit was likely to result in an injury, and that injury would be a serious, or even fatal one. Therefore, I find the violation to be S&S.

As discussed above, in looking at the negligence of the operator, the Commission has explained that, the operator’s supervision, training and disciplining of its employees must be examined to determine if the operator has taken reasonable steps necessary to prevent the rank-and-file miner’s violative conduct.” SOCCO at 1464 (emphasis in original). Again, the evidence demonstrates the rank and file miner was extremely negligent when he failed to either de-energize the equipment or use equipment designed to protect him while working on such equipment. The evidence also shows, that he was not trained to work on 4160 volts, was not trained to de-energize equipment while troubleshooting and was not trained to use hot-line tools or personal protective equipment. While working on lower voltage motors, Jones explained, he often did not de-energize in order to trouble shoot, nor did he use protective equipment. Further, Jones was not supervised while on-call. He was able to call for help, but had no real supervision. I do not find any evidence that the operator took any reasonable steps necessary to prevent Jones from working on energized equipment without hot-line tools or personal protective equipment. Therefore, I find that the operator’s negligence is high and assess a penalty of $35,000.00.

D. Citation No. 8589550

As a result of the accident, and the mine’s failure to immediately notify MSHA of the accident, Kalnins issued Citation No. 8589550 for a violation of section 50.10(b). The cited standard requires that “[t]he operator shall immediately contact MSHA at once without delay and within 15 minutes at the toll-free number, 1-800-746-1553, once the operator knows or should know that an accident has occurred involving: . . . (b) An injury of an individual at the mine which has a reasonable potential to cause death.” 30 C.F.R. § 50.10(b). The violation was designated as non-S&S with high negligence. The Secretary has proposed a penalty of $5,000.00.

Inspector Kalnins explained that he issued the citation because the mine did not call MSHA until nearly four hours after the accident occurred and, in his opinion, the accident had a reasonable potential to cause death. Jones was temporarily blinded by the accident and received burns to his face and serious burns to his hands. He was transported to the hospital by Morrissey after Morrissey attempted first aid. Jones was in shock, but he was moving about and talking. There was no indication that he received an electrical shock, but instead the injuries were caused by an arc burn. Kalnins testified, without any evidence to the contrary, that an exposure to 4160 volts, such as the one Jones was exposed to, would likely result in a fatality.

The Secretary takes the position that given the injuries Jones received, the potential for a fatal injury was present, and the accident should have been reported within 15 minutes. Cemex on the other hand, argues that the nature of Jones’ injuries are not such that the mine knew or should have known that there was a reasonable potential to cause death.

The Secretary submits that the burns to Jones’ hands and face, along with the fact that he was in shock, are evidence of the potential to cause death. Cemex, on the other hand, argues that because Jones did not receive an electrical shock, did not lose consciousness and no CPR was performed, the injury did not have the potential to cause death. While there is some testimony that Jones may have been knocked backwards, or unconscious, Jones testified that he did not lose consciousness and, while blinded by the arc, was able to find his way to the control center where Morrissey administered first aid. Before going to the hospital, Jones helped other miners find fuses to repair the blackout caused by Jones’ accident. Jones was driven to the hospital, treated, and released within a few hours. The Secretary also relies on the fact that Jones was in shock as a result of the incident. However, the Secretary presented no evidence as to the nature of the shock or its relationship to the seriousness of the injuries sustained by Jones.

Cemex argues that the injury sustained by Jones was not a serious one and did not have a reasonable potential to cause death. Cemex further maintains that nothing came to its attention that would have led it to believe that any potential for death existed. The injured miner was walking and talking when he returned to the control room and, although seemingly stunned, he helped the miners find fuses and underwent some first aid in the form of putting his hands under the water. An ambulance was not called, and Jones was driven to the hospital by Morrissey.

I agree with Cemex, that while there is some evidence that the burns to Jones were serious, there is insufficient evidence in the record to show that the burns that Jones received were of such a nature that they could be described as having a reasonable potential to cause death.

In addition to the inquiry into the exact nature of Jones injuries, the Secretary maintains that the nature of the events surrounding the accident should be considered when making a determination as to whether an injury has a reasonable potential to cause death. Cemex takes the position that, in determining whether there is a reasonable potential for death, the court should focus on the nature of the injury itself and not the nature of the events that caused the injury. In Cougar Coal Co., 25 FMSHRC 513 (Sept. 2003), a miner was exposed to an electric shock of about 7200 volts, which in turn caused the miner to fall from a height of 18 feet, hit his head during the fall, and lose consciousness. In reversing the judge's decision that immediate notification was not required, the Commission held that the nature of the events surrounding the injury, as well as the actual injury sustained, must be considered when determining whether the accident had a reasonable potential to cause death. Id. at 520. In the present case, the Secretary argues that the exposure to 4160 volts can reasonably be expected to result in death. However, the only evidence in the record to that effect, is one statement by the inspector, that a shock from 4160 volts could cause death. I do not find that sufficient to demonstrate that the mine operator knew or should have known of the potential to cause death.

I find that the Secretary failed to establish a violation of section 50.10. The regulation does not require mine operators to immediately report every injury that requires off-site emergency care at a hospital or clinic. Although it is unclear what Jones’ initially suffered, it became very apparent within a short time that the worst injuries received by Jones were burns to his hands. Unlike the miner in Cougar Coal who received an electrical shock, fell 18 feet and was resuscitated with CPR, I find Jones’ injuries were not life threatening. Although there is some indication, through the opinion of the mine inspector, that a shock from 4160 has the potential to cause death, I must look at both the injury-causing event, as well as the resulting injuries. Here, the Secretary has not sustained his burden of proving a violation of the cited standard. Accordingly, this citation is vacated.

II. PENALTY

The principles governing the authority of Commission Administrative Law Judges to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties

provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R.§ 2700.28. The Act requires that, “in assessing civil monetary penalties, the Commission [ALJ] shall consider” six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect on the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i). In keeping with this statutory requirement, the Commission has held that “findings of fact on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). Once findings on the statutory criteria have been made, a judge’s penalty assessment for a particular violation is an exercise of discretion, which is “bounded by proper consideration of the statutory criteria and the deterrent purpose[s] . . . [of] the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 2000).

The history of assessed violations was admitted into evidence and shows a reasonable history for this mine. The mine employs 95 miners at this location, is a part of the larger Cemex organization and, therefore, I find the size of the operator to be large. The operator has stipulated that the penalties as proposed will not affect its ability to continue in business. The gravity of each violation is discussed above, and, in the three violations, I have found the gravity to be serious, and that the seriousness resulted in the injuries received by Jones. The negligence is also discussed above. The operator demonstrated good faith in abatement. While Cemex takes issue with the special assessments and penalty amounts proposed by the Secretary, I note that I have determined the subject penalty amounts based on my independent analysis of the six factors discussed above. As noted above, I assess the following penalties:

Citation No. 8589547 $35,000.00

Citation No. 8589548 $20,000.00

Citation No. 8589549 $35,000.00

Citation No. 8589550 Vacated

III. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. 820(i), I assess the penalties listed above for a total penalty of $90,000.00 for the citations and orders decided after hearing. Cemex is hereby ORDERED to pay the Secretary of Labor the sum of $90,000.00 within 30 days of the date of this decision.

/s/ Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution: (by certified mail)

Timothy Turner, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202

Michelle Witter, Jackson Kelly PLLC, 1099 18^th Street Suite 2150, Denver, CO 80202