FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N.W., SUITE 9500

WASHINGTON, D.C. 20001

(202) 434-9933

June 28, 2012

DECISION

Appearances: Nadia Hafeez, Esq. Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for the Petitioner;

                          Karl Kloepfer, pro se, Paul, Idaho, for the Respondent

Before: Judge Moran

            Involved in this proceeding under the Mine Act are six citations/orders. Four involve the guarding standard found at 30 C.F.R. § 56.14107(a), which deals with moving machine parts that can cause injury and requires that such parts be guarded to protect persons from contacting such parts. The fifth citation, invoking 30 C.F.R. § 56.11002, pertains to handrails, and requires that crossovers, elevated walkways, elevated ramps, and stairways be provided with handrails and maintained in good condition. The last matter involves 30 C.F.R. § 56.18002(a), a provision requiring operators to examine each working place at least once each shift for conditions which may adversely affect safety or health. It is related to the other five citations/orders because, if any of those are upheld, that can support the contention that there must have been an inadequate examination of the mine's working places. An overarching issue for all these matters pertains to whether the mine cited should have had its own mine ID, a consideration which impacted the proposed penalty calculation.

            For the reasons which follow, the Court finds that Kloepfer’s original mine ID was properly applied to the Respondent's cited portable operation. Further, while it upholds each of the violations, but not the special findings associated with them, the Court reduces significantly the proposed penalties because the facts do not warrant the amounts proposed.

The mine ID issue.

            At the time in issue Respondent Kloepfer had two plants. Its significantly larger facility, Plant 1, is some 35 miles from Plant 4. It was at its smaller Plant 4 that Kloepfer was cited for the alleged violations in this litigation. In Mr. Kloepfer's opening statement he described Plant 4 as a completely new startup operation which had only been in operation for 1 and ½ days before the MSHA inspection which produced the citations in issue here.

            Inspector Ron Jacobsen, supervisory mine inspector since 2001, testified on the mine ID issue. Jacobsen stated that MSHA issues a new ID "if there's actually a mine. They have to be taking material and sizing it or crushing it or be an actual mine before a mine ID is assigned." Tr. 167. The Inspector did recall his conversation with Mr. Kloepfer in February 2009 concerning whether Plant 4 needed a separate legal ID. Tr. 167. According to Inspector Jacobsen, Kloepfer was going to take a portion of his existing plant and move it approximately 20 to 30 miles away to the Plant 4 location. Tr. 168. The Inspector noted that there is a form for operators to fill out when they move a portable plant and that this is in place of getting a new mine ID. Tr. 168. Referred to GX P 15, the Program Policy Manual, Volume III, pertaining to portable operations, Jacobsen pointed out that it provides only that the operation send in a notification every time they move, and that a new mine ID is not issued each time. Tr. 169. Jacobsen asserted that there was no need for a new ID to be issued because Kloepfer "took part of the load - - or the conveyors and the equipment from [what] was part of the original plant. And it was [on] a trial basis. And he was not running the other plant." Tr. 169. Jacobsen confirmed that if both plants are operating at the same time, then two mine IDs are needed. Tr. 171. A statement from Mr. Kloepfer during recross-examination of Mr. Jacobsen tended to confirm that if the smaller plant worked out, there would be a situation where both plants would be operating at the same time. Tr. 173. Consistent with that, Mr. Kloepfer stated that prior to the fall of 2011 the two plants did not operate simultaneously. Tr. 188. Thus, simultaneous running of the two plants did not occur before the fall of 2011. Tr. 189, 199. Accordingly, consistent with the facts adduced at the hearing, and MSHA's policy, Plants 1 and 4 were properly treated as a single mine and therefore the violation history of Plant 1 was appropriately considered when evaluating the violations found at Plant 4.

The alleged guarding violations

1. Citation No. 6475309, pertaining to 30 C.F.R. 56. 14107(a). The government proposed a penalty of $4,329.00 for this alleged violation. 30 C.F.R. 56. 14107(a) provides: (a) Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury. (b) Guards shall not be required where the exposed moving parts are at least seven feet away from walking or working surfaces. An exception to the guarding requirement is set forth at 30 CFR § 56.14112(b), entitled, "Construction and maintenance of guards." That subsection provides that "Guards shall be securely in place while machinery is being operated, except when testing or making adjustments which cannot be performed without removal of the guard."

            The aforementioned Supervisory Mine Inspector Ron Jacobsen testified about each of the alleged violations. Part of his duties includes reviewing the work of the inspectors who work for him. Tr. 34. Jacobsen is the supervisor of Inspector Denis Karst and it was Inspector Karst who inspected Kloepfer's Prep Plant 4 on February 11, 2009. Karst would have testified but a recent medical problem precluded his testimony at the hearing and for an indefinite period of time in the future. As with each of the disputed matters in this case, it was Karst who cited the Respondent for the guarding violation, Citation No. 6475309, pertaining to 56. 14107(a). As noted, the standard requires that moving machine parts be guarded. Tr. 36. The citation states that moving machine parts, including a V-belt drive and a head pulley, were not guarded. Tr. 36. GX P 1. Injuries from coming into contact with such unguarded parts include dismemberment type accidents, such as tearing off a finger. GX P 3 is a photograph of the V belt in issue for that citation and it reflects the V belt in its unguarded state. Tr. 38-39. Jacobsen marked on GX 3, circling the unguarded pinch points he had referred to earlier in his testimony and designating that marking with the symbol "PP" (with "PP" standing for "pinch point"). Tr. 41.

            Upon the government's completion of its evidence pertaining to the four guarding violations alleged, Mr. Kloepfer cross-examined Inspector Jacobsen about those, making the point that Jacobsen has never actually visited the Kloepfer plant in issue. Tr. 69.

            The Court also inquired about the abatement of this guarding violation, learning that a door, which was present, was simply closed to abate the citation. Tr. 72.

            Upon consideration of all the evidence, the violation was established but, in context, it was barely more than a technical violation, as someone merely forgot to close a door.

2. Citation number 6475300 pertaining to 30 C.F.R. 56. 14107(a). The government proposed a penalty of $31,988 for this alleged violation. Tr. 47. This was later changed to section 104(d)(1) notice.

            Inspector Jacobsen was asked about GX P 5, which exhibit refers to Citation number 6475300 and it too involves an alleged violation of 56.14107(a). The Inspector stated that the self-cleaning tail pulley, return roller and the head pulley were not guarded on the 605 cone conveyor. Tr. 43. Jacobsen stated that the hazard was entanglement. One greasing or cleaning those may do so while it is in operation and that is how the harm could come about. Tr. 43 and GX P 6. As before, Jacobsen marked the pinch points on that photograph. Tr. 44. Jacobsen considered the risk of getting caught to be "very likely" and that the result would likely be fatal. Tr. 44-45. To demonstrate the potential harm, GX P 4, a fatality report involving a conveyor at another mine (i.e. not the Respondent’s) in which a miner got caught with fatal results, was introduced. Tr. 45. As noted, the Citation, reflected in GX P 5, also reveals that it was modified from a 104(a) citation to a 104(d)(1) citation. Tr.46. Jacobsen, reading from the citation, stated that the basis for the change was the issuing inspector’s recording that Kloepfer's foreman, Steven Hill, told him that he was aware of the guard being missing. Jacobsen added that MSHA considers anything more than one shift to be "an extended period of time." Tr. 46.

            A guard was installed to abate the violation. The Court noted that the record does not reveal one way or the other whether there was a guard, but that it had been temporarily removed, as opposed to no guard ever being present. Tr. 74. Jacobsen also agreed that the time of abatement is based on when the inspector next returned to the site and then observed the condition corrected. Accordingly, it is possible that the guards were installed well before the inspector returned. During cross-examination, Inspector Jacobsen could not recall if the decision to change some of the citations to (d) orders occurred after consultation with him. Tr. 78.

            Upon consideration of all the evidence, the violation was established.

3. Citation number 6475301, pertaining to 30 C.F.R. 56. 14107(a). The government proposed a penalty of $35,543.00 for this alleged violation. This too was later changed to a section 104(d)(1) order.

            Directed to GX P 7, Inspector Jacobsen testified about citation number 6475301 and he identified it as another violation of the same guarding standard as the previous two. As with the others, Inspector Jacobsen circled the pinch points involved, which were on the self-cleaning pulley and the return roller for the 625 conveyor. Tr. 56. He added that, at the pinch point, the design is such that one's sleeve could easily get caught in it. Serious injuries can result. Tr. 57. The tail pulley here was about 2 feet above ground level and the return pulley was about 4 feet above ground. This height means that exposure to the pinch point can easily occur. Tr. 58. Jacobsen believed that an injury would be very likely to occur because of those factors and because there would be clean up work done around the tail pulley with a shovel and one could be inspecting the tail pulley for noises or other problems too. Tr. 58. The accessibility to the pinch points would also be greater if the surrounding ground were uneven or slick due to weather conditions, such as with snow or rain. This citation too was modified to a section 104(d)(1) order on the same basis as the other modification; that is, that the inspector, after speaking with Kloepfer foreman Mr. Steve Hill, learned that the mine knew that the guard was off. Tr. 59.

            Upon consideration of all the evidence, the violation was established.

4. Citation number 6475305, pertaining to 30 C.F.R. 56. 14107(a). The government proposed a penalty of $35,543.00 for this alleged violation. This was later changed to a section 104(d)(1) order as well, and on the same basis as the others; that the mine knew of the absent guard. Tr. 67.

            Jacobsen was asked about Citation Number 6475305, GX P 9. It too is a guarding violation. In this instance a self-cleaning tail and head pulley were not guarded on the under-screen conveyor. Tr. 60. Exhibit P 10 has two photographs of the condition. The second photo shows a ladder and an entryway into the screen deck. Tr. 61. Although Inspector Jacobsen marked two pinch points, he admitted that he was not certain if the second pinch point was part of the cited condition in the citation because he did not know about accessibility to it. Tr. 62. This is understandable, as Jacobsen has never been to the Respondent’s Plant 4. The witness then marked on the exhibit both pinch points, including the upper pinch point for which accessibility was uncertain. In sum, regarding this alleged violation, Jacobsen stated that there was a tail pulley, a head pulley and a drive that were not guarded. Tr. 65. Like the others, he considered the hazard of entanglement with the attendant injuries, to be "highly likely." Tr. 65. Given MSHA's view about the obviousness of the condition and that it existed for more than a shift, it was changed to show the (d)(1) designation. Tr. 68. The inspector's notes indicate that "access has been moved away from the head pulley which is over 7 feet." Tr. 75. Jacobsen advised that under MSHA policy anything that is over 7 feet is guarded by location. Tr. 76. For this citation it was Jacobsen's understanding that the tail pulley was guarded but that access was removed for the head pulley, thereby guarding that by location. Tr. 76.

            Upon consideration of all the evidence, the violation was established.          

The remaining violations

Order number 6475306, pertaining to 30 C.F.R. 56.11002. The government proposed a penalty of $7,176.00 for this alleged violation. This was later changed to a 104(d)(1) order.

            This alleged violation pertains to a requirement for substantial handrails for elevated walkways. The standard provides: "Handrails and toeboards. Crossovers, elevated walkways, elevated ramps, and stairways shall be of substantial construction provided with handrails, and maintained in good condition. Where necessary, toeboards shall be provided. "

            Here, the handrail for the walkway around the screen deck was not maintained in “good condition,” as a 10 foot long section of the top rail had been removed. Tr. 81. GX P-12. Inspector Jacobsen drew on the photo where the railing should have been. Tr. 83. P 12, page 2 of 4. Reading from the Inspector's notes, Jacobsen stated that there was a 7 foot fall from the deck to the ground. Ice and snow would make the likelihood of as slip and fall incident greater. As with the other matters, Jacobsen considered the risk of an injury to be very likely. Tr. 84. He expressed that a fatality was within the realm of possibilities from such a fall. In support of this the government presented GX P 13, a fatal accident report involving an individual (again at a mine other than the Respondent’s) who fell from an elevated walkway which was 7 feet 4 inches above the ground. Tr. 85. As with the other modifications in this case, here too an interview with the foreman revealed that, as the handrail had been removed so that the screen repair could be done, but not replaced thereafter, the mine knew of the condition. Tr. 86. The amount of the penalty proposed was less than the other modifications because there had not been as many incidents of this type of violation as there had been for the guarding violations. Tr. 87. However, the notes associated with this violation also state that the supervisor was not present due to illness with his child and that the citation occurred on the first day the plant had resumed operations after being down for the previous three weeks. Tr. 88-89. Given its recent resumption, Inspector Jacobsen allowed that he would have eliminated the "reckless disregard" finding. Tr. 90.

            Upon consideration of all the evidence, the violation was established.

The alleged violation for failure to conduct a workplace examination.

Order number 6475313, pertaining to 30 C.F.R. 56.18002(a). The government proposed a penalty of $6,458.00 for this alleged violation.

            Inspector Jacobsen testified about GX P 14, Citation Number 6475313, a section 104(a) citation. The condition cited was for failing to conduct a workplace examination, per section 56.18002(a). Tr. 91. The standard provides: Examination of working places. A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.

            This citation is related, of course, to the other violations cited by the government for the mine's failure to address those violations and ergo its conclusion that finding such violations demonstrates that the workplace examination was inadequate. However, the standard requires that such an exam be done each shift. Tr. 92. Jacobsen agreed that to comply with the standard that exam can be done at any time during a shift. Yet, Jacobsen had no idea if the standard was cited before the shift had ended. If that were the case, it would have been premature to issue it. Tr. 93. Though Jacobsen stated that it was possible the failure to do the workplace exam could have occurred the day before and that there is an obligation to do such an exam even if the plant is not operating, he agreed that this was in the realm of pure speculation on his part. Tr. 93-94. On cross-examination, Jacobsen also agreed that one could tie off with a harness if up where the handrail was removed. In fact, if that were the case, Jacobsen agreed there would not be any violation of the cited handrail. Tr. 96.

            Upon consideration of all the evidence, with no evidence as to whether the shift had been completed, nor evidence as to the particular shift involved, the violation was not established and the Order is DISMISSED.

DETERMINATION OF APPROPRIATE PENALTIES

            There is no dispute that the Part 100 penalty regulations apply only up to the point that the matter is heard by an administrative law judge for the Commission. Thus, 30 CFR § 100.2, "Applicability," provides that the "criteria and procedures in this part are applicable to all proposed assessments of civil penalties for violations of the Mine Act and the standards and regulations promulgated pursuant to the Mine Act, as amended.” As noted in Secretary of Labor v. Laramie County Road & Bridge, 17 FMSHRC 902, 1995 WL 348172, (June 5, 1995) (Judge Manning), "Section 110(i) of the Mine Act, 30 U.S.C. § 820(i), sets out six criteria to be considered in determining the appropriate civil penalty. . . . Because the penalty [the judge] assessed in this proceeding is based on the evidence developed at the hearing, the Secretary's penalty regulations at 30 C.F.R. § Part 100 are not relevant. Sellersburg Stone Co., 5 FMSHRC 287 (March 1983), aff'd, 736 F.2d 1147, 1151-1152 (7th Cir. 1984). [And accordingly, the judge did] not consider[ ] those regulations in assessing a penalty in th[e] case."

            The Commission, as noted by Judge Manning, has spoken to the issue in Secretary of Labor v. Sellersburg Stone Company, 5 FMSHRC 287, 1983-1984 O.S.H.D. (CCH) P 26456, 1983 WL 165153 (March 11, 1983). There, it observed "[i]n the Mine Act, Congress divided enforcement responsibility between two separate and independent agencies. The Secretary of Labor is granted authority to promulgate mandatory safety and health standards, to enforce such standards through inspections, and to issue citations and withdrawal orders for violations of the Act and mandatory standards. This Commission was established as an agency independent of the Department of Labor and is authorized to adjudicate contested cases arising under the Mine Act. 30 U.S.C. § 823. Consistent with this bifurcated enforcement structure, the Act's penalty assessment scheme divides penalty assessment authority *291 between the two agencies. Section 105(a) of the Act provides that if the Secretary of Labor issues a citation or order, "he shall ... notify the operator ... of the civil penalty proposed to be assessed ... for the violation cited and that the operator has 30 days within which to contest the ... proposed assessment of penalty." 30 U.S.C. § 815(a) (emphasis added). If an operator does not contest the Secretary's proposed penalty assessment, by operation of law the proposed assessment becomes a final order not subject to review by any court or agency. Id.

            If an operator contests the Secretary's proposed assessment of penalty, however, Commission jurisdiction over the matter attaches. 30 U.S.C. § 815(d). When a proposed penalty is contested, the Commission affords an opportunity for a hearing, "and thereafter ... issue[s] an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation, order, or proposed penalty, or directing other appropriate relief." Id. (Emphasis added). See also 30 U.S.C. § 810(i)("The Commission shall have authority to assess all civil penalties provided in this Act"). Thus, it is clear that under the Act the Secretary of Labor's and the Commission's roles regarding the assessment of penalties are separate and independent. The Secretary proposes penalties before a hearing based on information then available to him and, if the proposed penalty is contested, the Commission affords the opportunity for a hearing and assesses a penalty based on record information developed in the course of an adjudicative proceeding. See Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine Safety and Health Act of 1977, at 89, 632-635, 656-657, 666-662, 906-907, 910-911, 1107, 1316, 1328-29, 1336, 1348, 1360.

            The respective governing regulations adopted by the Commission and the Secretary regarding penalty assessments clearly reflect the Act's bifurcated penalty assessment procedure. Commission Rule of Procedure 29(b) provides: In determining the amount of the penalty neither the judge nor the Commission shall be bound by a penalty recommended by the Secretary....

29 C.F.R. § 2700.29(b). The Secretary's regulations in 30 C.F.R. Part 100 expressly apply only to the Secretary's proposed assessment of penalties. See also 47 Fed. Reg. 22287 (May 1982) ("If the proposed penalty is contested, the [Federal] Mine Safety and Health Review Commission exercises independent review and applies the six statutory criteria without consideration of these [MSHA penalty assessment] regulations.") **4 Thus, in a contested case the Commission and its judges are not bound by the penalty assessment regulations adopted by the Secretary. Rather, in a proceeding before the Commission the amount of the penalty to be assessed is a de novo determination based on the six statutory criteria specified in section 110(i) of the Act (*292 30 U.S.C. § 820(i) and the information relevant thereto developed in the course of the adjudicative proceeding. Shamrock Coal Co., 1 FMSHRC 469 (June 1979), aff'd, 652 F.2d 59 (6th Cir. 1981)."

            The Secretary takes note that penalties must be "of an amount which is sufficient to make it more economical for an operator to comply with the Act's requirements than it is to pay the penalties assessed." Sec Br. at 9, quoting S.Rep. No. 95-181 at 90 (1977). The Court agrees with that principle in penalty assessments. However, that point must not be at the expense of ignoring the six specified statutory penalty criteria that are to be considered in assessing a civil penalty. 30 U.S.C. 820.

            Accordingly, the Court's role is to apply the statutory criteria to the facts and arrive at an appropriate penalty.

THE SIGNIFICANT AND SUBSTANTIAL and UNWARRANTABLE FAILURE DESIGNATIONS

            The government contends that each of the four guarding violations, as well as the handrail violation, was "S & S." The workplace examination violation, also marked as “S & S,” has been dismissed.

            A significant and substantial 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 question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

            The government's also contends that three of the four guarding violations (numbers 6475300, 6475301, and 6475305) were unwarrantable failures on the Respondent's part and that number 6475306, the handrail violation, was also an unwarrantable failure.

            The term "unwarrantable failure" is defined as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference," or the "serious lack of reasonable care." Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. Aggravating factors include the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts were necessary for compliance, the operator's efforts in abating the violative condition, whether the violation was obvious or posed a high degree of danger and the operator's knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). Moreover, the Commission has examined the conduct of supervisory personnel in determining unwarrantable failure and recognized that a heightened standard of care is required of such individuals. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (Dec. 1987) (section foreman held to demanding standard of care in safety matters); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (November 1995) (heightened standard of care required of section foreman and mine superintendent). All of the relevant facts and circumstances of each case must be examined to determine if an actor's conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.

            For the following reasons, upon consideration of all the record evidence, the Court concludes that none of the violations were significant and substantial and that none of them warrant an unwarrantable failure designation.

            The Respondent called James Spencer Kunzler. Mr. Kunzler was filling in for Mr. Hill on the day in issue, as the latter had his family medical issue that day, February 11, 2009. Tr. 100-101. The witness stated that at the time of the citations in issue, the plant had just reopened that day. At any rate, Mr. Kunzler had not been at the plant until the day of the inspection. He stated that on that day he was not aware of the V belt being unguarded. Tr. 103. On the day of the inspection, Mr. Kunzler had not yet done his morning inspection. Tr. 103. Thus, he stated that he had not seen the unguarded area depicted in P 3 at photograph 1. Tr. 104. This was also the first day he had ever worked at this location. Tr. 104. He stated that at that time he was aware that the workers were still "putting the plant - - some things together and that they were making guards for things." Tr. 104. He added that it had been the mine's policy that if there were any "plug-up or breakdown or anything, [they would] shut the machinery down, and then take care of it, and - - not to be around anything while the machinery is running." Tr. 105. He added that he follows that same procedure when he is running his own power screener at the plant. Mr. Kunzler did not know however, if they were making a guard or simply reattaching a guard that was already made. Tr. 105.

            Mr. Kunzler, when asked about photograph P 6, and upon noting that there appeared to be some buildup under the belt and probably the crusher, again stated that he was unaware of that condition, as he was filling in for Mr. Joe Sanchez and he had not done his inspection at the time of the citation's issuance. Tr. 105. As his job entails running a loader and feeding a belt, he had not been down to the cited area before the inspector arrived. Tr. 106. It was Mr. Sanchez who was getting the crusher and generator started. Tr. 106. Mr. Kunzler stated that his responses would be the same about all the guarding citations; he had not yet seen their condition at the time the inspector arrived. Tr. 107. Explaining further his work on the day in issue, Mr. Kunzler stated that he checked both loaders and got them warming up while Joe started the generator and the crusher. At that point, Mr. Kunzler started feeding the plant and Joe began removing the product. If a problem were to have developed, it would have been Mr. Sanchez who would have shut everything down.

            On cross-exam, Mr. Kunzler stated he did not know "for a fact" that this was the first day the plant was running. Tr. 110. On the morning in issue he had not done any walk-around, nor reviewed any exams from the prior day to determine if there were pre-existing hazards. Tr. 110. He added that there were just himself and one other employee, Joe Sanchez, at the site that day and that they stayed on their loaders. Thus, he did not see it possible that anyone could travel into the cited area. Tr. 112. Mr. Kunzler then reiterated that on the day in issue there were only two employees at the plant; himself and Mr. Sanchez. Tr. 113. Kunzler also reaffirmed that he had no responsibilities that day which would have brought him into contact with the unguarded machinery. Tr. 114. Joe Sanchez's job at the plant was to remove the product after it was crushed, using a loader tractor. Based on what he saw, Kunzler stated that Mr. Sanchez was never exposed to any of the unguarded machine parts. Tr. 115. Both employees were operating loaders. Tr. 115. Kunzler concluded that there was no reason why either of them would have come into contact with the unguarded parts. Tr. 115. On further cross-exam, Kunzler stated that if any reason arose for either to get off their loaders, they "would definitely shut the plant down." This was company policy. Tr. 116. Neither man got out of their loaders that day until the inspector arrived. Tr. 117. As Mr. Kunzler works alone, he would never think of doing anything but shutting things down if there was an issue, as there would be no one there to help him if he needed it. Tr. 118.

            Steven Hill testified. He stated that he is the "Supervisor/laborer" for the crusher and a laborer there too, as needed. Tr. 119. Normally he is the supervisor at Plant 1. Tr. 119. He stated that, during the plant set-up phase, the plant was not operating. This start-up process was in the first part of January after the holidays. Tr. 121. There were problems to be solved concerning bad bearings on the screen unit. Tr. 121. The repair to the screening unit had to be made off site. Tr. 122. In order to remove the unit and take it some 15 to 20 miles away for the needed repairs, they had to cut the top hand rails off. Tr. 123. The whole repair process for the seized bearing issue took almost a month to accomplish. Tr. 124. Hill testified that "we no more than got the plant back together and then MSHA was there for their inspection." Tr. 124. The MSHA inspection occurred on February 11th and Hill was not there on that day, as he was dealing with the aforementioned medical issue regarding his son. Tr. 125. Nor was Hill at the plant the day prior to the inspection. Tr. 125. Hill believed he was at the plant last a week before the inspection. As to when the plant operations actually started up, Hill distinguished trial start-ups from "full-blown" operations. On the day of the inspection Hill stated that he was uncertain if everything was in specification to run. He did not know if they were running product on the day of the inspection, and as he noted, he was not at the plant the day prior to the inspection. Tr. 127. As to the day prior to the inspection, Hill believed that they only ran product to see if everything was ready or whether more adjustments were needed. Tr. 128. Hill did not know for a fact if they "ran product" either on the 11th or the 12th. Tr. 128. Further, they do not keep records of product during the "set-up" phase.

            Shown Exhibit P 3, Hill identified it as a gear box and pulley. He agreed that the V belt is not guarded in that photo. This he explained is because there is a door to that area and that it is normally closed, so that there is not access to it. Tr. 130. The door had been there; it was not created to abate the citation. Asked about P 6, Hill identified it as "605, our roller cone." Tr. 131. He was aware that it was not guarded. Tr. 131. He informed the workers that if the plant was running they were not to be around any of the moving machinery. Tr. 132. When a plant first starts up there are inevitable adjustments that need to be made. Tail rolls, conveyors and other items need adjustments to be made on them. Hill stated that it was impractical to have guards in place until after they are sure everything is running properly. Tr. 133.

            However, without more specificity from the Respondent, the Court does not view such impracticability to excuse compliance but it is a mitigating consideration. Hill maintained that guards would be installed after the adjustments have been made. Tr. 134. Still, he did not know if further adjustments were needed to be done on the 11th. Tr. 134. Hill expressed that the policy that workers were to stay away from all moving machinery existed during the set up phase as well as when operations would begin. Tr. 134. When asked by the Court about the plant’s operational status, the best Hill could offer was that they were still making adjustments on February 11, 2009. Tr. 135.

            Referred to P 8, Hill stated that the conveyor there had not been up long and that they had to take it down and change its belting. There were adjustment issues they were dealing with and at that point they were unsure if additional adjustments would need to be made. Tr. 135-136.

To solve one problem, they installed a "chevron" cleated belt to deal with material sliding back down the prior, smooth textured, belt. Tr. 136. They had installed the cleated belt just before he had to leave to deal with his child's medical issue. Tr. 137. Thus, there was credible testimony that adjustments were still being made at the plant.

            Capsulizing his testimony, Hill asserted that for all the instances in which the absence of a guard was cited, they "were in the startup mode, and [they] were still trying to make adjustments that needed to be done to the plant to where [they] can run and make material." Tr. 137-138. Hill added that the feeder, generator, electrical trailer and the screen were being operated for the first time in several years. Tr. 138. He maintained that the head roll did not need to be guarded at the big operation because it was seven feet above ground level. Even after the plant was set up, they did not have the right screens in place. Several different screens were tried before they arrived at the right ones. When operations were to start, the plan was that it would be operated by two men, working as the weather permitted. Temperatures at 23 or less or a snow forecast for the day would preclude operations. Tr. 141. Hill reiterated that on the day of the inspection, the 11th, he wasn't aware of the plant being ready for operation. Tr. 142. When running, one loader feeds the plant out of the big rock pile and the other loader operator packs material away from the plant when it is running. Tr. 144. The plant only keeps production records when it is running. Then, they record how many hours they ran. Tr. 147. The Secretary apparently did not seek the plant’s production records and the record does not otherwise inform about the issue.

            On cross-examination Hill was asked about GX P 2, notes of a conversation between Inspector Karst and him. Those notes reference that workers were told to stay away from the plant while it was running and guards were off. Hill stated that this remark was made in the context of the plant being in a start-up mode. Tr. 148. At any rate, Hill admitted that he told Inspector Karst that he knew the guards were not in place. Tr. 151. He added that the requirement only exists when the machinery is being operated but that testing or adjustments are an exception when those tasks cannot be performed with guards in place. Tr. 152. Hill, on redirect, stated that his awareness of the plant being operated was that it occurred on the 12th. Tr. 153. When he left town to deal with his son's medical issue, he knew there were still some adjustments that needed to be made. Tr. 153. His plan was to install the guards as soon as he returned from the medical issue. Thus, Mr. Hill maintained that the "final guarding' would be done after the plant was up and ready to go. Tr. 154. Accordingly, the bottom line of Mr. Hill's testimony was that the plant was still in its set-up and start-up stages and that guarding must await such final adjustments. Tr. 155. Thus, the record is unclear about the plant’s true operational status a the time of the cited violations. Based on all the evidence, at best, the plant had just resumed operations either on the day of the inspection or the day before. As noted, its recent resumption does not excuse the cited violations, but it does impact penalty considerations.       

      

            Accordingly, based upon the evidence of record, as recounted above, the Court finds that, as to the significant and substantial designations, there was not a reasonable likelihood, under these particular circumstances, that the hazard contributed to would result in an injury. This is because the mine had only recently started its operation, and because it was only a two person operation, with the two individuals restricted to the operation of their respective loaders. The company policy, that equipment had to be shut down before working on it, while not excusing the violations, did impact on the Court’s evaluation of the reasonable likelihood of an injury occurring. Further, the mine was still finalizing its operation, working out problems with their various machinery conveyors. While it was not definitively established that those steps precluded the installation of guards, there was at least some credible testimony that the guards would make the final adjustments more difficult. All of this was complicated by the fact that at the time that the plant had just begun operations its supervisor, Mr. Hill, had been called away from the mine site to attend to a family medical issue. Thus, the Court concludes that, finding Mr. Hill to have been credible, once he returned to the mine site, the guarding issues would have been attended to, irrespective of any MSHA inspection. The same reasoning applies to the unwarrantable failure designations and the "high negligence" label applied to the workplace examination.  

            Although the Secretary notes, at page two of its post-hearing brief, that the inspector's determinations should be given deference so long as those determinations are reasonable, the Court has found that the Respondent's witnesses were credible and that their testimony impacted favorably on the special findings issues.

            On the issue of the mine's history of violations, the Secretary has admitted that the unusually high proposed penalties for the six violations are in large measure attributable to the combination of Plant 1's guarding violations history and the impact of those past violations in tallying the Secretary's proposed penalties for the violations found at Plant 4. As noted, the Part 100 penalty regulations do not impact the penalty assessments here. The penalties imposed here are based upon the statutory criteria. Nor has the Court ignored the mine's history of prior violations, as it is imposing an additional $1,000.00 for each of three of the four guarding violations. The exception relates to citation number 6475309, for which there was an acceptable guard present, in the form of a door which blocked access to the exposed moving parts. However, the door was open. The condition was abated by simply closing the door. For that violation, the Court imposes a penalty of $100.00 (one hundred dollars). For the handrail violation, as noted, there were mitigating circumstances involved, which required the temporary removal of the handrails. Given that the operation had just started and the government's admission that there would not be any violation if a worker were tied off when on the walkway around the screen deck, a penalty of $1,000.00 is appropriate. Finally, as to the workplace examination violation, there was uncertainty in the record as to whether the citation was prematurely written, as the shift had not ended at the time that it was issued. The citation itself records that the person in charge advised that he normally did his exam at the end of his shift and that it was his first day at Plant 4. Although the citation declared that some of the absent guards were easily observable while starting the plant that day, the standard only requires that the exam be done at some point during the shift. Accordingly, on this record, the citation was prematurely issued and must be vacated.

SUMMARY OF PENALTY DETERMINATIONS

            As described above, the mine's history of violations has been taken into account. In terms of the size of the business, per Exhibit A for both dockets, the Respondent is a small mine. The negligence and gravity of the violations have been previously discussed. Respondent has stipulated that, even as to the penalties proposed by the government, such penalties would not have an effect on its ability to continue in business. Tr. 29. Finally, there is no dispute that the Respondent demonstrated good faith in achieving rapid compliance after the violations were noticed.  

Citation Number 6475309, pertaining to 30 C.F.R. 56. 14107(a). A $100.00 penalty is imposed.

Citation number 6475300 pertaining to 30 C.F.R. 56. 14107(a). $300.00 plus $1,000.00 given the violation history for this standard, for a total penalty of $1,300.00.

Citation number 6475301, pertaining to 30 C.F.R. 56. 14107(a). $300.00 plus $1,000.00 given the violation history for this standard, for a total penalty of $1,300.00.

Citation number 6475305, pertaining to 30 C.F.R. 56. 14107(a). $300.00 plus $1,000.00 given the violation history for this standard, for a total penalty of $1,300.00.

Order number 6475306, pertaining to 30 C.F.R. 56.11002. A total penalty of $1,000.00 is imposed for this violation.

Citation number 6475313, pertaining to 30 C.F.R. 56.18002(a). This Order is DISMISSED on the basis of insufficiency of proof by the government.

ORDER

            A total civil penalty of $5,000.00 (five thousand dollars) is hereby imposed upon KLOEPFER INC. and it is ORDERED to pay that sum for the violations listed above. Payment is to be made to the Mine Safety and Health Administration with 40 days of the date of this Decision. Upon timely receipt of payment, the captioned civil penalty matters ARE DISMISSED.

            Finally, Mr. Kloepfer would be well advised to make all of its operations highly vigilant from this time forward with regard to compliance with all MSHA safety and health standards and in particular, but not exclusively, with regard to guarding requirements. It is very likely that future violations could come with dramatically increased civil penalties. This would be unfortunate as such expensive civil penalties are entirely avoidable.

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution: (email and certified mail) 

Nadia Hafeez, Esq. Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, Colorado, 80202-5708.

Karl Kloepfer, 505 East Ellis, P.O. Box 875, Paul, Idaho, 83347