FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

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

July 13, 2012

DECISION AND ORDER

Appearances: Emily B. Hays, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado for Petitioner

Don Blewett, pro se, Highland Enterprises, LLC, Grangeville, Idaho for Respondent

Before: Judge McCarthy

I. Statement of the Case

            These cases are before me on petitions for assessment of civil penalties filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (MSHA), against Highland Enterprises, LLC (Respondent), 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). Five 104(a) citations remain at issue.

            An evidentiary hearing was held in Moscow, Idaho. The parties introduced testimony and documentary evidence, and witnesses were sequestered. On the entire record, including my observation of the demeanor of the witnesses, and after considering the post-hearing briefs, I make the following:

II. Factual Background

A.        Stipulated Facts 

            The parties stipulated to the following facts, which were received into evidence as Joint Ex. 1. Tr. 10-11.      

1. These dockets involve a surface crushed and broken-stone mine known as the Mt. Solo Pit, which is owned and operated by Respondent.

2. The mine location changes. When the citations in the above-captioned dockets were issued, the mine was located near Lewiston, Idaho.

3. The mine, MSHA ID 10-01911, is subject to the jurisdiction of the Federal Mine Safety Act and Health Act of 1977 (the Mine Act), 30 U.S.C. §§ 801 through 965.

            4. The Administrative Law Judge has jurisdiction over these proceedings pursuant to

            § 105 of the Mine Act.

            5. Respondent is an operator as defined in section 3(d) of the Mine Act, 30 U.S.C.

            § 803(d).

6. Respondent is engaged in mining operations in the United States and its mining operations affect interstate commerce.

7. Kenneth Poulson and Scott Amos are authorized representatives of the United States Secretary of Labor assigned to MSHA’s Boise, Idaho field office and were acting in an official capacity when the citations were issued.

            8. Respondent demonstrated good faith in abating the violations at issue in these dockets.

B.        Findings of Fact and Conclusions of Law Regarding Unsettled Citations

            1.         Docket No. WEST 2009-1213-M

                        a.         Citation 6475792

            Citation 6475792 alleges that Respondent violated 30 C.F.R. § 56.11027 by failing to provide a handrail on a work platform at the portable crusher plant. The cited standard at 30 C.F.R. 56.11027 provides that “[s]caffolds and working platforms shall be of substantial construction and provided with handrails and maintained in good condition . . . .” The citation alleges the following condition or practice:

There were no handrails provided on the elevated work platforms for the cedar rapids roll crusher on both sides. The work platform measures approximately 50 inches above the ground. The work platform was approximately 24 inches wide and 9 feet long. There were sets of access steps provided on both sides to access the work platform. Miners would access this area to perform maintenance work as needed. This condition exposes persons to serious fall related injuries.

            The violation is alleged to be significant and substantial (S&S), with gravity alleged to be reasonably likely to result in lost workdays or restricted duty, and one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty of $585.00.

            On April 14, 2009, MSHA inspector Kenneth Poulson inspected Respondent’s roll crusher at the Lewiston, Idaho location and issued the instant citation because an alleged work platform did not have handrails. Tr. 117-18; P. Ex. 4, pp. 5-6. Respondent argues that the cited area is a trailer fender, not a work platform, and the fender is required by the Department of Transportation for safety during transport. Respondent further argues that inspector Poulson conceded that there would be no violation if Respondent’s miners tied off when using the alleged platform (Tr. 165-170), and the testimony of Respondent’s foreman, Colby Blewett, established that Respondent did so. R. Br. at 2; Tr. 355, 398, 408-09.

            At the hearing, Colby Blewett admitted that the cited area was used on rare occasions as a work platform. See Tr. 345-355, 408-09. It is undisputed that the work platform had no handrails. Tr. 117; P. Ex. 4, pp. 5-6.

            Blewett further testified, however, that Respondent’s miners always tied off with a one-foot lanyard, and he informed inspector Poulson of this practice. See Tr. 345-55, 408-09. By contrast, inspector Poulson testified that Blewett told him during the inspection that Respondent did not use the cited area as a work platform, and if Respondent needed to access the area, it would use a ladder. Tr. 129-130. Poulson testified that the issue of tying off was not broached by Blewett. Tr. 170.  

            R. Ex. 1, an April 21, 2009 letter to the MSHA Conference and Litigation Representative, contesting the violations in Docket 2009-1213, does not mention the tie-off rationale as a basis for the contest of this citation. There is no mention of tying off or using a safety lanyard in the letter. Rather, Respondent states in said letter that the platform was not a work platform and that “no maintenance work” was done on the platform. As noted, Blewett’s admission at trial established that this was not the case. In these circumstances, I credit Poulson that the “tying off” defense was not raised before trial. Rather, it was developed at trial, is unsupported by Respondent's own prior statements, and I give it little weight.

             Section 56.11027 unambiguously requires working platforms to have handrails. The standard has no provision exempting a work platform from the handrail requirement because miners allegedly tie off when accessing the platform. The standard covering “tie offs” is set forth in 30 CFR § 56.15005. It provides: “[s]afety belts and lines shall be worn when persons work where there is danger of falling.” Section 56.15005 does not provide any exemption from required safety lines when a handrail is in place. The standards are mutually exclusive. See Northwest Aggregates, 20 FMSHRC 518, 525-526 (May 1998)(ALJ Manning). To the extent that inspector Poulson testified to the contrary at trial (Tr. 166-69), I agree with the Secretary that such testimony represents a misunderstanding of Commission case law.

            In short, even the alleged use of safety lines where there is a danger of falling does not obviate the requirement for handrails on work platforms under the cited standard. Accordingly, I find that Respondent violated 30 C.F.R. § 56.11027 by failing to provide handrails on the work platform on the roll crusher.  

            The citation was terminated when Respondent chose to cut off the platform, after receiving MSHA approval, because it was the quickest and easiest way to get back to work and fill production orders. Tr. 130, 133, 348-349. Therefore, I reject Respondent’s argument that MSHA is financially responsible for re-installing the work platforms. Although I receive R. Ex. 3 into evidence, I find that this estimate of $600.00 to re-weld the work platform back on the roll crusher is immaterial. I conclude, contrary to Respondent’s argument, that MSHA is not responsible to compensate Respondent for such cost.

            I also find that the failure to place handrails on the work platform was S&S. The Mine Act defines an S&S violation as one “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 S&S “if, based on the particular facts surrounding the 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). To establish an S&S violation under National Gypsum, the Secretary must prove the four elements of the Mathies test: (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. See Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies criteria). An evaluation of the reasonable likelihood of injury is made assuming continued normal mining operations. U.S. Steel Mining Co. (U.S. Steel III), 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC 1573, 1574 (July 1984)).

            The third element of Mathies, which requires “a reasonable likelihood that the hazard contributed to will result in an injury,” is often the most difficult element for the Secretary to establish under the Mathies test. See U.S. Steel Mining Co. (U.S. Steel IV), 18 FMSHRC 862, 870 (June 1996) (Marks, Comm’r, concurring in result) (observing that during the 12-year period immediately following Mathies, over 93% of the Commission’s 47 decisions involving an S&S issue concerned the third element). In U.S. Steel IV, the Commission held that “the third element of the Mathies test does not require the Secretary to prove it was ‘more probable than not’ an injury would result.” 18 FMSHRC at 865 (citation omitted).

            At the same time, the Commission has long held that “[t]he fact that injury [or a condition likely to cause injury] has been avoided in the past or in connection with a particular violation may be ‘fortunate, but not determinative.’” U.S. Steel IV, 18 FMSHRC at 867 (quoting Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)). See Elk Run Coal Co., 27 FMSHRC 899, 906–07 (Dec. 2005) (holding that absence of adverse roof conditions at time of or prior to violation does not preclude establishing S&S violation); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996) (noting that absence of accidents involving violative equipment does not preclude S&S finding).

            The Commission recently reiterated these principles in Cumberland Coal Resources, LP, 2011 WL 5517385 (Oct. 5, 2011), and Musser Engineering, Inc., 32 FMSHRC 1257 (Oct. 2010). The Commission emphasized that the test under the third prong of Mathies is whether the hazard fostered by the violation is reasonably likely to cause injury, not whether the violation itself is reasonably likely to cause injury. Cumberland Coal Res., 2011 WL 5517385, at *5; Musser, 32 FMSHRC at 1280–81, citing Elk Run Coal and Blue Bayou Sand & Gravel, supra.

            Applying these principles, I have found the underlying violation of a mandatory safety standard. I also find that the missing handrails, which protect persons from falls, created a discrete fall hazard or measure of danger to safety. With respect to the third and fourth Mathies elements, the Secretary has established that the fall hazard was reasonably likely to cause injury and that such injury would be of a reasonably serious nature. In this regard, I give substantial weight to Poulson’s testimony that even a one-time exposure to the hazard was too great as it was reasonably likely that a miner working off the platform, which lacked handrails and was 50 inches off the ground person would easily fall off either backwards or forwards and receive serious injuries, such as a broken leg, resulting in lost work days or restricted duty. Tr. 120, 127. The record further establishes that miners are exposed to the fall hazard when they access the work platform to adjust a bolt holding tension on the roll crusher (Tr. 121, 125-26; P. Ex. 4, p. 6), or to work on the electrical motor, wiring, v-belt, pulleys, trough and rollers, and Marco cans. Tr. 119-20, 347, 350, 354-55. Given these reasons for miners accessing the work platform, and given Poulson’s testimony concerning the serious injury likely to result from a fall from the platform, the Secretary has established the third and fourth element of the Mathies test and shown that the violation is S&S.

            I further find that the failure to place handrails on the work platform was the result of Respondent's moderate negligence. I have credited inspector Poulson’s testimony that the only mitigating factor that Respondent offered during the inspection was that the cited platform was not a work platform, when Blewett, in fact, knew that he had used the platform for work purposes based on his inconsistent trial testimony. Moreover, I have found that Respondent’s alleged tying-off policy, even if credible, is not a substitute for handrails, and I note that even trained employees violate established company policy. See Tr. 192. In these circumstances, I conclude that Respondent has not shown considerable mitigating circumstances sufficient to establish low negligence. Accordingly, I affirm inspector Poulson’s designation of negligence as moderate. In sum, Citation 6475792 is affirmed, as written.

            I next address the appropriate penalty. A mine operator is subject to a civil penalty for any violation occurring at its mine. 30 U.S.C. § 820. Such penalties provide a “strong incentive for compliance with the mandatory health and safety standards.” Nat'l Independent Coal Operators' Ass'n v. Kleppe, 423 U.S. 388, 401 (1976). In enacting the Mine Act, Congress aimed to set sufficiently high penalties to effect deterrence. “To be successful in the objective of including [sic] effective and meaningful compliance, a penalty should 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 and continue to operate while not in compliance.” S. Rep. No. 95-181 at 90 (1977).

            The Court has broad discretion to assess penalties de novo. See, e.g., Spartan Mining Co., 2008 WL 4287784 at *22 (2008) (affirming ALJ's 800 percent increase of proposed penalty based upon gravity and negligence factors); Mountain Edge Mining, Inc., Docket No. WEVA 2009-1617 (ALJ, May 19, 2011) (imposing a penalty amount eight times that originally assessed by MSHA). In assessing penalties, the Commission and its judges must “consider the operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and 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).  

             I have reviewed the Certified Assessed Violation History Reports in the record. Respondent has about 18 paid violations, three of which were issued as S&S, at the Mt. Solo Pit Mine during the 24 months preceding April 4, 2009. Respondent is a small mine operator. The violations herein were abated in good faith. Respondent does not argue that the penalties proposed will have an adverse effect on Respondent’s ability to remain in business, and two of the proposed have penalties at issue herein have been slightly reduced. My gravity and negligence findings for each violation are discussed herein. Accordingly, applying the penalty criteria set forth in section 110(i), I find that the proposed penalty of $585.00 is appropriate for the violation set forth in Citation 6475792.

                        b.        Citation 6475793

            Citation 6475793 alleges that Respondent violated 30 C.F.R. § 56.14107(a) by failing to guard the #10 conveyor head pulley on the roll crusher. The cited standard at 30 C.F.R. § 56.14107(a) provides that “[m]oving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.” The citation alleges the following condition or practice:

The #10 conveyor head pulley drive v-belts and sheaves was not guarded on the backside to prevent accidental contact with the moving machine parts. The v-belts and sheaves were approximately 42 inches above the work platform deck. The v-belts and sheaves were provided with guarding on all sides except the back side. This area would be accessed on an as needed basis to perform maintenance work. This condition exposes persons to serious injuries should they accidentally contact the moving machine parts.

            The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an injury or illness that could reasonably be expected to result in a permanently disabling injury, and one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty of $176.00.

            Respondent argues that there is no access to the cited area while equipment is running and that all equipment must be shut down before an employee could be within close range of the head pulley. Respondent further asserts that the pulley had never been cited before, and it is more than seven feet above a walkway. R. Br. at 2.  

            During his April 14, 2009 inspection of the # 10 conveyor head pulley, Poulson observed that the back side of the area containing the head pulley components (v-belt, pulleys on the drive motor, and sheaves) for the No. 10 belt was not guarded. Tr. 139; P. Ex. 5. Head pulley components are moving parts that present an entanglement hazard and risk of injury. Tr. 142; P. Ex. 5, p. 1. Respondent admits that the head pulley components were not guarded on the back side. Tr. 409. In addition, Respondent admits that the plant had operated the day prior to the inspection (Tr. 397), and that the roll crusher, including the head pulley components, had been in the identical condition since March 24, 2009. Tr. 357-58. Accordingly, because Respondent admitted to operating the #10 conveyor head pulley in the cited condition, I find the violation of 30 C.F.R. § 56.14107(a).

            The citation was terminated by the termination of the previous citation, Citation 6475792. That is, by removing the work platform, the head pulley components were more than seven feet above ground with no intermediate platform to stand on, and, therefore, no longer required guarding. Tr. 146; P. Ex. 5, p. 5.

            I further find that the citation is non-S&S, and the result of Respondent's moderate negligence. Inspector Poulson recognized that the failure to guard the back side of the head pulley was unlikely to cause an injury because of infrequent access while the equipment was running, but he also recognized that any such injury was reasonably likely to be permanently disabling. Tr. 143. Thus, even though the exposure was minimal, a permanently disabling entanglement hazard was present.

            I find that negligence was designated properly as moderate. Poulson credibly testified that Respondent should have known about the unguarded back side of the head pulley components (Tr. 143), and Respondent admitted to accessing the work platform (while allegedly tied off), but also admitted that there was a hazard if one was standing on the work platform without the conveyor being locked and tagged out. Tr. 354-55. The head pulley was accessible from the work platform and Respondent used the work platform to access it. In these circumstances, I again conclude that Respondent has not shown considerable mitigating circumstances sufficient to establish low negligence. Accordingly, I affirm inspector Poulson’s designation of negligence as moderate.

            In sum, Citation 6475793 is affirmed, as written. Applying the penalty criteria set forth in section 110(i) and outlined above, I find that the proposed penalty of $176.00 is appropriate.

            2.         Docket No. WEST 2010-405-M

                        a.         Citation 6483469  

            Citation 6483469 alleges that Respondent violated 30 C.F.R. § 56.14107(a) by failing to guard the head pulley on the #7 conveyor belt. The cited standard is set forth above. The citation alleges the following condition or practice:

The head pulley of the #7 belt on the screen plant was not guarded on the side. The head pulley was approximately 1 foot above and 20 inches away from the end of the walkway. Miners access this area for maintenance work on occasion. Contact with head pulley would result in entanglement type injuries.

            The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an injury or illness that could reasonably be expected to result in a permanently disabling injury, and one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty of $100.00.  

            Respondent argues that this area was guarded, pursuant to the directions of a previous inspector, when a chain was installed at the end of the walkway, and the area passed all subsequent inspections prior to the instant one. Respondent further argues that no access is allowed in the area when the crusher is operating. Rather, the cited area is only accessed during shut down for maintenance or repair, thus precluding access to the head pulley when equipment is moving. R. Br. at 2-3.

            During his October 20, 2009 inspection of the #7 conveyor belt, Poulson observed that the head pulley of the # 7 belt at the screen plant was not guarded on the side. Tr. 182; P. Ex. 12, pp. 1 and 4. Respondent admits that the cited pulley was not guarded (Tr. 411), but disputes that the cited pulley needed guarding. Tr. 358, 413. In this regard, Respondent first argued that the pulley did not require a guard because it was more than seven feet in the air. Tr. 358. The record establishes, however, that the walkway that accessed the pulley was eight feet above the ground. Tr. 359. The pulley itself was approximately one foot above that walkway. P-12, p. 1. As discussed previously, section 56.14107(b) states that guards are not required where the exposed moving parts “are at least seven feet away from walking or working surfaces.” 30 C.F.R. 56.14107(b). Because the pulley was within one foot of a walkway, guarding was required.

            Respondent also argues that guarding was not necessary because mine policy prohibited access while the plant was running. Tr. 360. The walkway that accesses the pulley, however, remained in place at all times. Tr. 411. Placing a ladder by the elevated walkway is all that was required for access. Tr. 412. In addition, the record confirms that there was considerable work to be done via the walkway. Miners use it to access the screens and the screen decks. Miners often repair holes in screens, or change screens depending upon the size of the product they are crushing. Tr. 185, 360. Miners also access the elevated walkway to ensure that the screen boxes have an oil lubricated bath, or to repair wires when a large rock is crushed. 186-87, 360-61.

            The unguarded pulley was “finned,” as opposed to smooth, and the finned nature of the pulley heightened the hazard because it could “grab” an exposed miner more easily than a smooth pulley. Tr. 184. Most likely one miner at a time would be exposed to the hazard. Tr. 187. The pulley had operated in the same unguarded condition at its previous Lewiston, Idaho location. Tr. 413-14. Respondent does not contend that it failed to run the unguarded pulley while the plant was operating. Tr. 412-413. Rather, the record establishes that the plant was running the day of the inspection, prior to MSHA’s arrival. Tr. 188-89.

            The unguarded pulley was located approximately 20 inches from the end of an elevated platform walkway (“walkway”). Tr. 185-87. Inspector Poulson testified that the chain in the photograph (P. Ex. 12, p. 4) was is present as fall protection from the elevated walkway and was not a substitute for a guard. Tr. 186. The proximity of the unguarded pulley to the walkway placed miners at risk of a slip, trip or fall entanglement injury that could be permanently disabling. Inspector Poulson determined that a miner was unlikely to be injured by the cited condition, however, because miners did not frequently access the walkway while the plant was operating. Tr. 189.

            Given the unlikely risk of injury, Inspector Poulson gave Respondent 24 hours to terminate the citation. Tr. 193; P-12, p.1. When Poulson returned the next day (October 21, 2009) to terminate the citation, the mine was preparing to move its location. Tr. 193. After confirming that the plant moved, Poulson terminated Citation 6483469 on October 22, 2009. Tr. 194.  

            Because the head pulley of the #7 belt on the screen plant was not guarded on the side, thereby creating a hazard that could cause a entanglement injury, I find that Respondent violated 30 C.F.R. § 56.14107(a). I find that the failure to guard the head pulley of the #7 belt was designated properly as non-S&S. I have no authority to modify the citation to S&S. See Mechanicsville Concrete, Inc., t/a Materials Delivery, 18 FMSHRC 877, 880 (June 1996). Even though the exposure was minimal, a permanently disabling entanglement hazard existed. Each time a miner accessed the walkway when the plant was running, he was exposed to the entanglement hazard.

            I reduce the negligence, however, from moderate to low. I credit Respondent’s testimony that employees were trained not to access the walkway when the plant was running. I further note that the cited area was chained off at the end of the walkway. I conclude that Respondent has not shown considerable mitigating circumstances sufficient to establish low negligence.  

            In sum, Citation 6475793 is affirmed, as modified, to reflect low negligence. Applying the penalty criteria set forth in section 110(i) and outlined above, I reduce the proposed penalty of $100.00 to $65.00.

                        b.        Citation 6483473

            Citation 6483473 alleges that Respondent violated 30 C.F.R. § 56.14107(a) by failing to guard the fan blade on the bulldozer. The cited standard is set forth above. The citation alleges the following condition or practice:  

The fan blade, v-belts and sheaves located on the engine of the CatD9H Dozer, SN 90V1009, are not properly guarded to protect persons from accidental contact with the moving machine parts. The fan is missing a section of guard on one side. The hazards are located inside the engine compartment and next to the tracks of the dozer. Persons are occasionally in the area exposing them to entanglement injuries.

The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an injury or illness that could reasonably be expected to result in a permanently disabling injury, and one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty of $100.00.

            Respondent argues that the dozer is equipped with a reversible fan and that access to the cited area is required to reverse the fan and make air flow through the radiator more effective during certain times of the year. Respondent further argues that the models of dozers equipped with a reversible fan did not have fan guards installed in the cited area in order to permit an operator to reverse the fan, as needed. Respondent also notes that the cited area is so far down in the engine compartment that the inspector’s pictures taken with a digital camera would not turn out. R. Br. at 2.

            On October 20, 2009, Inspector Poulson inspected the Cat D9H Bulldozer head pulley. Tr. 223; P. Ex. 16, p. 1. Respondent operated the secondary dozer in question during the production of gravel and Anti-Skid, because the primary dozer had been buried in a landslide. Tr. 224-25, 376-77. The guard on the fan blade on the engine was missing a pie-shaped piece, which exposed v-belts and sheaves. Tr. 227; P. Ex. 16, pp. 1 and 3.

            Although the Secretary claims that Respondent admitted that the fan blade on the dozer engine was missing a portion of the guard (citing Tr. 375, 429), Colby Blewett qualified his testimony by noting that the manufacturer makes a gap in the guarding so one can reverse the fan blades to turn the heater on. Tr. 375-76. Blewett explained that there is no cab in older dozers, so Caterpillar designed a “high-tech heater by simply reversing the fan blades that typically blew through the radiator to cool the engine off. . . .” Blewett further testified that the cited area was very difficult to get to, and one would have to pull other guarding off to lay down and reach in to reverse the blades. Tr. 375-429. 

            The portion of the fan blade which is unguarded is located inside the engine compartment and next to the tracks of the dozer. P. Ex. 1. A dozer operator occasionally would be exposed to an entanglement hazard as the miner entered or exited the dozer, or checked the engine while running, should the miner contact the moving v-belts and sheaves. Tr. 225-27; P. Ex. 16, p. 1. Moreover, a dozer operator who stumbled, fell or tripped over the three-inch lugs on the track, could stick his hands into the unguarded fan blade, and suffer a permanently disabling injury of the hand or fingers. Tr. 227. Inspector Poulson determined, however, that it would be unlikely for a miner to be injured because most of the guard was present. Tr. 226. Due to the unlikely risk of injury, Poulson terminated the citation on October 22, 2009, when the plant shut down and moved. P. Ex. 16, p. 2.

            I find that Respondent violated 30 C.F.R. § 56.14107(a) because a portion of the fan blade on the Cat D9H Bulldozer was not guarded, thereby creating a hazard that could cause an entanglement injury. An operator is strictly liable under the Mine Act for exposing a miner to the hazard notwithstanding any manufacturing design flaw. I further find that the failure to guard the dozer's fan blade was non-S&S. As Inspector Poulson recognized, the failure to adequately guard the fan blade was unlikely to cause an injury because most of the guard was present, but any injury would be reasonably likely to be permanently disabling. Tr. 226.   Thus, even though the exposure was minimal, a hazard with the potential of a reasonably serious and permanently disabling injury was present.

            Based on Colby Blewett’s testimony, however, I find that Respondent in good-faith believed that Caterpillar manufactured the dozer fan blade with a gap in the guarding so that one could reverse the fan blades to turn on the heater. Moreover, this dozer was an older model used on a secondary basis, and this violation apparently not been cited previously. In these circumstances, I conclude that Respondent has shown considerable mitigating circumstances and I reduce Respondent’s negligence from moderate to low.

            In sum, Citation 6475793 is affirmed, as modified, to reflect low negligence. Applying the penalty criteria set forth in section 110(i) and outlined above, I reduce the proposed penalty of $100.00 to $65.00.

                        c.         Citation 6483474

            Citation 6483474 alleges that Respondent violated 30 C.F.R. § 56.14100(b) by failing to maintain and correct the rear-facing flood lights on its dozer. The cited standard provides, “[d]efects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” The citation alleges the following condition or practice:

The Cat D9H Dozer, SN 90V1009, does not have rear facing flood lights. The lights have been removed and not replaced. The dozer operates on a daily basis at the feed end of the plant away from other equipment. This condition exposes the operator to injuries due to visibility issues in inclement weather when lighting is necessary.

            The violation is alleged to be non-S&S, with gravity alleged to be unlikely to result in an injury or illness that could reasonably be expected to result in lost work days or restricted duty, with one person affected. Negligence is alleged as moderate. The Secretary proposes a penalty of $100.00.  

            Respondent argues that its plant operated only during daylight hours and that any inclement weather sufficient to darken the sky would result in a complete shutdown of the small crusher operation due to safety concerns for crew members. R. Br. at 2.

            During Inspector Poulson's inspection of the dozer discussed above (see Citation 6483473), Poulson observed that the dozer lacked rear-facing floodlights. Tr. 223; P. Ex. 17, p. 1. Poulson testified that the wiring was still there, but the lights had been broken or were missing and had bot been replaced. Tr. 236. Poulson testified that because the dozer was initially manufactured with rear-facing floodlights, the lights constituted safety equipment that must be maintained under the cited standard. Tr. 235-36.

            Poulson further testified that Respondent's failure to correct this condition exposed the dozer operator, and any miners in the dozer's path, to a collision hazard, particularly during dusty, rainy, snowy or dark conditions when visibility was impaired. Tr.234, 237-38. Inspector Poulson recognized that any injury would be reasonably serious and anyone working at the mine site was exposed to the hazard in the event that the dozer was backing up and collided with a miner that the operator did not see, due to poor visibility. Tr. 238. He found it most likely that only one miner would be affected at a time, although he noted that the dozer operator was also exposed to the hazard. Tr. 238, 240. For example, if the dozer operator was backing up and could not see properly, he could hit something and receive a jarring injury. Tr. 240. He further concluded that the most likely injury would be lost workdays or restricted duty. Tr. 240. He designated the citation as non-S&S after essentially concluding that the failure to maintain rear-facing floodlights was unlikely to cause an injury because the dozer operator normally operated in daylight hours in decent weather away from other miners. Tr. 240.  

            Inspector Poulson attributed moderate negligence to Respondent. Tr. 240; P. Ex,. 17, p. 1. In this regard, he concluded that Respondent knew that the dozer lacked rear-facing floodlights. Tr. 430. As proffered mitigating circumstances, Respondent argued at the hearing that the mine did not operate at night or in inclement weather. Tr. 376, 380. I note, however, Respondent’s concession that depending on the size of the job, the mine sometimes operates two shifts, including one that starts before the sun comes up, and another that continues after the sun goes down. Tr. 391-92. Respondent also acknowledged that inclement weather, such as snow and rain, occurs in Idaho in early fall when the citation was written, and that weather changes can occur suddenly, during mid-shift . Tr. 430. In these circumstances, I find that the dozer needed rear lights for safety purposes in the context of Respondent’s normal and continued mining operations and that Respondent’s failure to maintain the rear-facing flood lights on its dozer in contravention of 30 C.F.R. § 56.14100(b) was the result of moderate negligence.  

            Accordingly, I affirm the citation as written and find that the Respondent’s failure to have rear-facing flood lights on the dozer was non-S&S and the result of Respondent's moderate negligence. Applying the penalty criteria set forth in section 110(i) and outlined above, I find that the proposed penalty of $100.00 is appropriate.

III. Motion To Approve Partial Settlement Agreements

            At the hearing, the parties made a joint motion on the record to settle all three citations at issue in Docket No. WEST 2011-261-M, i.e., Citation Nos. 8562410, 8562411, and 8562412 . See Tr. 13-14. The parties propose that Citation Nos. 8562410 and 8562412 be modified to reduce the level of negligence from “moderate” to “low;” and that Citation No. 8562411 be modified to reduce the injury or illness that could reasonably be expected to occur from “fatal” to “permanently disabling”, and to reduce the proposed penalty from $243.00 to $200.00.  

            At the hearing, the parties also made a joint motion to settle four of the eleven citations at issue in Docket No. WEST 2010-405, i.e., Citation Nos. 6483465, 6483466, 6483467, and 6483468. See Tr. 14-15. The parties agreed to reduce the proposed penalty in Citation No. 6483465 from $873.00 to $786.00; and to accept Citation Nos. 6483466, 6483467, and 6483468, as written.  

            After the hearing, pursuant to ongoing settlement negotiations, the parties moved for an Order approving settlement of four of the remaining seven citations in Docket No. WEST 2010-405, i.e., Citation Nos. 6483470, 6483471, 6483472, and 6483475. The parties proposed that Citation 6483470 be modified to reduce the level of negligence from “moderate” to “low;” to reduce the proposed penalty in Citation No. 6483471 from $392.00 to $372.00; to reduce the proposed penalty in Citation 6483472 from $117.00 to $105.00; and to accept Citation 6483475, as written. 

            Also after the hearing, the parties moved for an Order approving settlement of three of the five citations at issue in Docket No. WEST 2009-1213, i.e., Citation Nos. 6475789, 6475790, and 6475791. The parties proposed to reduce the proposed penalty in Citation 6475789 from $176.00 to $155.00; that Citation 6475790 be modified to reduce the level of negligence from “moderate” to “low,” and to reduce the proposed penalty from $176.00 to $130.00; and to reduce the proposed penalty in Citation 6475791 from $873.00 to $785.00.

            The parties stipulated that payment of the amended proposed penalties will not impair Respondent's ability to continue in business, that Respondent exhibited good faith in abating the cited violations, and that information pertaining to the operator's history of previous violations and size are contained in Exhibit A, which was filed by the Secretary along with the petition in the above-captioned proceedings.

            I have considered the representations and documentation submitted in this case, and I conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) of the Act.                   

III. ORDER

            WHEREFORE, the proposed settlement agreement is APPROVED and the citations shall be modified as set forth above. It is ORDERED that the operator pay a total penalty of $1,747.00 in four consecutive monthly installments of $436.00 each, and a forth and final payment of $439.00, with the first payment due within thirty days of the date of this decision and each subsequent payment due every thirty days thereafter until paid in full.

            In Docket No. WEST 2009-1213-M, Citation Nos. 6475792 and 6475793 are affirmed, as written, with assessed penalties of $585.00 and $176.00, respectively. In Docket No. WEST 2010-40-M, Citation Nos. 6475793 and 6475793 are modified to reduce the level of negligence from moderate to low and the proposed penalties are reduced in each citation from $100.00 to $65.00; and Citation No. 6483474 is affirmed, as written, with an assessed penalty of $100.00. Within thirty days of the date of this decision, Highland Enterprises, LLC is ORDERED to pay a civil penalty of $991.00 for those violations found herein.

            Upon payment of the penalties assessed herein or agreed to in the approved settlement agreements, this proceeding is DISMISSED.           

                                                                        Thomas P. McCarthy

                                                                        Administrative Law Judge

Distribution: (E-Mail and Certified Mail)

Emily B. Hays, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5708

Don Blewett, pro se, Highland Enterprises, LLC, PO Box 356, Grangeville, ID 83530