FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, D.C.
20004-1710
(202) 434-9900/TEL.
(202) 434-9949/FAX
December 5, 2012
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SECRETARY OF LABOR, HILLS MATERIALS COMPANY, |
: : : : : : : : : : |
CIVIL PENALTY PROCEEDING
Docket No. CENT 2011-398-M A.C. No. 000242693 Mine ID: 3901554 Mine P.Q. 3144 |
DECISION
Appearances: Timothy Turner, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, CO, on behalf of the Petitioner;
Randy Chappell, Hills Materials Company, Rapid City, SD, on behalf of the Respondent.
Before: Judge
Tureck
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 Hills Materials Company (“Respondent”), pursuant to Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (“Mine Act”). The Secretary proposes assessing penalties against Respondent totaling $324 for two alleged violations of mandatory safety standards at Respondent’s mine, a Fast Track plant which was being set up at the Hot Springs quarry.[1] The Secretary contends that the violation set out in Citation 6427347 was significant and substantial and involved high negligence. Citation 6427348 alleges that Respondent acted with moderate negligence. Respondent challenges both the occurrence of the violations and the severity of the assessed penalties.
A formal hearing was held in Rapid City, South Dakota, on May 11, 2012. At the hearing, Secretary’s Exhibits 1-7, Respondent’s Exhibits 1-7, and Joint Exhibit 1 were admitted into evidence,[2] and each party provided testamentary evidence. On May 1, the Secretary’s Motion to Amend Citation No. 6427348 To Allege, In the Alternative, Violations of 30 C.F.R. 56.12030 and/or 30 C.F.R. 56.12032, was filed. That motion sought to amend Citation No. 6427348 to plead a violation of 30 C.F.R. § 56.12032 in the alternative. Without objection, that motion was granted. Tr. 7-8. Both parties then filed post-hearing briefs, the last of which was received on July 19.
Findings of Fact and Conclusions of Law
At the hearing, the parties stipulated that: Respondent was the operator of the Mine; the mine at which the citations were issued is a mine as defined in the Federal Mine Safety and Health Act of 1977; Respondent is engaged in mining operations that affect interstate commerce; Respondent is subject to the jurisdiction of the Mine Act, 30 U.S.C. §§ 801 et seq; the Federal Mine Safety and Health Review Commission and the ALJ have subject matter and personal jurisdiction over this case; the citations at issue were issued on the date indicated in section one of the citations; the inspector who issued the citations was acting in his official capacity and as an authorized representative of the United States Department of Labor; the proposed penalties will not affect Respondent’s ability to continue in business; and that Respondent demonstrated good faith in abating the violations. JX 1, 1-2.
Respondent owns a portable Fast Pack plant that was operating at the Hot Springs quarry in Hot Springs, South Dakota. Tr. 25. There are usually five people working at this plant, but as many as ten might be working when the plant is being set up. Tr. 92, 100. The Fast Pack plant is a series of conveyors, crushers, springs and control vans that can be transported between quarries. Tr. 24. The plant is large in size, covering an area of 300 by 500 feet, and takes days to transport. Tr. 92. The Hot Springs quarry usually is inspected twice per year by MSHA Tr. 32.
On November 2, 2010, Inspector Alan Roberts visited the Hot Springs quarry for a routine inspection of the Respondent. Tr. 29-30. Roberts has been a MSHA Mine Inspector for approximately nine years. Tr. 22. Prior to working at MSHA, Roberts worked at an underground salt mine, performing all duties including serving as superintendent. Tr. 23-24.
On or before October 29, 2010, Hills Materials sent in a Notification of Commencement pursuant to 30 C.F.R. § 56.1000[3] to inform the MSHA Rapid City Field Office that it intended to move its operations from Maverick Junction to Hot Springs. GX 7; Tr. 27-28. Roberts’s field notes confirm MSHA’s reception of the commencement notice, indicating that the Rapid City field office had received the notification on October 29, 2010. Tr. 27. Roberts testified that the purpose of the Notice of Commencement was to inform MSHA that the operation was moving, so that MSHA could conduct inspections more efficiently. Tr. 28; GX 7.
When Roberts arrived at the Hot Springs quarry, he attempted to contact Respondent’s foreman, Cliff Drury, but was unsuccessful. Tr. 30. So initially, Roberts proceeded to perform his inspection of the plant unaccompanied by an employee of the Respondent, though at a later point Drury joined him. Tr. 30, 32. Roberts observed that the Fast Track plant was not operating. Tr. 30. Rather, Roberts said that while he saw mine activity, including “guys moving around here and there and doing maintenance and so forth,” he opined that the plant “wasn’t running.” Id.
Roberts testified that he believed the plant was in “setup mode.” Tr. 30. He explained that in setup mode, “different crushers and screens and conveyors … have to be set up in a certain order … they have to be lined up where the product will go from one conveyor to the next and the electrical has to be hooked up[.]” Tr. 30-31. Roberts then explained that a mine being in setup mode did not affect his inspection, stating that the “hours miners work[ed] in setup mode are reported as mine hours. We have a lot of accidents during setup and tear down. I personally believe it’s a very important time to inspect.” Tr. 31. In explaining the difference between setup mode and temporary closure, Roberts stated that at times of temporary closure, there was no mine activity. Id. Mine activity, while “not production … not producing rock[,]” according to Roberts, includes setup mode. Id.
At 10:50 in the morning, Roberts and Drury came upon Respondent’s onsite water trailer. Tr. 34. The water trailer housed a water tank, a boiler, a fuel tank, and some tools. Id. It was used to “heat the water for [Respondent’s] dust control system in cold weather.” Id. In Roberts’s estimation, employees’ use of the trailer depended on how windy the site was, and could be anywhere from a daily basis to once every few days. Tr. 35. Asked what items mine employees might bring in and out of the trailer, Roberts responded that he “observed hand tools on the floor in there. They would have to pull a hose in there to fill their water tank. They would have to carry and pull a fuel nozzle and hose to fill the fuel. And, then, they need tools that might be stored in there.” Id.
When the mine was operating, miners would access the trailer by a 45-inch high set of stairs. GX 2. At the time of the inspection, the stairway had a single handrail installed. Facing the trailer from outside, the single handrail was on the left side of the stairway. The door to the trailer opened outward, from the left side. Accordingly, the door handle was on the left. Tr. 38, 43. The stairway was supposed to have a handrail on the right side as well, but according to Drury, while the stairway was being put in place it was discovered that the second handrail was missing. Tr. 94. It turned out that the second handrail had been left behind in Spearfish, South Dakota, where the trailer was last used. Tr. 37.
Roberts opined that “if someone would slip and fall, there’s nothing that would tell us which direction they would fall. And a handrail would stop their fall off the side of the stairs.” Tr. 37. Roberts determined that the absence of the right handrail on the stairs leading up to the trailer door constituted a violation of. §56.11002, which states: “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.” Therefore, he issued Citation 6427347.
Roberts determined that this violation of §56.11002 was reasonably likely to cause injury; would result in lost workdays or restricted duty; and that the violation resulted from moderate negligence. Tr 38, 44. He based these determinations on the height of the steps; and that the condition had existed for “a couple days[.]” Tr. 42.
Later in the morning, Roberts was inspecting the electrical panels for the Fast Pack conveyor. Tr. 45. When Roberts arrived at the conveyor, he observed that there “was a lot of activity.” Tr. 46. On one of the electrical panels, he noticed that a strain relief bushing was missing from a half-inch hole in one of the panels. Tr. 48. Roberts stated that the control panel was not tagged or locked out. Tr. 54. Upon closer inspection, Roberts stated that the hole could allow a buildup of moisture, dust, and insects over time, which could create a risk of an arc flare or fire. Tr. 55-58. However, Roberts also stated that the power coming to the box was “locked out at its source.” Id. That meant that “where the power [left] the generator, the switch was turned off and a lock was placed on it so no one could energize any of the mine equipment.” Tr. 54-55.
During trial, Respondent called Doug Anderson as a witness. Tr. 113. Anderson is employed by Respondent as a journeyman electrician, and has been for over 16 years. Tr. 113-14. Anderson testified that the main energy source for the equipment was locked out. Tr. 116. Moreover, the power cable from the main energy source “wasn’t even plugged in.” Id. Anderson then testified that Respondent had an established protocol for setting up the electrical system. Tr. 116-17.[4] In essence, the protocol requires a “double-check” of the electrical system. See, e.g., Tr. 119. When he was questioned about the electrical box in contention, Anderson testified that at the moment Roberts walked up, Respondent had not yet begun testing the grounding continuity on the particular panel. Id. In fact, Anderson stated that Respondent was still performing general repairs prior to any final testing. Tr. 120 Also, visual inspection would be performed prior to energizing the equipment. Id. Furthermore, Anderson testified that he did not believe dust or moisture would be a problem, as the operation of the equipment had not yet begun. Tr. 125. Lastly, Anderson testified that the system ground resistance check had not yet taken place. Tr. 126. A ground resistance check is undertaken to ensure that metal parts of the equipment are not energized. Tr. 127. Such checks are mandatory. Tr. 128. Evidence submitted demonstrated that at the time of the inspection, Respondent was still in the process of completing other grounding tests. Tr. 128-29.
Roberts determined that Respondent had violated §56.12030 which states: “When a potentially dangerous condition is found it shall be corrected before equipment or wiring is energized.” In the alternative, Secretary now pleads a violation of §56.12032, stating: “Inspection and cover plates on electrical equipment and junction boxes shall be kept in place at all times except during testing or repairs.” Roberts determined that the injury was non S&S, and that injury was unlikely to occur because electricity was off. Roberts designated the level of injury as fatal and affecting one miner. Finally, he determined that the negligence level was “moderate” because Respondent failed to detect the alleged violation on a pre-shift inspection. GX 4.
Jurisdiction Of MSHA to Inspect Mines While Moving or Mobilizing.
At issue is whether the Fast Pack plant was operating as a “mine” for the purposes of the Mine Act. Section 3(h)(1) of the Mine Act defines the term “mine.” 30 U.S.C. § 892(h)(1). For purposes of this case, the relevant part of the definition defines a mine as “structures, facilities, equipment, machines, tools, or other property … used in, or to be used in, the milling of … minerals.” Emphasis added. The Commission, as well as the courts, have held that the term “mine” must be interpreted broadly to effectuate the intent of the Mine Act. See, e.g. Cyprus Industrial Minerals Co. v. FMSHRC, 664 F.2d 1116, 1118 (9th Cir. 1981). The Mine Act's use of the language “used in, or to be used in, the milling of … minerals” indicates that, for jurisdictional purposes, a “mine” includes not only facilities presently being used to mill minerals, but also facilities where mineral milling will be taking place in the future. 30 U.S.C. § 802(h)(1). Federal Courts of Appeals decisions confirm this interpretation referencing, with general approval, the interpretation of “to be used” to mean “contemplated use.” Lancashire Coal Co. v. Sec'y of Labor, 968 F.2d 388, 390 (3rd Cir. 1992). Another federal court held that activities conducted at a site in preparation for future mining may bring the site within the Mine Act's definition of “mine” for the same reason. Cyprus Industrial Minerals Co. at 1117-18. Note, however, that neither of these cases dealt with the issue of a mine in the process of setting up or which had filed a notification of commencement pursuant to §56.1000, which is the situation we have in this case.
Section 56.1000 provides the process by which a mine is legally “closed.” It provides:
The owner, operator, or person in charge on any metal and nonmetal mine shall notify the nearest Mine Safety and Health Administration and Metal and Nonmetal Mine Safety and Health District Office before starting operations, of the approximate or actual date operation will commence. The notification shall include the mine name, location, the company name, mailing address, person in charge, and whether the operations will be continuous or intermittent.
When a mine is closed, the person in charge shall notify the nearest district office as provided above and indicate whether the closure is temporary or permanent.
Thus, Respondent contends that a mine that is “closed” according to this provision would be removed from the applicability of the Mine Act. Respondent concludes that because it had filed a Notice of Commencement, it was removed from MSHA jurisdiction and the citations should consequently be dropped.
The Secretary argues that Respondent’s setup activity was
part of the normal mining cycle. Essentially, the Secretary argues that all
activities, “even prior to the actual commencement of mining” fall under the
Jurisdiction of MSHA because “the Act is intended to prevent injuries and
illnesses and that such protection logically applies whether employees are
setting up equipment or engaged in production.” PBR 13 (citation omitted). In
her brief, the Secretary cites three ALJ decisions to support her position. First,
in Khani Co., Inc., 32 FMSHRC 1339 (ALJ,
Sept. 2010), the ALJ upheld a citation of a crusher that was being readied to
commence mining, but did not mine for two weeks after the inspection. Khani, 32 FMSHRC at 1342. The Judge held
that it is “undeniable that the hazards associated with those activities are
present whether they occur during the mine's set-up for operations to commence
or during the actual process of mineral removal for its sale.” Id. at 1343. Second, the Secretary
proffers Royal Cement, 31 FMSHRC 1459, 1462 (ALJ, Dec. 2009), which
held that a plant that had been closed for three years but which was undergoing
repairs was a mine under the Mine Act because the repairs were being made in
preparation for production to resume. Last, the Secretary cites The Pit,
16 FMSHRC 2008, 2009-10 (ALJ, Sept. 1994), which held that “equipment … located
at a site where mining will take place, and will be used in the extraction of
minerals, or the milling of minerals, is subject to MSHA jurisdiction - even if
mining has not commenced.”
Respondent contends that the Mine
was not subject to MSHA’s jurisdiction during the November 2, 2010 inspection. RBR
5. Respondent argues that the mine was temporarily closed and had not yet
“commenced operations.” Id. at 6. It
contends that the Notice of Commencement
filed with MSHA on October 29, 2010 pursuant to 30 C.F.R. § 56.1000 confirms
that the mine was closed and was not going to reopen until November 3, the day
after the MSHA inspection was conducted.
In support of its position, Respondent cites Hansen Materials Co., 26 FMSHRC 293, 297, 2004 WL 787222, 4 (ALJ,
Mar. 9, 2004). In Hansen, the Judge
held that during times when equipment would not be operated, Hansen could
notify MSHA pursuant to 30 C.F.R. § 56.1000 that its operations would
temporarily be shut down for a period of time, and then mine would not be
subject to inspections from MSHA for this period. This brief recitation of the
salient facts shows why Hansen
provides no support for Respondent’s position.
For in Hansen, the mine was
shut down; no activity was taking place and there was no potential for injury
to miners. Here, activity by miners was
ongoing, even though the plant was not yet operational, and the potential for
injury to miners existed.
I hold that MSHA had jurisdiction to inspect Respondent’s mine. As stated above, the Federal Courts and the Commission have long held that the term “mine” must be interpreted broadly to effectuate the intent of the Mine Act. Cyprus Industrial Minerals Co., supra, at 390; Lancashire Coal Co., supra, at 390. Respondent’s activities cannot be construed as anything but setting up its plant to be used in mining, and thus its activities on November 2, 2010 were well within MSHA’s jurisdiction. Although the plant may not have been milling material at the time of the inspection, it was going to start operating the next day. Further, injuries to miners can occur while a mine is being set up as they do while the mine is in operation, and the purpose of the Mine Act is to prevent injuries to miners. Ruling that MSHA does not have jurisdiction over mines which are being set up prior to the mining that is going to take place would read the phrase “or to be used” out of the definition of “mine”. Respondent has failed to establish that filing a Notice of Commencement would revoke MSHA’s authority to regulate a mine that is being readied for operation.
Citation 6427347
The Secretary alleges that respondent violated 30 C.F.R. §56.11002, which states:
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.
The citation states that this standard was violated because a
45 inch stairway with five steps and a single handrail going up to the water trailer
door exposed miners to a fall hazard due to the fact that there was “no
handrail on the west side of the stairway to the Water Trailer.” GX 2. The citation goes on to state that the
mine operated in wet weather conditions and that miners could have tools in
their hands while accessing the trailer. Id.
In order to prove that Respondent violated this standard, the Secretary must show by a preponderance of the evidence that Respondent failed to comply with §56.11002’s requirement that “stairways shall be of substantial construction provided with handrails.” See, e.g., Keystone Coal Mining Corp., 17 FMSHRC 1819, 1838 (1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (1989)). There is no dispute that the right side handrail was missing at the time of Roberts’s inspection. At issue is whether the evidence demonstrates that the stairway violated the standard.
The stairway went from the ground to the water trailer door. Facing the trailer, the stairway had a handrail only on the left side. To access the trailer, the door is opened by a knob on the left which swings outward toward the right side of the stairway, with the hinges of the door on the right. A miner climbing up the right side of the stairway would be hit by the door when opening it to enter the trailer. So it is highly unlikely that someone would use a handrail on the right side of the stairway. The only purpose a handrail on the right side of the stairway could serve would be to prevent someone from slipping off the stairway on the right side. Inspector Roberts opined that this created a dangerous hazard because such a fall could occur.
The Secretary argues that this was a violation of the standard. She argues that “the safety design of the stairway required two handrails.” PBR 17.
Respondent refutes this citation on two grounds. First, Respondent argues that it provided a handrail, which satisfies §56.11002. RBR 3. Second, Respondent argues that the mine was in set-up mode and that the trailer was not in use at the time of the inspection. RBR 3-4.
In regard to Respondent’s first argument, one handrail was provided, and under the circumstances the likelihood of a miner getting hurt because the right handrail was missing is negligible. It must be kept in mind that the entire stairway was only 45 inches high. A miner would probably walk up only three steps – certainly no more than four – before opening the door to the trailer. Since the door to the trailer had to be opened from the left side, it is highly unlikely that a miner would walk up the right side of the stairway for three or four steps, then cross over to the left side to open the door. Roberts was asked at trial:
Q. [Since] the door opens from left to right . . . would anyone actually walk up those steps holding onto a handrailing on the right? Wouldn’t that be completely nonsensical?
A. Yes I agree.
…
Q. So logically, you wouldn’t expect anybody to hold onto a handrail on the right side when they’re walking up those couple of steps … am I right?
A. If the door was shut.
Tr. 82-83. Later, he stated: “the door was shut that day.” Tr. 84. The only use a right side handrail would have on this stairway would be to prevent a miner from slipping on the stairs and falling off on the right side. Due to the short length of the stairway and that anyone going in or out of the trailer would be walking on the side with the handrail, it is highly unlikely that the lack of a second handrail would lead to an injury.
But the likeliness or unlikeliness of an injury does not effect whether a regulation has been violated. That is a separate issue. The Secretary is entitled to deference in interpreting her regulations, and §56.11002 does say “handrails”, not “handrail”. Since the Secretary interprets §56.11002 to require handrails on both sides of a stairway regardless of the circumstances, and her interpretation is reasonable, then Respondent has not complied with that section of the regulations.
But regardless of whether a second handrail is required by §56.11002, another factor precludes its absence from being a violation in this case. As was noted above, the plant was in the process of being set up on November 2, 2010. The evidence establishes that the trailer was not going to be used for a day or two (Tr. 69, 109), and there was no reason for anyone to enter it. Respondent planned on installing the right side handrail as soon as it was brought back from Spearfish, where it had been left inadvertently when the trailer was moved to its new location.
It is clear that the Mine Act is intended to apply to mines that are in the process of being constructed or set up but are not yet in operation, as the definition of “mine” includes structures and equipment “to be used” in mining. This makes perfect sense. For the potential for injury exists when a mine is in the process of being set up as it does when mining operations are ongoing. For example, if the water trailer stored equipment which was being used in setting up the plant, and therefore miners would be using the stairway, it would pose the same hazard as when the trailer is being used once the mine is operational. But a mine operator cannot be expected to have all of its equipment ready to pass an MSHA inspection while it is in the process of setting up the mine and before it is in use. The operator must be given a chance to set up its equipment and check it for compliance with the safety standards at the time it is ready to be used. The purpose of the Mine Act is to prevent injuries to miners, and surely no miner will be injured by equipment which is not yet going to be used. The stairway to the trailer was in the process of being set up prior to being used. It would serve no purpose to find a violation under such a circumstance.[5]
Accordingly, I hold that MSHA had jurisdiction over activities at the site where the Fast Track plant was being set up, and the failure to have a second handrail installed on the stairway to the water trailer was insufficient to meet the requirements of §56.11002. Nevertheless, that the plant was in the process of being set up, the water trailer was not yet in use, and no one would have been using the stairway at the time of the inspection precludes the lack of a second handrail from being a violation of the regulation. Citation 6427347 is therefore vacated.
Citation 6427348
In Citation 6427348, the Secretary alleges that respondent violated §56.12030, which states that: “When a potentially dangerous condition is found it shall be corrected before equipment or wiring is energized.” In the alternative, theSecretary pleads that Respondent violated §56.12032, which states: “Inspection and cover plates on electrical equipment and junction boxes shall be kept in place at all times except during testing or repairs.”
The evidence leaves no doubt that a violation of §56.12030 could not have occurred, since the control panel in which Roberts found an unplugged hole had not been energized. This explains why the Secretary amended the citation to alternately plead a violation of §56.12032. The Secretary argues that §56.12032 was violated because Roberts found an unplugged hole on the side of an electrical box that caused the “electrical conductors to be exposed to dusty, wet conditions that would expose miners to an electrical shock hazard.” GX 4; Tr. 46.
There is no conflict in the testimony on this issue. At the time of the inspection, the process of setting up the electrical equipment was ongoing, and testing and inspection of the control panel had not yet taken place. Further, not only was the electrical power source locked out, but the control panel was not even plugged in to the power source. Roberts agreed that there was no imminent danger of harm, rather only a “root cause … over time if this was left to continue based on continued mining operation, over time [debris] could build up.” Tr. 50. Roberts stated that he “asked the foreman and the electrician what went through that hole, and neither one of them can answer immediately, which [told him] that the hole had existed for some period of time.” Tr. 55. This was pure speculation by Roberts. Roberts also believed that if he “would not have noticed it [the unplugged hole] it would have been left, left alone until something could accumulate and create the hazard.” Tr. 55. But Roberts had no basis for his belief that the unplugged hole would not be discovered, especially since Respondent was still in the process of setting up the equipment and performing necessary repairs prior to energizing it.
For the same reason I gave for concluding that Citation 6427347 must be vacated, I conclude that the Secretary has failed to prove that Respondent violated §56.12032. Safety standards have to be applied with common sense. In the case of electrical equipment, while the equipment is being set up, it is inevitable, as it is when repairs to electrical equipment are being made, that there will be exposed wires, junction boxes and other things which could be hazardous if they are connected to a power source. That is a particular problem in mobile equipment, for as Anderson testified, “things get jarred around when they’re moving.” TR 117. I see no substantial difference between “testing and repairs”, which are explicitly exempt from the requirements of §56.12032, and setting up the electrical machinery in a mine or plant. In this case, until all the equipment was set up, the Respondent had the opportunity to inspect the equipment, and the power was ready to be turned on, it was nonsensical to find a violation of §56.12032.
Thus, this citation must also be vacated.
ORDER
IT IS ORDERED that Citations 6427347 and 6427348 are VACATED, the proposed penalties are DENIED, and this case is DISMISSED.
/s/ Jeffrey Tureck
Jeffrey Tureck
Administrative
Law Judge
Distribution:
Timothy Turner, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202
Randy Chappell, Hills Materials Company, 3975 Sturgis Road, Rapid City, SD 57702
Elizabeth B. Ames, Esq., Oldcastle Materials Law Group, 900 Ashwood Parkway, Suite 700, Atlanta, GA 30338
[1] It is unclear from the record whether Respondent has any ownership interest in the quarry. But whether it does is immaterial to this decision.
[2] Citations to the record of this proceeding will be abbreviated as follows: GX – Government’s Exhibit; RX – Respondent’s Exhibit; JX – Joint Exhibit; Tr. - Hearing Transcript; PBR – Petitioner’s Brief; RBR – Respondent’s Brief.
[3] All of the regulations cited in this decision are contained in Title 30 of the Code of Federal regulations.
[4] Anderson explained:
What we do first is, basically, Cliff and the boys, they set the conveyors, and we’ll help pull the cables, get them into place. There’s an added conveyors [sic], we’ve got to splice them, you know, because they’re not long enough. And, then, once they get everything in their position, we go and do a ground check, which enables us to, we go from the main grounding bus to each one of these conveyors [sic] will have a box like that on it, and we go open that box up, go inside, get on that ground bus, and we go from the main to that grounding bus, and then we go from that grounding bus on that conveyor to, there’s a hydraulic motor and a stacker motor on that conveyor. So, basically, we get in there twice. You know, we all do the main, from the bus, we go to all the conveyors, and then we go back and go into the conveyor box again, and then do the conveyors individually, if you understand what I’m saying?
… A main bus is where you put all your ground wires…
… And you go from there to there and make sure you have good continuity. And then you go from that grounding bus in that box to, you have a hydraulic motor, you go from there, and then also you have a conveyor motor, you have to go from there. So, and what we do is go from the main and do all the conveyors first, one guy goes around, you have, like, a thousand foot of lead wires, and you go to the conveyors first. And, then, after you get done with that, you move your spool to each conveyor so you can do each conveyor individually.
… And when you’re in there, you kind of do a visual check and make sure all your wires are tight and your communication cables are in there. If there’s [sic] any loose connectors or just do a visual to make sure that everything is, you know, because things get jarred around when they’re moving. And I do a visual, and that’s why we do it the way we do it because I’m in it one time, and the other electrician is in it the other time.
Tr. 116-17.
[5] In her brief, the Secretary cites page 102 of the transcript to support a finding that Drury “allowed the miners to continue to access the water trailer to retrieve tools and work on the boiler and water tank.” Nothing on that page of the transcript is remotely consistent with this representation. In fact, there is no evidence anywhere in the record to support a finding that the trailer had been in use at the Hot Springs site at the time of the MSHA inspection.