Office of Administrative Law Judges

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001

 

December 27, 2011

SECRETARY OF LABOR,    MINE SAFETY AND HEALTH     ADMINISTRATION (MSHA),    Petitioner   v.   LEHIGH SOUTHWEST CEMENT, Respondent

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CIVIL PENALTY PROCEEDING    Docket No. WEST 2009-244-M  A.C. No. 04-00196-168887         Mine: Tehachapi Plant

 

 

DECISION

 

Appearances:  D. Scott Horn, Conference and Litigation Representative, U.S. Department of Labor, Vacaville, California, for Petitioner;

           

Brian Bigley, Safety Director, Lehigh Southwest Cement Company, Tehachapi, California, for Respondent

 

Before:            Judge Paez

 

            This case is before me upon the Petition of the Secretary of Labor for Assessment of Civil Penalty pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”). 30 U.S.C. § 815 (2008).

 

I. Statement of the Case

 

            Respondent Lehigh Southwest Cement (“Lehigh”) contests the sole citation at issue in this case, Citation No. 6440444, for which the Secretary seeks a civil penalty of $12,248, for failure to provide certain training under 30 C.F.R. § 46.5(a). The Secretary filed her Petition for Assessment of Civil Penalty on March 13, 2009, and this case was assigned to me on January 4, 2010. On July 30, 2010, Lehigh filed a Request for Hearing and Prehearing Statement pursuant to my Prehearing Order. I held a conference call with the parties on September 29, 2010, to set this case for trial and issued a Notice of Hearing on October 25, 2010. The hearing in this matter took place on November 22, 2010, in Woodland Hills, California, where I admitted the parties’ documentary evidence, as well as the testimony of MSHA Inspector David Reynolds and Lehigh Safety Manager Brian Bigley. Lehigh filed its post-hearing brief on December 1, 2010. The Secretary filed her brief on March 8, 2011, pursuant to my Order granting the Secretary’s request for a longer briefing schedule. Lehigh filed its response on March 30, 2011.

 

II. Stipulations

 

            The parties agree to the following facts:

 

a.         The Administrative Law Judge and Federal Mine Safety and Health Review Commission have jurisdiction over this proceeding.

 

b.         Tehachapi Plant is a mine and is subject to the Federal Mine Safety and Health Act of 1977.

 

c.         At all times relevant to these proceedings, Lehigh Southwest Cement Company operated the Tehachapi Plant.

 

d.         David Reynolds was acting in his official capacity as an authorized representative of the Secretary of Labor when he issued citation number 6440444 and that said citation was served upon the [R]espondent.

 

e.         The violation was promptly abated.

 

f.         Payment of the proposed penalty will not affect the Respondent’s ability to continue in business.

 

g.         The Respondent’s mine size and the employment hours documented in Exhibit A of the Petition for Assessment[] are correct.

 

h.         The Respondent’s history of violations as documented in Exhibit A of the Petition for Assessment is correct.

 

(Sec’y Prehr’g Report 1–2. See Resp’t Prehr’g Report 1–2 (restating stipulated facts).)

 

III. Issues

 

            The Secretary argues that Lehigh violated 30 C.F.R. § 46.5(a) by failing to ensure that the construction workers rebuilding its mine’s fuel station were provided new miner training. (Sec’y Br. 3–4.) The Secretary further contends that Lehigh’s alleged violation was significant and substantial (“S&S”), as the improperly trained miners were exposed to significant mine hazards. (Id. at 9–10.) The Secretary asserts that Lehigh’s negligence was high because its safety manager knew the safety regulations yet allowed the contract construction workers to work at the mine without proper training. (Id. at 10–11.)

 

            Lehigh asserts that no violation occurred because these workers were not “miners,” thus not requiring new miner training. (Resp’t Br. 1–6; Resp’t Resp. 1–8.) Alternatively, Lehigh contends that the Secretary may not designate this alleged violation as S&S because it is not a mandatory safety standard. (Resp’t Br. 6–7; Resp’t Resp. 8.) Even if the S&S designation is applicable, Lehigh urges that the facts do not support that determination or the Secretary’s contention of high negligence. (Resp’t Br. 6–7; Resp’t Resp. 8–9.)

 

            Accordingly, the issues before me are as follows: (1) Whether the Secretary has established a violation of 30 C.F.R. § 46.5(a) by proving the workers constructing the new fueling station at Lehigh’s mine were “miners” under 30 C.F.R. § 46.2(g), thus requiring new miner training; (2) whether the record supports the gravity of the alleged violation; (3) whether the alleged violation was S&S; (4) whether the record supports Lehigh’s negligence with respect to the alleged violation; and (5) whether the proposed penalty is appropriate under section 110(i) of the Mine Act.

 

            For the reasons that follow, Citation No. 6440444 is affirmed.

 

IV. Background and Findings of Fact

 

A.        Tehachapi Plant Mine Operation

 

            Lehigh operates the Tehachapi Plant in Kern, California, which produces Portland cement. (Tr. 13:13–15; Sec’y Ex. A.) The mine runs twenty-four hours a day with most workers there between 7 a.m. and 3:30 p.m. (Tr. 79:7–18.) In 2008, Lehigh contracted with Valued Engineering to develop a new fuel station for its mine. (Tr. 24:5–6, 53:8–16.) The project involved the installation of aboveground fuel tanks to hold the gasoline and diesel used by the mine’s vehicles, as well as the removal of the station’s old underground fuel tanks. (Tr. 51:12–19, 53:4–16.) Although Valued Engineering was responsible for the entire project, it subcontracted with several other companies to carry out the project’s different phases. (Tr. 53:17–54:17.) Bagley Enterprises performed much of the project’s “backhoe work,” such as placing the concrete pads for the new fuel tanks and digging up the old tanks. (Id.) Valued Engineering used other specialty companies to complete the remaining portions of the project, such as installing new electrical fixtures. (Id.)

 

            The fuel station remained open throughout the duration of the construction project. (Tr. 77:17–22.) Lehigh used the underground fuel tanks until the new aboveground ones were ready. (Id.) To minimize any disruption to the project, Lehigh required its vehicles to refuel after-hours between 6 p.m. and 6 a.m. to avoid being at the fuel station while the construction workers were there. (Tr. 51:20–53:3, 79:19–21.) Additionally, Lehigh kept a fully loaded fuel truck away from the fuel station for emergencies. (Tr. 52:21–22.)

 

            The fuel station is located on an access road adjacent to the main mine road and entrance gate, which lie just north of the station. (Tr. 42:14–17, 83:15–22; Ex. D-1.) The mine employee parking lot is directly to the east of the fueling station and is separated from the station by a chain-link fence. (Tr. 48:21–49:6; Ex. D-1.) A large warehouse, known as the “Seymour Building,” lies further south along the fuel station access road, adjacent to the southwest corner of the fueling station. (Tr. 42:14–20, 48:2–3; Ex. D-1.) The Seymour Building houses the mine’s mobile-mechanic shop at its east end, which is the side closest to the fueling station. (Tr. 48:11–17.) The Seymour Building also contains welding operations, administrative offices, break rooms, bathrooms for the millwrights, and a parts disbursal area. (Id.) Additionally, Lehigh uses an area adjacent to the northeast corner of the Seymour Building to power-wash its vehicles. (Tr. 42:6–7, 69:11–18; Exs. D-1, D-10.) An asphalt road encircles the Seymour Building and provides an additional connection to the main mine road at the northwest corner of the building. (Ex. D-1.)

 

B.        MSHA’s Inspection

 

            Over a two-week period in August 2008, MSHA Inspector David Reynolds conducted a regular inspection of the Tehachapi Plant. (Tr. 14:13–22.) During that time, Reynolds observed approximately six workers performing various construction tasks at the fuel station construction site. (Tr. 13:20–24.) On the day Reynolds issued his citation, the workers were pouring concrete. (Tr. 13:20–24, 34:23–35:2.) Reynolds did not observe any experienced miners in the area and inspected Valued Engineering’s training records. (Tr. 14:3–5.) Through this inspection, as well as by speaking with Valued Engineering’s supervisor, Reynolds discovered that the workers at the site had received only site-specific training in July 2008. (Tr. 14:3–9, 15:7–14.) Valued Engineering’s supervisor further advised that they had been at the project site for approximately three months. (Tr. 37:13–17.) Inspector Reynolds also spoke with Lehigh Safety Manager Brian Bigley. Bigley advised that he had provided site-specific training to the workers but that he had determined that comprehensive training was unnecessary. (Tr. 15:15–20, 21:19–22:4.) At the hearing, Bigley confirmed that he provided everyone who worked at the site with site-specific training when they came to start work on the project (Tr. 56:5–9) but not comprehensive training because he did believe that the workers met the regulatory definition of a “miner” (Tr. 58:6–60:21).

 

            Based on his determination that the workers at the fuel station had not received adequate training, Inspector Reynolds issued a withdrawal order under section 104(g)(1) of the Mine Act requiring the workers to leave the job site. (Ex. P-1.) Additionally, Reynolds issued the citation at issue in this matter, No. 6440444, charging a violation of 30 C.F.R. § 46.5(a) for failing to provide comprehensive new miner training to the workers. (Tr. 16:16–17:9.)

 

            The citation narrative states the following:

 

The Company was aware that the contractor, Valued Engineering, did not have their Part 46 training as required, and allowed them to work at the mine site. The Company gave the contractor site specific hazard training, when they started work in July, 2008. This condition creates a hazard to the contractor, and to others.

 

(Ex. P-1.)

 

            Based on the workers’ close proximity to large mobile equipment in use at the mine site, particularly at the nearby Seymour Building’s mobile equipment shop, Reynolds determined that the alleged violation created a reasonably likely risk of fatal injury to one miner. (Tr. 17:12–20:18.) Reynolds determined that such equipment could fatally crush an improperly trained miner. (Tr. 19:14–17.) In addition to hazards associated with the mobile equipment in use at the mine, Inspector Reynolds also asserted that the construction workers were exposed to electrical hazards through their work at the fuel station project. (Tr. 38:18–21.) Noting that this alleged violation involved the reasonable likelihood of fatal injury, Reynolds charged it as S&S. (Tr. 20:2–8.)

 

V. Principles of Law

 

A.        Regulatory Interpretation

 

            The Commission has prescribed the following guidance for interpreting the Secretary’s regulations:

 

Where the language of a regulatory provision is clear, the terms of that provision must be enforced as they are written unless the regulator clearly intended the words to have a different meaning or unless a meaning would lead to absurd results. See Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989). If, however, a standard is ambiguous, courts have deferred to the Secretary’s reasonable interpretation of the regulation. See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1990); accord Sec’y of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C. Cir. 1990) (“agency’s interpretation of its own regulation is of ‘controlling wight unless it is plainly erroneous or inconsistent with the regulation.’”) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). The Secretary’s interpretation of her regulations is reasonable where it is “logically consistent with the language of the regulation[s] and . . . serves a permissible regulatory function.” General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citations omitted).

 

Lodestar Energy, Inc., 24 FMSHRC 689, 692 (July 2002).

 

            The statutory provision underlying the regulation, as well as any related statements accompanying the regulation’s publication in the Federal Register, may illuminate the regulation’s meaning. Lodestar Energy, 24 FMSHRC at 693. An individual provision of the Secretary’s regulations should comport with the other sections of the regulations so as “to effectuate the Mine Act’s goal of promoting the safety and health of miners.” Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) (citing Emery Mining, 744 F.2d at 1414).

 

B.        Significant and Substantial

 

            An S&S violation is one “of such nature as could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is S&S “if, based on 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). To establish an S&S violation, 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.

 

Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted). See also Buck Creek Coal, Inc. v. FMSHRC, 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 should be made assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).

 

VI. Further Findings of Fact, Analysis, and Conclusions of Law

 

A.        Fact of Violation

 

            1.         Regulatory Analysis 

 

            Here, the Secretary alleges that Lehigh failed to provide new miner training to the fuel station workers in accordance with the following regulatory provision:

 

Except as provided in paragraphs (f) and (g) of this section, you must provide each new miner with no less than 24 hours of training as prescribed by paragraphs (b), (c), and (d). Miners who have not yet received the full 24 hours of new miner training must work where an experienced miner can observe that the new miner is performing his or her work in a safe and healthful manner.

 

30 C.F.R. § 46.5(a) (emphasis added).

 

            A new miner is “a person who is beginning employment as a miner with a production-operator or independent contractor and who is not an experienced miner.” 30 C.F.R. § 46.2(i) (emphasis added). For the purposes of this case, Lehigh does not assert that the construction workers referenced by the citation were experienced miners, thereby not requiring new miner training. Rather, Lehigh asserts that the workers were not “miners” at all. Accordingly, the determination of a violation in this case hinges on whether the workers were miners.

 

            A miner is:

 

(1)(i) Any person, including any operator or supervisor, who works at a mine and who is engaged in mining operations. This definition includes independent contractors and employees of independent contractors who are engaged in mining operations; and

(ii) Any construction worker who is exposed to hazards of mining operations.

(2) The definition of “miner” does not include scientific workers; delivery workers; customers (including commercial over-the-road truck drivers); vendors; or visitors. This definition also does not include maintenance or service workers who do not work at a mine site for frequent or extended periods.

 

30 C.F.R. § 46.2(g) (emphasis added).

 

            A person’s status as a miner turns on whether he or she is engaged in, or exposed to the hazards of, “mining operations.” For the purposes of the Secretary’s training regulations, mining operations involve “mine development, drilling, blasting, extraction, milling, crushing, screening, or sizing of minerals at a mine; maintenance and repair of mining equipment; and associated haulage of materials within the mine from these activities.” 30 C.F.R. § 46.2(h).

 

            Here, the evidence establishes that the workers cited by Reynolds were involved in building the Tehachapi Plant’s new fuel station, making them “construction workers” under any definition of the term. The question, then, is whether they were “exposed to hazards of mining operations.” The word “exposed” is ambiguous, as it raises questions about the degree and duration of contact with mining operation hazards necessary to fall under the ambit of the regulatory provision.

 

            The Secretary defines which construction workers may be considered “miners” as follows:

 

[C]onstruction workers, because of the nature of their work, are not typically engaged in mining operations . . . . However, construction workers who are at an active mine site will be exposed to significant hazards of mining. Construction workers are also typically at the mine site for extended periods because of the nature of their work, unlike many other employees of independent contractors. For these reasons, the final rule now provides that construction workers who are exposed to hazards of mining operations are considered “miners” under the final rule. This means that construction workers who work in an active mine site are considered “miners” and must receive comprehensive training (i.e., new miner training or newly hired experienced miner training, as appropriate). Construction workers who are not “miners” must receive site-specific hazard awareness training under § 46.11(b).

 

Training and Retraining of Miners Engaged in Shell Dredging or Employed at Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or Surface Limestone Mines, 64 Fed. Reg. 53,080, 53,095 (Sept. 30, 1999) (emphasis added).

 

            Thus, according to the Secretary, any construction worker who works at an active mine site is a “miner.” Construction workers at an inactive mine site may not necessarily be classified as “miners.” As noted by the Secretary, this definition reflects the fact that construction workers typically work at a mine site for an extended period of time and are typically exposed to hazards of mining. Indeed, construction workers at an active mine site work in the general environment as workers engaged in mining operations and thus are exposed to the same set of hazards. The Secretary’s regulation ensures that all of these workers receive the same comprehensive safety training, effectuating the Mine Act’s purpose of protecting miners. Importantly, the Secretary’s interpretation also unambiguously notifies mine operators of their obligations toward training construction workers. I conclude that the Secretary’s interpretation of the scope of her regulation is reasonable.

 

            2.         Application of Regulation to Facts

 

            The evidence demonstrates that Lehigh allowed its contractor’s workers to be at the fuel station without having received comprehensive miner training. Inspector Reynolds discovered that Lehigh provided only site-specific training in July 2008, and Lehigh Safety Director Bigley confirmed that he provided only site-specific training to the workers upon commencement of the project prior to Reynolds’s inspection. Additionally, the regulation does permit miners who have not completed their new miner training to work where an experienced miner can observe the new miner performing work in a safe and healthful manner. 30 C.F.R. § 46.5(a). Here, however, Inspector Reynolds presented uncontroverted testimony that no experienced miner was present while the workers were at the mine site.

 

            Most importantly, the Tehachapi Plant is an active mine operation that runs twenty-four hours per day, thus requiring these construction workers to have new miner training. The evidence bears out the conclusion that the workers at the fuel station project were exposed to the hazards of mining operations. Several types of vehicles specific to Lehigh’s operation operated at Tehachapi Plant in the vicinity of the fuel station project. Lehigh used a small dual-axle water truck, as well as an eighty-five-ton haulage truck that had been converted into a water truck. (Tr. 18:5–9.) The mine used eighty-five-ton trucks for haulage, too, as well as bulldozers, loaders, street sweepers, and service trucks. (Tr. 18:10–19:4.) Not only was the construction site located at the mine’s only fuel station, it also was near the Seymour Building’s mobile-mechanic shop and power-washer area, two other major destinations for these vehicles. (Tr. 17:23–18:2, 42:5–7.) Indeed, at the time of the alleged violation, Reynolds observed a water truck, loader, and street sweeper on the road heading to, and around by, the maintenance shop in the same vicinity of the fuel station project. (Tr. 25:20–26:3.) These vehicles traveled near the construction site in connection with the haulage and maintenance of mine equipment, two examples of the types of activities qualifying as “mining operations” under 30 C.F.R. § 46.2(h). Inspector Reynolds accurately characterized these hazards as mining hazards. (Tr. 43:11–13.)

 

            In addition to hazards posed by mine vehicles, the kiln and tower, associated with the Tehachapi Plant’s concrete processing activities, were located west-southwest from the fuel station off of the main mine road. (Tr. 56:22–24, 57:12–25, 71:10–22; Exs. D-1, D-6.) Lehigh Safety Director Bigley acknowledged that these areas could be hazardous and covered them in Lehigh’s site-specific training regimen. (Tr. 56:10–24.) Although these buildings were located farther from the mine site than the Seymour Building and Lehigh instructed the fuel station workers not to go there, they were still not physically closed off to the workers. (Tr. 56:22–57:3.) Indeed, Bigley acknowledged that at the plant it is “easy . . . to find yourself in a spot you may not be familiar with.” (Tr. 57:2–3.)

 

            Nevertheless, Lehigh contends that the workers at the fuel station project were not exposed to the hazards of its mining operation. (Resp’t Br. 5–6; Resp’t Resp. 6–7.) In addition to presenting uncontroverted testimony that it had directed its vehicles not to travel by the fuel station during daytime hours while the construction workers were at the site, Lehigh presented evidence that it had erected a temporary seven-foot fence around three sides of the fuel station. (Tr. 48:21–49:4.) The fence separating the employee parking lot from the fuel station bound the eastern side of the fuel station site. (Tr. 49:5–6.) Another side of the fence ran on the south side of the site from the employee parking lot to across the access road. (Tr. 49:7–9.) The third side of the fence ran across the north side of the fuel station to prevent vehicles on the main road from entering the site. (Tr. 49:20–23.) The western side of the fuel station was not fenced, and it opened up to a large flat area through which the workers could access the Seymour Building, the main mine road, as well as the rest of the Tehachapi Plant. (Tr. 72:16–18; Ex. D-1.)

 

            Additionally, Lehigh told the workers not to go outside of the work site. (Tr. 56:24–25.) Lehigh provided portable outdoor toilets and sun canopies at the site to encourage workers not to go into the Seymour Building. (Tr. 49:13–16.) At the hearing, Lehigh Safety Manager Bigley suggested that the workers could go to their cars for breaks. (Tr. 50:20–21.) According to Lehigh, these measures isolated the fuel station workers from the mine hazards present at the Tehachapi Plant. (Resp’t Br. 5–6; Resp’t Resp. 6–7.)

 

            Nonetheless, the fence was easily penetrable. The workers had a key to the fence to allow their work vehicles into the site. (Tr. 49:24–50:1.) Indeed, Inspector Reynolds observed that the workers had their own vehicles, as well as their own cement trucks, in the area. (Tr. 44:21–45:2.) Moreover, workers could easily walk through the grassy area next to the open side of the work site and access the rest of the mine. (Ex. D-1.) The fence’s permeability most likely underlies Inspector Reynolds’s lack of recollection of any other fence besides the mine’s main gate and the fence at the employee parking lot (Tr. 82:21–83:22), not a lack of credibility as Lehigh contends (Resp’t Resp. 7). Finally, the fuel station’s construction took place during the summer months at a mine sited in a barren, southern California desert. (Exs. D-1–D-14.) I do not find that Lehigh’s provision of portable toilets and sun canopies, as well as its reliance on the workers’ ability to access their personal vehicles, sufficient to give the workers no “reason whatsoever” to access the Seymour Building’s break areas for shade, cool water, or first aid. (Tr. 50:19–20.) The application of a safety standard involving a miner’s behavior should account for the “vagaries of human conduct” and “ordinary human carelessness.” Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). In light of these considerations, I conclude that the workers at the fuel station were exposed to mine hazards at the Tehachapi Plant. See Oil-Dri Prod. Co., 32 FMSHRC 1761, 1771–75 (Nov. 2010) (ALJ) (concluding that construction workers installing siding on building at mine site were exposed to mine hazards of mine operations and required 30 C.F.R. part 46 (“part 46”) new miner training).

 

            Notwithstanding these considerations, Lehigh asserts that the Secretary has not met her burden of proof in demonstrating a violation in this case. (Resp’t Br. 5–6; Resp’t Resp. 6.) Specifically, Lehigh points to Safety Director Bigley’s testimony that work at the fuel station was performed by many different groups of workers who were present at the site only a few days at a time. (Tr. 59:3–5; Resp’t Br. 5–6; Resp’t Resp. 6.) According to Bigley, the workers present when Inspector Reynolds issued the citation were scheduled to be at the work site for three days. (Tr. 55:3–7.) Furthermore, Inspector Reynolds could not determine whether the workers he observed during his two-week inspection were the same ones he saw when he inspected the fuel station. (Tr. 27:6–21.) Lehigh concludes that the workers were not exposed to mine hazards or present at the mine site long enough for them to be miners under the regulations. (Resp’t Br. 5–6; Resp’t Resp. 6.) 

 

            In spite of Lehigh’s suggestions to the contrary, the regulatory language does not require construction workers to be present at an active mine site for a minimum number of days to be adequately exposed to mine hazards and considered “miners.” The Secretary has plainly stated that construction workers at an active work site are considered “miners,” and they require new miner training. See discussion supra Part VI.A.1.

 

            Moreover, Bigley’s own testimony undermines the credibility of his assertion that these workers were present at the site for only a few days at a time. Bigley trained the fuel station workers in July 2008, several weeks before the citation’s issuance in August. Different subcontractors undoubtedly carried out various aspects of the project, but the bulk of the work at the site, and that observed by Reynolds when he issued the citation in this case, was the backhoe work of removing the old fuel tanks and installing the new ones. Valued Engineering used one subcontractor for this work—Bagley Enterprises. To abate the violation, Bigley worked with Valued Engineering and Bagley Enterprises to develop a new miner training program. (Tr. 55:21–56:4.)

 

            In a similar effort to confuse the issue, Lehigh asserts that “the concept of ‘frequent or extended periods’ of work” supports its proposition that the fuel site workers were not miners. (Resp’t Br. 3–4; Resp’t Resp. 4.) Here, Lehigh relies on the regulatory provision exempting certain categories of workers as miners: “The definition of ‘miner’ does not include scientific workers; delivery workers; customers (including commercial over-the-road truck drivers); vendors; or visitors. This definition also does not include maintenance or service workers who do not work at a mine site for frequent or extended periods.” 30 C.F.R. § 46.2(g)(2) (emphasis added). Lehigh also points to the regulatory provision listing the categories of workers who require site-specific training: 

 

            You must provide site-specific hazard awareness training, as appropriate, to any person who is not a miner as defined by § 46.2 of this part but is present at a mine site; including:

            (1) Office or staff personnel;

            (2) Scientific workers;

            (3) Delivery workers;

            (4) Customers, including commercial over-the-road truck drivers;

            (5) Construction workers or employees of independent contractors who are not miners under § 46.2 of this part;

            (6) Maintenance or service workers who do not work at the mine for frequent or extended periods; and

            (7) Vendors or visitors.

 

30 C.F.R. § 46.11(b) (emphasis added).

 

            A plain reading of these sections demonstrates that Lehigh’s arguments are meritless. Here, the phrase “frequent or extended periods” is used to distinguish which maintenance or service workers must receive comprehensive training or site-specific training; thus, maintenance or service workers who work at a mine for frequent or extended periods of time must receive comprehensive training. 30 C.F.R. §§ 46.2(g), 46.2(i), 46.5(a), 46.11(b). The phrase “frequent or extended period” does not appear by any other classification of worker under the Secretary’s training regulations. Although a construction worker must be exposed to hazards of mine operations to be a “miner,” the lodestar of this analysis is whether the worker is at an active mine site, not whether he or she is at the mine for “frequent or extended periods.”

 

            The Secretary’s interpretation serves the purposes of the Mine Act. By the nature of their position at a mine, construction workers typically work for longer periods of time and are exposed to a greater variety of mine hazards, as opposed to maintenance or service workers, such as delivery people or truck repairmen, whose contact with the mine is inherently transient and serves much narrower purposes. As illustrated in this case, although some of the workers may have been at the mine for only a few days at a time as Lehigh contends, a fatal mine accident involving a partially-trained miner engaged in construction can occur at a moment’s notice.

  

            Based on the foregoing, I determine that the fuel station construction workers were “miners.” Because these workers did not receive new miner training, were not “experienced miners,” and were not working in view of an experienced miner, I conclude that Lehigh violated 30 C.F.R. § 46.5(a).

 

B.        Gravity and S&S

 

            1.         Gravity

 

            The Secretary asserts that Lehigh’s violation created the reasonably likely risk of fatal injuries and charged it as S&S. In support of her argument, the Secretary relies on the fuel station workers’ proximity to the heavy mobile equipment in use at the Tehachapi Plant. (Sec’y Br. 9–10.) According to the Secretary, an untrained miner could experience a fatal crushing injury caused by one of these vehicles, a concern underscored by the recent death of a miner who was hit by a truck at the Tehachapi Plant. (Id. at 10.) In addition to these hazards, further evidence included the possibility of electrical hazards at the fuel station, as well as hazards posed by the Tehachapi Plant’s kiln and tower.

 

            The purpose of comprehensive miner training is to educate miners about the panoply of risks posed by working at a mine site, including mobile equipment hazards. See 30 C.F.R. § 46.5(b) (setting forth the requirements of new miner training). A partially-trained miner could easily find himself or herself in a dangerous situation involving a mine vehicle and suffer fatal injuries. Indeed, the Mine Act requires that if an inspector discovers a miner who has not received the safety training directed by the Act, the inspector must issue an order “declaring such miner to be a hazard to himself and to others, and requiring that such miner be immediately withdrawn from the mine . . . until such miner has received the training required by . . . [the] Act.” 30 U.S.C. 814(g)(1).

 

            At the hearing, Lehigh Safety Manager Bigley acknowledged that the Tehachapi Plant had various, significant hazards and conveyed that information to the fuel station workers during their site-specific training:

 

We talk about the kiln and how hazardous that is and special procedures for entering the kiln and tower area. Although these guys were banned from all those areas, we still talked about them so they get a sense of . . . the uniqueness of a cement plant and how easy it is to find yourself in a spot you may not be familiar with . . . . [W]e had kind of impressed on them “Don’t go anywhere else because it’s a big cement plant, and things could happen. So stay here in your area and don’t wander off.”

 

(Tr. 56:22–57:11.)

 

            Besides this information, Bigley’s training covered first aid procedures, evacuation plans, and reporting emergencies and hazards (Tr. 56:10–20, 76:9–22.) At the same time, Bigley revealed that a substantial basis underlying his conclusion not to offer new miner training to the workers stemmed from his assumption that they had related experience in construction, exposing them to large vehicles, as well as a provision in Lehigh’s contract with Valued Engineering stating that the workers had all required training. (Tr. 59:21–60:11, 78:6–14.) Altogether, Bigley’s testimony reveals that Lehigh provided a superficial introduction to the Tehachapi Plant’s hazards, at best.

 

            As I concluded above, the fuel station workers were exposed to the Tehachapi Plant’s mine hazards, particularly mobile equipment moving about the mine site. The fuel station workers were located adjacent to the Seymour Building, closest to the side where Lehigh repaired and power-washed its mobile equipment. Although this equipment may not have driven through the fuel station while the workers were there, it certainly operated proximate to the fuel station, as evidenced by Inspector Reynolds’s observations of such vehicles during his inspection. Moreover, the Secretary presented uncontested evidence that a person recently died after being struck by a truck at the Tehachapi Plant, underscoring the real possibility of a severe accident. (Tr. 19:22–20:1.) The Mine Act presumes that an improperly trained miner is a hazard to himself and others, and these workers required new miner training to educate them about avoiding the risks at the plant. Lehigh’s efforts to “kind of impress on” these workers about the dangers at the plant were inadequate, and assuming continued mining operations, I conclude that Lehigh’s violation was associated with a reasonably likely risk of fatal injuries to one miner.

 

            2.         S&S

 

            As for whether this violation was S&S, Lehigh disputes the Secretary’s legal authority to cite any violation of 30 C.F.R. § 46.5(a) as S&S based on the Administrative Law Judge’s decision in Carmeuse Lime and Stone, Inc., 29 FMSHRC 815 (Sept. 2007) (ALJ). (Resp’t Br. 6–7; Resp’t Resp. 8–9.) In Carmeuse Lime and Stone, the Administrative Law Judge determined that a training violation of a regulation under 30 C.F.R. part 48 could not be S&S because it was not a mandatory training standard, thus failing the first element of Mathies. 29 FMSHRC at 820–21.

 

            The Mine Act “does not authorize [the Secretary] to designate as ‘significant and substantial’ a violation of a regulation . . . that is not a mandatory health or safety standard.” Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999). To be a mandatory health or safety standard, it must be issued pursuant to section 101 of the Mine Act, which sets forth the procedures for promulgating mandatory health and safety standards. Id. at 43 n.2 (citing 30 U.S.C. § 811). Here, the part 46 training regulations were indeed issued under section 101 of the Mine Act. Training and Retraining of Miners Engaged in Shell Dredging or Employed at Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or Surface Limestone Mines, 64 Fed. Reg. at 53,130. Therefore, the part 46 training regulations are mandatory safety standards. I conclude that the Secretary is correct in her assertions that this violation may be designated as S&S. (Sec’y Br. 4–9.)

 

            Applying the four elements of the Mathies test for S&S, I conclude that the Secretary has established the first element by demonstrating the violation of a mandatory safety standard. Lehigh’s failure to provide new miner training created the hazard of a partially-trained miner, who, as recognized by the Mine Act and shown by the facts of this case, is a danger to himself and others, thus establishing the second element of Mathies. Finally, the violation created the reasonably likely risk of fatal injury, satisfying the final two elements of Mathies. Accordingly, I conclude that this violation was S&S.

 

C.        Negligence

 

The Secretary argues that because Lehigh Safety Director Bigley had a background in mine safety and training and because he knew that the workers at the fuel station did not have new miner training, Lehigh’s negligence was “high.” (Sec’y Br. 10–11.) As stated above, Bigley admitted that he did not provide new miner training to the workers at the fuel station site. As for Bigley’s qualifications, the following exchange took place concerning Bigley’s familiarity with the Secretary’s safety training regulations:

 

Q.        And your experience with the Part 46 training, and providing training, and things of that nature, could you describe that in general terms, please[?]

A.        Apparently, I was doing Part 46 training before there was a Part 46. Back in [sic] early ‘90s, I obtained a part 48 training card for surface mines.

            And even when I wasn’t in the mining industry, I still occasionally worked as a freelance contractor teaching occasional mine safety classes in either the Midwest or in Arizona for folks who were going to be going on mine properties who needed a refresher or additional training.

Q.        Suffice it to say, you feel very comfortable in the requirements of Part 46; would that be true?

A.        I believe so, yes.

 

(Tr. 46:25–47:14 (emphasis added).) Additionally, Bigley authored Lehigh’s post-trial brief and response, which are replete with legal citations purporting to support Lehigh’s position on the Secretary’s training regulations. Based on the record before me, I conclude that Lehigh’s negligence should be measured against the standard of care of a safety expert specializing in the Secretary’s training regulations.

 

            Here, Lehigh provided site-specific training to the construction workers, which covers many of the same subjects, albeit in less detail, as new miner training. Compare 30 C.F.R. § 46.5(b) (setting forth requirements of new miner training) with § 46.11(d) (setting forth requirements of site-specific training). Lehigh also took some measures to reduce, though not eliminate, the workers’ exposure to mine hazards. Nevertheless, as noted above, the Secretary clearly stated her position concerning a construction worker’s status as a miner when he or she is present at an active mine site, such as a Lehigh’s. A safety expert specializing in the Secretary’s training regulations, particularly one familiar with legal authorities such as the Federal Register, would have been familiar with the Secretary’s position on a construction worker’s status as a miner and complied accordingly. Therefore, I affirm the Secretary’s determination that Lehigh engaged in high negligence in committing this violation.

 

D.        Civil Penalty

 

            Under section 110(i) of the Mine Act, the Administrative Law Judge must consider six criteria in assessing a civil penalty: the operator’s history of previous violations, the appropriateness of the penalty relative to the size of the operator’s business, the operator’s negligence, the penalty’s effect on the operator’s ability to continue in business, the violation’s gravity, and the demonstrated good faith of the operator in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i).

 

            The parties stipulated that Lehigh promptly abated its violation, and the evidence shows that Lehigh’s demonstrated good faith in attempting to achieve rapid compliance after receiving the Secretary’s citation. Additionally, the parties stipulated that the proposed penalty assessment of $12,248 would not affect Lehigh’s ability to remain in business. They have also stipulated that Lehigh’s history of violations, as shown in Exhibit A, is correct. Exhibit A, however, reveals only the number of history points associated with this violation. I note the Secretary did not provide the Assessed Violation History Report detailing the specific violations underlying the effect of Lehigh’s history of violations on her proposed penalty assessment under 30 C.F.R. part 100. Nevertheless, based on the parties’ stipulation, Lehigh’s history of violations is reflected in my penalty determination. Finally, I have determined that Lehigh engaged in high negligence in committing an S&S violation that created the reasonably likely risk of fatal injury to one miner. Based on all of these considerations, I conclude that the Secretary’s proposed penalty of $12,248 is appropriate.

 

VII. Order

 

            In light of the foregoing, Citation No. 6440444 is hereby AFFIRMED. Lehigh is ORDERED to pay a civil penalty of $12,248 within 40 days of this decision.

 

 

 

                                                                                    /s/ Alan G. Paez

                                                                                    Alan G. Paez

                                                                                    Administrative Law Judge

 

Distribution:

 

Brian Bigley, Safety Director, Lehigh Southwest Cement Company, 13573 Tehachapi Boulevard, Tehachapi, CA 93561

 

D. Scott Horn, Conference and Litigation Representative, U.S. Department of Labor, MSHA, 2060 Peabody Road, Suite 610, Vacaville, CA 95687

 

/jts