FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5266/FAX 303-844-5268

November 3, 2011

DECISION

Appearances:              Hillary Smith, CLR, Mine Safety and Health Administration, Denver, Colorado, for the Petitioner.

Luis Pacheco, Safety Director for Omya, Superior, Arizona, for the Respondent.

Before:                        Judge Miller

            This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Omya Arizona Inc., pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The case involves three violations with a total proposed penalty of $300.00. The citations were issued by MSHA under section 104(a) of the Mine Act at the Omya Arizona mine near Superior, Arizona. The parties presented testimony and documentary evidence at the hearing held on October 7, 2011 in Denver, Colorado.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

            Omya Arizona, (hereinafter “Omya”) a division of Omya Inc., operates a mine near Superior, Arizona. The mine agrees that it is a mine operator as defined by the Act, and is subject to the jurisdiction of the Mine Safety and Health Administration. (Tr. 8); Stip. 1 and 2. The mine operates a quarry and crusher that grinds rock that is used primarily as filler for pharmaceutical materials. (Tr. 20). In August 2010, MSHA inspector Blaine MacKay conducted a general safety inspection of the Omya operation. As a result of the inspection, the three violations contested herein were issued. At hearing, the Secretary and the mine operator agreed to resolve two of the citations. The settlement agreement is incorporated below. Following the testimony and presentation of evidence, a decision was issued on the record. That decision is incorporated herein.

            Citation No. 6587605 was issued by Inspector MacKay on August 12, 2010. MacKay has 25 years mining experience, has been an inspector for four years, and is an electrical specialist for MSHA. MacKay worked for more than 25 years as an electrician in the mines, both underground and surface. He worked as an electrical supervisor and trainer, and he has received journeyman electrical training. The citation issued by inspector MacKay described the violation, in part, as follows: “The operator failed to properly maintain the 480 VAC principal power circuit in a safe condition in that the switch was not labeled to show which unit it controlled.” The standard cited by MacKay, 30 C.F.R. § 56.12018, provides that “[p]rincipal power switches shall be labeled to show which units they control, unless identification can be made readily by location.” MacKay determined that an injury was unlikely to occur, that one employee was affected, and that the negligence was moderate. A civil penalty in the amount of $100.00 has been proposed for this violation.

            MacKay testified that, while inspecting the crusher building at Omya, he observed a switch located on the exterior wall between the man-access door and the large roll-up door that opened into the crusher area. The switch described by MacKay was not labeled or otherwise identified as the disconnect switch for the high speed roll-up door. The disconnect switch is shown in Sec’y Ex. 3, a photo that also details the number of conduits and switches on the same wall as the disconnect switch. When MacKay viewed the wall, he could not readily determine which conduits connected to this particular disconnect switch, and it was not evident to him what the switch controlled. The switch was not labeled and MacKay believed that, without proper identification, the disconnecting of the correct equipment might be delayed. MacKay explained that a principal power switch isolates the power from the equipment and this particular disconnect switch did just that. He further explained that the subject area is accessed on an as needed basis to enter the upper level of the crusher building. The door that is controlled by the switch is a large one that is raised so that trucks or loaders may access the crusher to dump material. The disconnect switch was energized at the time of the inspection.

            The operator agreed that the switch cited was a principal power switch and that it was not labeled. However, the operator argues that the switch could be identified by its location. Keith Harvey, who was the maintenance mechanic at the time of the citation, testified that he was aware that the disconnect switch was used for the roll-up door and he explained as much to MacKay. Harvey had assisted in the installation of the door and does periodic maintenance and repair on the door, along with one other employee. According to Harvey, the switch to the high speed roll-up door is the only disconnect on the wall, and he believes it is identifiable by its location for that reason. He has been a maintenance mechanic for 35 years and he uses the disconnect switch when he does periodic maintenance on the door. Only he and the other maintenance mechanic have any reason to use the disconnect and neither of them has had any difficulty identifying and using the switch. The nearest motor is 25-30 feet away, and so the roll up door is the only switch-controlled item in the immediate area.

            The photo at Sec’y Ex. 3, photo 4, identifies the location of the roll-up door in relation to the area surrounding it. It is obvious that the door is out in the open and available for use by any person, not just the employees who maintain the switch. In fact, the switch must be accessible in order to immediately operate the door in case of emergency. There are 13 employees at the mine who could access the switch, as well as the contract truck drivers who are frequently on the property. The truck drivers, as well as the loader operators, occasionally access the door, but as the mine explained, the door is used primarily by four of the employees at the mine when filling the crusher.

            While there is some dispute as to how readily Harvey was able to identify the switch when asked by MacKay, it is important to note that MacKay, an experienced electrician, was not able to identify the disconnect switch based upon its location on the exterior wall. MacKay testified that he could not trace the conduit, no equipment fed directly into it, and he could not tell what the switch controlled by looking at it. (Tr. 26-27). Therefore, even if Harvey did readily identify the switch as the disconnect for the roll-up door to MacKay when questioned, it is not apparent to others what the switch controls. As MacKay explained, there were several pieces of equipment and switches on the wall, and there existed enough questions as to what the switch controlled that it required a label. The disconnect switch is used primarily to de-energize the door in an emergency, and would be used not only by those who conduct maintenance on the door and are familiar with the switch, but by others, as well. Therefore, I agree with MacKay and find that identification of the switch could not be made readily by location. Further, I credit MacKay’s testimony and find that the primary power switch was not labeled. Consequently, a violation has been shown.

            Although MacKay testified that a delay in disconnecting the switch, due to the inability to locate it, would expose miners to shock, burn and mechanical entanglement type injuries, he did not mark the violation as significant and substantial. He believed an injury to be unlikely, but if one did occur, it would be serious. He also determined that the negligence was moderate. MacKay understood that the disconnect switch had been in the same location for a period of time and had not been labeled. He gathered that the mine had a good faith belief that it did not have to be labeled, and marked the violation as moderate negligence. No evidence has been presented to the contrary and I, therefore, affirm MacKay’s finding of moderate negligence.

II. PENALTY

            The principles governing the authority of Commission administrative law judges to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission and its judges the authority to assess all civil penalties provided in [the] Act. 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. The Act requires that, in assessing civil monetary penalties, the Commission ALJ shall consider the six statutory penalty criteria:

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

30 U.S.C. § 820(i).

            I accept the stipulation of the parties that the penalties proposed are appropriate to this operator’s size and ability to continue in business and that the violation was abated in good faith. The history shows the past violations at this mine to be minimal. (Tr. 9-11). Omya is a small operator and the violation was a result of moderate negligence. In light of the foregoing, I assess the $100.00 penalty proposed by the Secretary for this violation. Omya has agreed to pay the remaining two violations as issued and I find those penalties, each of $100.00, to be appropriate. (Tr. 6-7).

III. ORDER

            Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C.§ 820(i), I assess the proposed penalty of $100.00 for the violation heard, and an additional $200.00 for the violations that have been admitted. Omya Arizona, Inc., is hereby ORDERED to pay the Secretary of Labor the sum of $300.00 within 30 days of the date of this decision.

                                                                                    /s/

                                                                                    Margaret A. Miller

                                                                                    Administrative Law Judge

Distribution: (Certified U.S. First Class Mail)

Hillary Smith, CLR, U.S. Department of Labor, MSHA, P.O. Box 25367, M/NM

Denver, CO 80225-0367

Luis Pacheco, Safety Compliance Manager, Omya Arizona, P.O. Box 188

6 N. Mesquite Rd., Superior, AZ 85273