FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE N.W., SUITE 9500

WASHINGTON, D.C. 20001

(202) 577-6809

January 28, 2011

    DECISION

Appearances: Tina D. Juarez, Esq., Office of the Solicitor, Dallas, Texas for Petitioner;

Christopher G. Peterson, Esq., Jackson Kelly, Denver, Colorado

Before: Judge Moran

             On April 21, 2009 miner Edelberto Avitia was pulled into a return roller of the grizzly conveyor at Respondent Mainline Rock and Ballast’s Torrance Quarry (“Mainline”). Mr. Avitia received significant injuries and was evacuated via helicopter from the mine to a hospital. He was fortunate to have survived the event. Subsequently, the Mine Safety and Health Administration (“MSHA”) conducted an investigation of the incident, resulting in these civil penalty proceedings brought 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”).

            MSHA alleges two violations arising out of this event.

            First, it contends that the Respondent violated 30 C.F.R. § 56.14107(a). That section, entitled, “Moving machine parts,” provides that:

Moving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that can cause injury.

            Second, MSHA contends that Mainline violated 30 C.F.R. § 50.10. That section, entitled, “Immediate notification,” provides that:

The [ mine] operator shall immediately contact MSHA at once without delay and within 15 minutes at the toll-free number, 1-800-746-1553, once the operator knows or should know that an accident has occurred involving: (a) A death of an individual at the mine; (b) An injury of an individual at the mine which has a reasonable potential to cause death; (c) An entrapment of an individual at the mine which has a reasonable potential to cause death; or (d) Any other accident.

            For the reasons which follow, although the Court does not find that this incident occurred in the manner contended by MSHA, it still affirms both violations and increases the penalty for the notification violation.

I. Findings of Fact and Conclusions of Law

A. Failure to guard moving machine parts; the alleged violation of 30 C.F.R. § 56.14107(a)

            Miner Edelberto Avitia (“Avitia”) was working as a loader man at Mainline’s Torrance Quarry, a position he had held for about two or three years. Tr. 34. His duties were varied but, as pertinent here, they included shoveling accumulations of dirt from around the grizzly conveyor. In fact, the parties do not dispute that Avitia’s duties included cleaning up such accumulations around the area of the jaw crusher and the grizzly conveyor.

            In order to fully appreciate the circumstances of this accident, one needs to have the following exhibits for viewing along with this written description: Gov. Ex P 4, and Respondents Exhibits R 11 and R 7. Exhibit P 4, a photograph, shows the grizzly conveyor with Plant Superintendent Mike Harris standing in front of the approximate location of the return roller in which Avitia got caught. In the photograph, three guards are behind Mr. Harris; there is long, “rectangular” guard immediately behind him and he is standing approximately in the middle of that guard. To the left of that guard is what appears, at least in P 4, as a “square” shaped guard which is much shorter than the rectangular guard. R 11 shows a different perspective of that “square” guard. That is the view of the square guard if the person in R 6 were to walk towards the square guard and then go behind it. Thus, one sees that the “square” guard is actually a box shaped guard surrounding the tail pulley.

            Although Mr. Avitia testified that he became caught in the pulley at a location some distance to the right of the individual in P 4 and that this occurred while he was shoveling accumulated dirt under the conveyor at that point, the Court finds that is not the way the accident occurred. On the basis of the preponderance of the reliable testimony, the Court finds that Avitia became ensnared in the return roller which, as noted, is right behind Mr. Harris, in P 4. Further, this accident did not occur through Mr. Avitia shoveling dirt accumulations from beneath the conveyor at the location where Mr. Harris is standing. Avitia maintained that he was digging while on his knees, shoveling as far as he could reach under the conveyor, but asserting that he was outside the conveyor frame, just as Mr. Harris is shown to be outside the conveyor in P 4. Avitia stated that only his hands and arms were extended under the conveyor and consequently he was reaching under the conveyor but only up to his shoulders. Thus, by Avitia’s recounting he would have been kneeling at some location outside the I beam framework, just as Mr. Harris is shown to be outside that framework.

            However, the Court finds that is not what occurred. Instead, Mr. Avitia went underneath the metal support frame and was thus under the conveyor belt when the accident occurred. This action on his part was prompted by a rock or some sort of material having become lodged between the belt and the conveyor I beam frame. R 5, though it has some acknowledged errors in its depiction of the conveyor at the location of the injury, is still useful to understanding the location and point where Mr. Avitia became caught. In any event, while under the conveyor at that location, and while trying to free a lodged piece of rock or other material, Mr. Avitia’s shovel got caught between the belt and the return roller and, in an instant, that action caused Mr. Avitia to become drawn into it before he could release his grip on the shovel. In fact, while there was some disagreement about the exact location where Avitia started his digging work, there is no conflict about where he ultimately became lodged, as he agreed that the conveyor belt was over his back and the roller was against his stomach. Thus, the bold black arrow in the bottom drawing of R 5 shows the point where Avitia became lodged.

            Although Jeremiah Carpio was next called as a witness, the Court concludes that his testimony was not valuable to the determination of the facts in this case.

            Plant Superintendent Mike Harris, whom the Court found to be a credible and forthright witness, stated that Mr. Avitia’s duties as an ‘oiler’ are to grease, oil, and do clean-up work and maintenance. Tr. 237. Avitia’s clean-up duty includes spills, places on the rock crusher where dirt will accumulate. In general, Harris described this as shoveling, “keeping the plant side clean.” Tr. 238. Spills, he agreed, can include rocks. Tr. 238. Mr. Harris also agreed that an oiler would need to use a shovel to dig out spills. An oiler would use a shovel to clean up accumulations that are under a conveyor. Tr. 241. It is important, Harris agreed, to keep the plant cleaned up as, if piles were allowed to build up, and get under the belt, “pretty quick [the] plant would be buried” and the belts would stop running. Tr. 241-242.

            When Harris first arrived at the accident scene Mr. Avitia had been freed and was on the ground. Tr. 247. Harris stated that when he asked Avitia what happened, he responded : “I [messed up] guero.” Tr. 256. Harris later restated that Avitia admitted to him that he was trying to free a rock stuck against a belt. Tr. 406-407. The Court accepts Harris’ position that access to the return roller where Avitia was caught would only occur through a deliberate act such as to dislodge a rock. Tr. 366.

            Apart from whether Mr. Avitia exercised poor judgment, photographs 5 and 6, within Ex P 8, are an attempt made by the Respondent to show where Mr. Avitia’s body was caught within the small space between the roller and the belt. Tr. 278. Harris, who is the person in those photos, positioned himself to show how Avitia was pinned between the roller and a piece of angle iron, described as a “cross member.” Tr. 279-280. A clearer depiction of the same recreation of the point where Avitia became trapped by the roller is R-7, which is an enlargement of the same area shown in photos 5 and 6 within P 8.

            Harris agreed that the roller where Avitia was caught had no expanded metal guard on it. Tr. 294, 297. The Court finds that the return roller in issue did not have a guard. Ex P 9, shows, but not very clearly, photos of the expanded metal guard that was placed around the return roller after the event. Tr. 296, 364. Harris described the installed guard as “pretty much a standard return roll guard.” Tr. 297. That guard, as installed for abatement, was about 51 inches in length and 3 to 4 inches tall and it covered the 5 inch roller. Tr. 298-299. However, Harris maintained that the same accident could occur, even with the guard that was placed over the roller to abate the citation. Tr. 299. This, the Court finds, was a bit of an overstatement. Harris stated that some contact could still occur as one could still touch the bottom of the front of the roller but he conceded that the expanded metal guard would prevent contact in the area it covers. Tr. 427-428. If one were caught in the remaining unguarded gap, it was Harris’ position that the expanded metal would “tear up” the person caught worse than if no guard was present. Tr. 300. Despite that concern about the effectiveness of the guard that was installed after Avitia’s accident, Harris admitted that MSHA did not tell him to use an expanded metal guard to abate the citation and that it was the Respondent that came up with the guard design. Tr. 301.

            Harris also stated that the company’s policy does not require a lockout/tagout if one is shoveling beneath a conveyor. Tr. 304. Further, he agreed that using a shovel to remove dirt accumulating from beneath a conveyor is a common activity. However, Harris distinguished that action from physically getting underneath the conveyor. Tr. 304.

            Harris noted that some rollers are guarded at the site while others are not. He cited the overland conveyor’s return roller as an example where there is no physical guard. Tr. 305. However, he noted that a “snubber roll[er]” is guarded and two rollers forward of that are guarded too, as both are accessible and therefor not guarded by location. Tr. 305.

            Regarding the location where Avitia became caught, Harris agreed that R 6 depicts several guards on that tail pulley. As noted earlier, the left most guard covers the tail pulley and there is the long rectangular guard right behind Harris in the photograph. There is also a ‘drop guard,’ which is below the right end of the long, rectangular guard. Tr. 318. All three of those guards were in place on the day of the accident. Tr. 319. Also, as previously noted, the return roller, where the accident occurred, is right behind Harris’ legs, in R-6. Tr. 319. Harris noted that seven “troughing rollers” that is, rollers form the belt into a “U” shape, and which are on top of the conveyor belt, are guarded. They are guarded because they present a pinch point and they are guarded by the long rectangular guard shown in R-6.

            In contrast, the return roller which ensnared Avitia is on the bottom side of the belt. Its function is to keeps the belt from sagging onto the ground. The return roller in issue is depicted in R 5 right above the 33" marking on the exhibit. Harris described the return roller’s location as “inside the frame bracket ... it’s located up inside the frame ... the bottom of the roll is relatively flush with the bottom of the frame of the conveyor.” Tr. 324. The 33 inch measure in R 5 records the distance from the bottom of the roll to the ground. Tr. 323. There is no dispute that the return roller in issue did not have a physical guard on it at the time of the accident. Tr. 325.

            Representing the Respondent’s central contention in this case, Harris considered the roller to be guarded by location because there is no “access” to it in the sense that one has to intentionally go that location to gain access. Incidental contact, in his view, could not occur. Tr. 326. Harris expressed his understanding of guarding by location as circumstances where “there’s no way to access it or accidentally fall into it.” Tr. 326. In support of this view, he noted that there are several other rollers that are low to the ground, meaning rollers located 36 inches or less from the ground and he asserted that such rollers have always been considered guarded by location. Tr. 327. Thus, Harris viewed guarding by location to apply to situations where one would have to take deliberate action to gain access. Tr. 327.

            The Court agrees and finds as a fact that if one were to trip or fall in the area where Mr. Harris is standing in the photograph, R 6, no contact with the return roller could occur. As noted, it also rejects the Department of Labor’s assertion that Avitia was shoveling dirt from the outside of the grizzly conveyor and only reaching as far under that conveyor as his shovel permitted, that is up to his shoulders, when he became caught by the return roller. Only Mr. Avitia’s version supports the contention that he was working from outside that conveyor but the Court, upon consideration of Mr. Harris’ testimony and others, concludes that scenario is incredible.

            Although Harris contrasted the accident location with working under the location of the tail pulley, as shown in R 11, and noted that Avitia had shoveled dirt from under there, it is worth noting that the access height to the area under the tail pulley is about the same as the site of the accident. Yet, it is significant to note that the tail pulley is completely guarded underneath it. In contrast the roller where Avitia was caught up was not so completely guarded.

            Harris did not consider the rollers at the tail pulley as guarded by location because one “could duck your head down and walk underneath there, pick your head up. You could accidentally get into that, and that’s why they’re guarded.” Tr. 332. The Court finds this reasoning to be flawed, or at least inconsistent, because one could also duck under at the location where Avitia was injured and that is exactly what the Court finds that he did. Once under the conveyor frame, as shown by R’s Ex R 7, one could pick up his head and be subject to the roller’s action, as happened to Avitia. In the Court’s view, the Respondent’s own exhibits, R 5, 6 and 7, undo its claim that the return roller was guarded by its location. R 6, with Mr. Harris standing at the point of Avitia’s access, shows that the metal frame is at the top of his legs. That frame, as reflected in R 5, leaves a 33 inch access space but, of more significance than the measurement,

R 7 shows how easily one can gain access to the return roller. That same photo also shows the relative positions of Harris’ buttocks and the conveyor I beam frame and it demonstrates that, while access would have to be intentional, it would require little effort to achieve such access by merely bending at the waist. Ironically, the same photograph, R 7, shows guarding is present in the foreground, underscoring both the need for and the absence of guarding at the return roller.

            Regarding the general assertion of guarding by location, Harris stated he considers “something that’s way up in the air or way low to the ground . . . [as] guarded by location.” Tr. 351. He deemed those locations as not requiring a guard because “you cannot access that. You know, there’s no reason to access that.” Tr. 352. However, the Court notes that ability to access a location is different from having a reason to access a location and that Harris seemed to blur the ability to access from having a reason to access an area. In this instance, Avitia had both a comparatively easy ability to access the return roller by simply bending at the waist. In terms of a reason to access the location, the Respondent has provided the most likely reason for Avitia’s accessing it.

            Although Harris maintained that there is some variation among the MSHA inspectors in terms of their view whether a guard is needed or not and that some inspectors would require guarding if a situation “might be accessible,” in the Court’s view, such variations in interpretation only potentially impact the penalty not the fact of violation. Harris also conceded that at times it is simply a situation where a fresh set of eyes sees a guarding issue where others did not. Tr. 353-354. In one guarding citation instance described by Harris, the Respondent was cited where an employee, if he had long enough arms, could reach from a catwalk and get caught in the head pulley. Tr. 356. Harris noted that in that instance there was a guard present, but that it did not extend out far enough. In an attempt to show inconsistency on MSHA’s part in applying the guarding standard, Harris stated that an unguarded return roller along the overland conveyor has never cited by MSHA. This location was identified in the background of R 7 and Harris stated that the conveyor height at that location was 32 inches. Tr. 358. Further, Harris estimated that there must be 15 such rollers along the overland conveyor that are similarly guarded by location. Tr. 359. Again, the Court views such inconsistencies as a distraction from the issue of whether the return roller in this case required guarding. Inconsistent application of the guarding requirement to other rollers is relevant, at most, only to the assessment of any penalty if a violation is found. 

            Manuel Torres, a loader operator at the mine, was also called as a witness for the government. Tr. 193. He estimated once or twice a day, it is necessary to dig around the crusher, the jaw and the belts. This occurs when dirt falls from the belts and it requires digging under the tail and head pulleys so that the dirt doesn’t pile up too close to the belts. Tr. 195-196. Such spillage also occurs around the return rollers. Tr. 196. He stated that in the past he has seen workers cleaning close to the belts, but he added that “nobody is supposed to be under the belts.” However, he added that one can use a shovel and clean piles under the belt while the belts are running and this can be done safely. Tr. 200.

            Accordingly, the testimony of Harris, Torres, and even Mr. Carpio, support the finding that shoveling around and under conveyors is a necessary task at this operation. Certainly, Avitia was doing that work around the tail pulley and around the return roller on the day of the accident although the specific activity that caused him to become ensnared by the return roller came about as a result of his effort to dislodge a rock or some other material which had become lodged between the belt and the roller.

            The government also called Benny Lara as a witness. Lara was the supervisor for the Albuquerque field office at the time of the accident at the Respondent’s mine and it was he who assigned Mr. Cisneros to conduct the MSHA investigation of the accident. Tr. 540-541. Lara’s testimony was limited in its scope. Chiefly, he testified about the guarding standard in issue, 30 CFR 56.14107(a), noting that the only exception in that standard is for moving machine parts above seven feet, and, emphasizing that point, he noted that there is no corresponding exception within the standard for moving machine parts that do not need a guard because they are too low. Tr. 544.

            Aaron Fitting was called as a witness for the Respondent. Fitting is the operations manager for Mainline Rock, which is a subsidiary of Yukon. Tr. 568. Regarding the moving machine part violation Fitting could offer little about the accident itself, because he did not arrive at the scene until the day after the accident. Further, the Court has already determined, on the basis of testimony from those who were there that day, what happened. Apart from the exact circumstances of the accident, Fitting was able to offer some useful information about guarding at the Torrance Mine.

            Fitting stated that he built the crusher at the Torrance mine. Tr. 571. The arrangement however is not fixed in the sense that, as mining progressed, conveyors would be added as the hole in the ground grew. Tr. 573. His work included installing guards. The decision to install guards is based in part on written information and in part on experience. Tr. 574. As Fitting expressed it, “Like tail pulleys have to have guards, B belts have to have guards, drive belts have to have guards, flywheels have to have guards. Anything that a person can - - incidental contact, get to, we guard.” Tr. 574 (emphasis added).

            Fitting also stated that the decision to guard does not take into account whether a miner could stick something, such as a tool, into a pinch point. Rather, the focus is upon whether one could trip or fall and make contact through such an event. Tr. 593-594. Yet, Fitting stated he was aware that miners would clean underneath conveyors using a shovel or a rake to pull dirt out from under a conveyor and that the task was sometimes done from a kneeling position. Tr. 594. However, Fitting did not believe such contact could occur ‘accidentally’ while performing those cleaning tasks such as with a shovel. Tr. 595.

            Accordingly, on the basis of the findings above, the Court concludes that 30 C.F.R. § 56.14107(a) was violated. The return roller in issue was a moving machine part of the type covered by the standard. Indeed the Respondent does not contend that the standard does not apply to such rollers but instead that it does not cover intentional or deliberate action and that it was guarded by its location. However the Court finds that it was a normal part of Avitia’s duties to clean up and shovel material which would be deposited around the conveyors. Such deposits occur continually and as an inevitable part of the mining process. It was also not uncommon for rocks or accumulated debris to become caught in the conveyor system and some sort of blockage occurred here. That blockage prompted Avitia to make the unwise decision to free the stuck rock or material using his shovel, with the ensuing accident. The critical point however is that the return roller was easily accessible and certainly did not require “crawling” to gain access to it. As the Court has noted, the Respondent’s own photos show both the relative ease of access and the very hazardous nature of that moving part. There is in fact, in terms of ease of access, only relatively minor differences between the fully guarded tail pulley and the return roller which ensnared Avitia. Even if there had been a written policy advising that conveyors were to be shut down when material became lodged, the issue of required guarding would be the same because, as the Commision has noted in Thompson Bros. Coal Co., inadequate guarding issues must be resolved on a case-by-case basis, which is to include “all relevant exposure and injury variables” which includes “the vagaries of human conduct.” 6 FMSHRC 2094, 2097 (Rev. Comm. 1984). Here, Avitia responded in a manner that would not be difficult to predict. He was working in the area, performing the directed clean up activity around the grizzly conveyor, when the rock or other material became lodged and he chose the expedient means to try to solve the problem by sticking his shovel at the lodged material in an attempt to free it. The impediment to access the return roller was minimal and insubstantial; simply bending over at the waist, not crawling, afforded access. Once within the conveyor frame, as Respondent’s photos show, one was then able to stand erect or nearly so to access the return roller. Like the nearby tail pulley, which the same photo shows was guarded, the return roller needed a similar style guard.

            It is true that Fitting believed that guarding by location can exempt the need for installation of a physical guard, and on that basis expressed the view that, as here, a “roller [] sucked up inside [a] frame,” is one such example, because [i]t’s not visible, unless you crawl under the belt,” [and therefore] [y]ou couldn’t fall onto it. It’s not a travelway. You couldn’t stand up into it with your head. If you trip, there’s no way to get to it. . . .you can’t fall down it. [One] can’t walk by and lean on it. It’s guarded up inside by the frame.” Tr. 604-605. There are several problems with this view. Notably, the standard only provides an exception where the exposed moving parts are at least seven feet away from walking or working surfaces. The Respondent has not claimed nor is there any evidence that the seven foot rule obtains here. Further, as noted, one would not need to crawl in any sense of that word, to gain access to the roller and, again as Respondent’s own photos show, one could, and indeed Mr. Harris did, stand up once having moved under the conveyor frame.

            Harris conceded that there are no signs warning employees not to work in front of the grizzly conveyor nor other forms of notice to stay away from the area. Tr. 422. The Court finds that digging around conveyors was a common and necessary practice and that the operator did not have any signs or barriers warning employees walking or working near exposed moving parts to stay seven feet away from them.

            Although the Respondent has contended in its Post-Hearing Brief that the standard in issue, 30 C.F.R. § 56.14107(a), does not apply to conveyor belt rollers, part of its effort to make this claim rests upon improperly describing an MSHA Program Policy Manual (“PPM”). In this regard, Respondent asserts that the PPM “specifically states the ‘similar moving parts’ language of § 56.14107(a) does not apply to conveyor belt rollers. It then quotes from that PPM, advising that it provides: “Conveyor belt rollers are not to be construed as ‘similar exposed moving machine parts’ under the standard . . .” R’s Br. at 6. In the Court’s view, this description was misleading.  

            As the Secretary points out in her Reply Brief, Mainline truncated its quote of the PPM. The very important full quotation provides:

                        Conveyor belt rollers are not to be construed as ‘similar exposed

                        moving machine parts’ under the standard and cannot be cited for

                        the absence of guards and violation of this standard where skirt

                        boards exist along the belt. However, inspectors should recognize

                        the accident potential, bring the hazard to the attention of the

                        mine[] operator, and recommend appropriate safeguards to prevent

                        injuries.

Secretary’s Reply at 2.

            It is undisputed that no skirt boards were present at the location where Avitia became ensnared by the return roller. Accordingly, Respondent’s Counsel is reminded that there is an obligation of candor toward the tribunal.

            The Respondent also asserts that, as the return roller is not one of the eleven listed specified components in the standard, the standard is ambiguous as to such application. On that premise, that there is ambiguity, it continues that, under such circumstances, to be supported, the Agency’s interpretation that a non-listed part is included must be reasonable. Referring again to the PPM and to the text of the standard itself, Respondent asserts that it is not reasonable. R’s Br. at 6-7. Citing Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Rev. Comm. 1984) and the PPM yet again, the Respondent notes that the PPM also states:

This standard is to be cited when a guard at conveyor locations does not extend a distance sufficient to prevent any parts of a person from accidentally getting behind the guard and becoming caught, or in those instances when there is no guard at the conveyor-drive, conveyor-head, conveyor-tail, or conveyor take-up pulleys.

R’s Brief at 8 (emphasis inserted by Respondent).

            With those contentions in mind, Respondent cites Sangravl Company, Inc., 30 FMSHRC 1111 (ALJ 2008) where the administrative law judge vacated the citation upon finding that the chance of inadvertent contact was extremely unlikely as there was no evidence that the roller was worked on while it was running. Here, however, the Court notes that the accident occurred and there is uncontroverted evidence that work was performed at the roller while it was running. Although the Court agrees that the roller was inaccessible to accidental contact, it still concludes, for the reasons stated within, that the standard applies in this case. Similarly, while arriving at a different conclusion from the Respondent as to the standard’s applicability, the Court finds that Avitia purposefully stuck his shovel near the moving roller in order to remove a rock. This is because the moving machine part, the return roller here, was of the class of such moving parts that, when not guarded, can, and in this case did, cause injury. In fact, the very PPM that Respondent would have the Court pay heed to, can be fairly construed to instruct that such belt rollers are exempt form the standard only when there are skirt boards present.

            It also seems that the Respondent interprets the PPM too liberally when it asserts that it “states specifically that 30 C.F.R. § 56.14107(a) is intended to address the prevention of accidental contact with moving machine parts.” The portion of the PPM Respondent refers to actually provides that:

            This standard is to be cited when a guard at conveyor locations does not extend a distance sufficient to prevent any parts of a person from accidentally getting behind the guard and becoming caught, or in those instances when there is no guard at the conveyor-drive, conveyor-head, conveyor-tail, or conveyor take-up pulleys.

            Two observations are made about the PPM in this regard. First, the return roller, it has been found, was not guarded at the time of the accident. Therefore, the PPM language about “accidentally getting behind the guard” is applicable. Second, as it was not guarded, the second part of the quoted language, next above, only cites examples of unguarded pulleys. In contrast, the standard itself is not so limited as it protects against moving machine parts that can cause injury by requiring guards to protect persons from contact with such moving parts.

            Respondent alternatively submits that the citation should be vacated because it was not provided with adequate notice that a guard was required for the cited roller. Under this argument Respondent asserts that the standard in issue is so vague, incomplete, indefinite or uncertain that people are left to guess as to it meaning and application. To support this claim, Respondent notes that no MSHA inspectors believed that the return roller required guarding. Respondent points to the testimony of Harris that an MSHA inspector had advised him that a different return roller on the Quarry’s Overland conveyor was guarded by location as it was close enough to the ground so as to be inaccessible. Respondent contends that the testimony of Aaron Fitting and MSHA supervisor Lara support this contention as well. As Mainline would have it, the prior identification by MSHA inspector Gutierrez of some 20 to 30 locations where he identified a need for guards should be the last word on the locations where guards were needed at the mine. In connection with its claim of lack of notice, Respondent cites Alan Lee Good d/b/a Good Construction, 23 FMSHRC 995 (Sept. 2001) (“Good Construction”) for the test to be applied in determining whether a reasonably prudent person would have notice of a standard’s requirements. Applying that test, Respondent maintains that such notice was not provided. R’s Brief at 12.

            In sum, Respondent maintains that the standard is vague and broadly worded, that the PPM provisions contradict the Secretary’s position in this litigation and that MSHA had not issued any prior violations for unguarded bottom rollers in its previous inspections. All of this adds up, in Respondent’s view, to a lack of fair notice. For the reasons set forth in this decision, the Court rejects those contentions.

            The Court agrees with the Secretary that the citation issued for the violation of 30 C.F.R. § 56.14107(a) applies to the return roller in issue and that the violation was significant and substantial. The Court has determined that the violation occurred and clearly the absence of the guard for the return roller contributed to the discrete safety hazard of Avitia’s being caught in the return roller. Serious injury not only would be likely in such an event, but also the facts of the accident confirmed that to be the case. Avitia was extremely fortunate to have survived the event.

            Turning to the issue of negligence, the Court concludes that the operator knew or should have known of the violative condition or practice and that no mitigating circumstances were present. The Court agrees that, relevant to this issue, is the fact that the Respondent was advised about two months before the accident of the need to guard some 20 to 30 return rollers. Tr. 600. The record supports the conclusion that the configuration of the conveyors was changed after that, but even if that had not occurred, MSHA’s identification of specific rollers in need of guards does not insulate an operator from the duty to assess the need for guards at every location where moving machine parts may be contacted and cause injury.

            The Court does not subscribe to the claim that MSHA has permitted guarding “by location” as applying to circumstances such as those that obtained here. The standard itself speaks to the only recognized exception, the situation where exposed moving parts are at least seven feet away from walking or working surfaces. There is neither a contention nor evidence of record to support the application of the exception here. Indeed one would be hard pressed to explain how it was clear that the tail pulley so obviously needed to be guarded but yet the return roller, with nearly the same access, did not. Again, the Respondent’s own photographic exhibits make this plain.

            Nor would any contention that because MSHA had identified a number of rollers in need of guards, those not so named would not need them. It is the operator’s, not MSHA’s, responsibility to identify such moving machine parts. Given the testimony that conveyor belt clean up is a routine and continuing task, the operator’s negligence is properly characterized as high.

            On the basis of the entire record, the Court affirms the appropriateness of the $60,000.00 penalty, as specially assessed for this section 104(a) citation. The violation, per the standard set forth in Mathies Coal Co., 6 FMSHRC 1 (January 1984), was significant and substantial. The Court has found that the cited standard was violated, that the absence of the guard presented a distinct safety hazard contributed to by the violation, that the hazard in fact contributed to the resulting injury and that the injury was of a serious nature. In addition, there was high negligence here, as the Respondent was aware of the hazard, knew that clean up was necessary around the conveyors and knew that material becoming lodged in the conveyor was a common and expected problem endemic to the operation and had guarded similar rollers and guarded the adjacent tail pulley.

B. Failure to Notify MSHA; the alleged violation of 30 C.F.R. § 50.10.

            Essentially, MSHA established this violation through the testimony of Dwayne Olsen. Olsen is Mainline’s lowdown superintendent at the Torrance Quarry. He also handles compliance issues and paperwork at the Torrance Quarry. Tr. 453. He was at the site on the day of the accident. He drove his truck to the accident site, which was only a minute away. Tr. 459. When he arrived there, Avitia was on the ground being attended to by two employees. Olsen remained at the scene for only a few minutes before leaving. Tr. 460. He left because he was one of the individuals who had to make telephone calls. Tr. 461. Based on his quick view of Avitia, Olsen did not think Avitia had been seriously hurt, even though he understood that he went through the return roller. Tr. 462. He then drove to the mine office to make the calls. Although he stated that his first call was to 911 and that, after that, his call sheet directed that calls be made to the sheriff or state police, it was pointed out to him that, in his deposition, Olsen stated he first tried to contact corporate officials Mike McKinney and Vern Scoggin to inform them of the accident and to advise them that they were getting a helicopter for Avitia. Tr. 465- 466. So, Olsen in fact first called the corporate office. Tr. 467. Yet, at the time he called the corporate office, Olsen was aware that Avitia needed medical attention. Tr. 468. He also called 911 informing them of the accident and the need for an ambulance. Tr. 468. By Olsen’s own estimate, all of his calls took less than 30 minutes. Tr. 472.

            Subsequently Scoggin returned Olsen’s call and he asked if Olsen had called MSHA. Olsen told Scoggin that he had not made that call because he didn’t feel there was a need to do so at that time, in that the criteria to require such a call had not been met. Tr. 474. He based this on the fact there had not been a death, he did not feel death was imminent, and the injured had not been trapped for 45 minutes. Tr. 475. However in the 30 minutes that then elapsed Olsen made no further inquiries as to Avitia’s condition. Tr. 476, 479. He then called the owners of the property, that is, the lessors of the land to the Respondent. Tr. 476. Olsen also received a call from Brian Deatly, the mine owner. Mr. Deatly asked if Olsen had called MSHA, and also advised Olsen to make that call. Tr. 478. But, Olsen did not make the call to MSHA after concluding his call with Deatly. Tr. 481. Olsen did not make the request for a helicopter for Avitia but he conceded that once he learned a helicopter was on the way, he knew that the matter was more serious. Tr. 480-481.

            Eventually Olsen did call MSHA at about 2 p.m. or 2:35 or 2:37. He could not recall exactly the time of the call. Tr. 482. This call was made after the helicopter had departed. Tr. 482. Olsen continued to maintain that he did not feel the criteria to make the call within 15 minutes had been met. Tr. 483. Yet, he did not feel his call could wait until the next day because “an individual [had been] hurt.” Tr. 484. According to Olsen it did not dawn on him about the seriousness of Avitia’s condition until the helicopter EMT told him that Avitia was in “tough shape.” Tr. 485. Ex P 10 is an MSHA form that Olsen filled out, which documents the date he completed it. Tr. 488. Under questioning by Respondent, Olsen was directed to Exhibit R 12, which reflect his notes, made the night of the accident. Tr. 491. Olsen agreed that, once he became aware of the extent of Avitia’s injuries, he did place the call within 15 minutes of that. Tr. 493. He reiterated that, when he first saw Avitia, his believed that his injuries were not life threatening. Tr. 494. The only location for calls to be placed reliably was at the mine office. That office is really a storage container that was converted to serve as an office. Tr. 495. While at that office, making calls, he did receive a call from an employee who was with Avitia and who inquired when the ambulance would be arriving. Tr. 496. But, Olsen maintained that he did not inquire how Avitia was doing when the employee called. Tr. 497. Still, while he knew an ambulance was on the way, he did not consider the situation life threatening. At any rate, Olsen maintained that he did not know of the seriousness of the situation until the paramedic with the helicopter so advised him. Tr. 498.

            Aaron Fitting’s testimony was informative as to the violation stemming from the failure to report the accident to MSHA. Fitting stated that on the day of the accident he received a call from Dwayne Olsen and during that call he inquired if Olsen had called MSHA. Tr. 569. Although Fitting testified that Olsen told him that he didn’t think there was anything wrong with Avitia and thus there was no need to call MSHA, Fitting told him he should still call MSHA. Tr. 569. After that, Fitting stated that it was his understanding that Olsen then talked to the paramedics and after that, called MSHA. Olsen then called Fitting again to report that he had called MSHA. Tr. 570. Fitting agreed that when he heard from Mr. Harris the first time about the incident he could have, but did not, direct that MSHA be called. Tr. 586. On re-direct, Fitting, in attempting to explain his failure to make a call to MSHA, agreed he wasn’t at the site so his knowledge of Avitia’s condition was very limited. Tr. 599.

            Regarding the alleged violation of 30 C.F.R. § 50.10, as set forth in Citation No. 7885927, Respondent acknowledges that, pursuant to that section there are specific types of accidents that must be reported immediately, that is, within 15 minutes of the accident. R’s Br. at 13-14. Respondent cites Newmont USA Limited, 32 FMSHRC 391, (2010), an administrative law judge decision, in support of its position that the event in this case did not have a reasonable potential to cause death. Of course, the particular facts in Newmont are entirely different from this matter, so the value of citing that case is minimal. Certainly the Court agrees with the Respondent’s contention that an injury, by itself, does not trigger the reporting requirement. Rather, the key determinant is when the injury presents a “reasonable potential to cause death.” Nor does the Court take issue with Respondent’s contention that the particular circumstances and conditions at the accident site control the outcome and that, in fairness, there must be “a degree of discretion” afforded to the operator’s determination of the need to report any given accident. R’s Br. at 16. Still, as the Respondent observes, the Commission has stated that the while the operator must have a reasonable opportunity for its investigation of an event, that must be “carried out . . . in good faith and without delay and in light of the regulation’s command of prompt, vigorous action.” Id. at 16, citing Consolidation Coal Company, 11 FMSHRC 1935, 1938 (Rev. Comm. 1989).

            Examining the particular facts, Respondent asserts that Olsen called 911 within minutes of the accident “and took action to implement Mainline’s procedures to provide Mr. Avitia with the best post-accident care he could.” Respondent maintains that Olsen acted reasonably, deciding that MSHA did not need to be notified immediately “based on [Olsen’s assessment of] the condition of Mr. Avitia a few minutes after he was injured.” R’s Br. at 17. Further, Respondent contends that “once Mr. Olsen learned the nature of Mr. Avitia’s injuries, [he] notified MSHA within 15 minutes.” Id. At bottom, Respondent contends that Respondent was not aware of the severity of Avitia’s condition until the EMT informed Harris and Olsen of that. R’s Br. at 18.

            The Court realizes that it would not be fair to simply look at the facts months later and then pronounce what the proper response should have been and it does not do so here. On the other hand, it is fair to characterize Olsen’s behavior as remarkably non-inquisitive about Avitia’s condition and injuries. Based upon all of the facts known to Olsen at the time and those facts he could have developed with minimal additional inquiry, it is clear that a reasonable person would have concluded that the call was required at the time Olsen viewed Avitia at the accident scene. One does not have the discretion to remain uninformed about the circumstances of the accident and then assert that the reasonable potential for the accident to cause death was unknown.

            Accordingly, based on the above findings and discussion, the Court finds that the cited standard was violated and that the time starting the obligation to call MSHA began when Olsen first arrived at the scene of Avitia’s accident. Thus, the Court finds that at least an hour and a half elapsed after the time for the required call to MSHA had passed. The negligence under these circumstances was high, not moderate. Because the negligence was high, not moderate, the Court modifies the citation to reflect that and increases the penalty to $6,000.00.

Civil Penalty Assessment

            Based on the findings above, the Court assesses a civil penalty in the total amount of $66,000.00.

ORDER

Within 40 days of the date of this decision, Mainline Rock and Ballast, Inc., Respondent, IS ORDERED to pay a total civil penalty of $66,000.00 for the violation of 30 C.F.R. 14107(a), as set forth in Citation No. 7885926 and for the violation of 30 C.F.R. 50.10, as set forth, and as modified by the Court, in Citation No. 7885927. Upon payment of the civil penalty, this proceeding IS DISMISSED.

William B. Moran

Administrative Law Judge