FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19^th Street, Suite 443

Denver, CO 80202-2500

303-844-3577/FAX 303-844-5268

June 9, 2011

DECISION

Appearances:              Matthew Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor, Seattle, Washington, for Petitioner; 

Merrily Munther, Esq., Munther Goodrum, Chartered, Boise, Idaho, for Respondent.

Before:                        Judge Manning

            These cases are before me on petitions for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against D. Holcomb & Company (“Holcomb & Company”) 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 parties introduced testimony and documentary evidence at a hearing held in Seattle, Washington, and filed post-hearing briefs. MSHA Inspector Ron Eastwood testified for the Secretary and Dennis Holcomb testified for Holcomb & Company.

            Holcomb & Company operates a small sand and gravel quarry in Clallam County, Washington. This facility employed four people at the time of the MSHA inspection including the owner, Dennis Holcomb, and his son, Tim. These cases involve 17 citations issued under section 104(a) of the Mine Act. The Secretary proposes a total civil penalty of $65,039.00 in these cases.

I. DISCUSSION WITH FINDINGS OF FACT

CONCLUSIONS OF LAW

            A. Citation No. 6433221

            On March 27, 2008, MSHA Inspector Ron Eastwood issued Citation No. 6433221 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.15005 as follows:

An employee was standing on the edge of the elevated Pioneer screen working on the screen without being tied off. Two employees were changing the screens with one inside the screen and the other standing on the edge which was approx. 10 inches wide and 6 ft. in length. The ledge was approx. 10 ft. above ground level.

(Ex. G-1). The inspector determined that an injury was reasonably likely and if an injury did occur it could be fatal. He determined that the violation was of a significant and substantial nature (“S&S”) and that Respondent’s negligence was high. Section 56.15005 provides, in part, that “[s]afety belts and lines shall be worn when persons work where there is a danger of falling.” The Secretary proposes a penalty of $6,458 for this citation.

            Inspector Eastwood testified that when he arrived at the quarry, he observed Jim Crist, an hourly employee, standing on a beam of the screen crusher that was about 10 feet above the ground. Crist was helping change the screen on the crusher and the beam he was standing on was 10 inches wide and six feet long. (Tr. 17). Crist was not wearing any fall protection and, given the nature of the work he was performing, a fall was reasonably likely. The inspector testified that when he asked Crist, he was told that he had not been trained concerning the need to tie off. (Tr. 20). When Crist went to get a harness from his own service truck, the inspector saw that it was brand new and was still in the original packaging. The Secretary argues that the citation should be affirmed as written. Inspector Eastwood determined the Holcomb & Company’s negligence was high because the miner had not been trained to tie off and the harness that he retrieved was still in the original packaging.

            Holcomb & Company does not dispute that Crist should have been tied off when changing the screen. Inspector Eastwood testified that he was told by Tim Holcomb that the employee was new and he had been told to tie off. (Tr. 20). Respondent submits that the citation should not have been designated as S&S, and that if an injury did occur, it would have at most resulted in lost workdays or restricted duty. In addition, it argues that its negligence was low. When Crist was hired, he told Dennis Holcomb that he was familiar with and had used fall protection during previous employment. (Tr. 150). Fall protection was available to its employees and four hours of training had been provided to employees. Id. Tim Holcomb, his supervisor, was operating the excavator at the time and he did not know that Crist was changing a screen without using fall protection. Id. Respondent maintains that the violation was the result of employee misconduct.

            I find that the Secretary established an S&S violation of the safety standard. It is undisputed that Mr. Crist was helping to change a screen without using a safety belt and line. He was standing on the edge of the Pioneer screen at the time and was about ten feet off the ground. A violation is properly designated S&S “if, based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to by the violation will result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981). The Commission has set forth the elements that the Secretary must establish. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). The elements are:

(1) [T]he 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.

Id. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission

provided additional guidance:

We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

This evaluation is made in terms of “continued normal mining operations.” U.S. Steel, 6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

            The Secretary established all four elements of the S&S test. There was a violation of a mandatory standard that created a discrete safety hazard. I find that the Secretary established that it was reasonably likely that the hazard contributed to would have resulted in an injury. Maneuvering a screen while standing on the edge of the equipment makes it reasonably likely that the employee will fall. A fall of ten feet will likely result in a serious injury including lost workdays, permanently disabling injuries, or a fatality.

            The evidence as to Holcomb & Company’s negligence is conflicting. The inspector testified that Mr. Crist told him that he had not been trained to tie off. Mr. Holcomb testified that Crist told him that he had used fall protection in his previous job. (Tr. 150). He also testified that Respondent’s employees were trained to use safety belts and lines. Id. Respondent argues that this evidence plus the fact that Crist’s immediate supervisor could not see him when he was changing the screen should be credited and that the degree of negligence attributed to Respondent should be reduced.

            The negligence of a rank-and-file miner is not imputable to an operator for the purposes of assessing a penalty. Whayne Supply Co., 19 FMSHRC 447, 451, 453 (Mar. 1997); Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995); Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982). The Secretary argues that Tim Holcomb was on the property that day but he did not direct Crist to tie off. (Sec. Br. 6). I find that the Secretary established that the violation was the result of the operator’s high negligence. When the inspector advised Crist that he had to wear fall protection, he went to his own truck to get a harness rather than to the trailer or the shop were Respondent’s harnesses were kept. (Tr. 151-52). I find that Crist was not told to use fall protection and that Dennis Holcomb relied on the fact that Crist had previous work experience in construction. Crist was not adequately trained or supervised for the task to which he was assigned. It is worth noting that fall protection is not necessary at any other location at this quarry. The operator’s negligence was high and a penalty of $600 is appropriate.

            B. Citation No. 6433222

            On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433222 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.11004 as follows:

The portable aluminum ladder the employees were using to access the Pioneer screen was not secured at the top of the ladder. The employees were changing the screens on the elevated screen deck. The ladder was an extension ladder which was not extended and was approx. 10 ft. in length for this application.

(Ex. G-2). The inspector determined that an injury was unlikely but that if an injury did occur it could be fatal. He determined that the violation was not S&S and that Respondent’s negligence was moderate. Section 56.11004 provides, in part, that “[p]ortable rigid ladders shall be provided with suitable bases and placed securely when used.” The Secretary proposes a penalty of $392 for this citation.

            Inspector Eastwood testified that he issued this citation when he saw that the ladder employees used to change out the screen was not secured at the top. (Tr. 22-23). The ladder was a 10-foot portable extension ladder made of aluminum. Eastwood testified that an injury was unlikely because the base of the ladder was on firm ground and the ladder was at a good angle. If an injury did occur it could be fatal. (Tr. 24). The inspector stated that the operator could have complied with the standard by securing the ladder at the top or having someone hold the ladder from the bottom. (Tr. 26-27).

            The operator argues that a violation was not established because the cited ladder was provided with a suitable base and was placed securely when used. There is nothing in the safety standard that requires that ladders be secured at the top. The Secretary argues that, because the ladder was not secured at the top, it was not secured in a manner that complied with the safety standard.

            This citation is vacated because the safety standard only requires that portable ladders be placed securely when used. The fact that the ladder was not secured at the top does not establish that it was not placed securely when used. See Higman Sand & Gravel Inc., 24 FMSHRC 87, 103 (Jan. 2002) (Judge Manning). The photograph shows that the top of the ladder straddled a beam, which would prevent it from moving to the side. (Ex. G-2, p. 3). The inspector merely speculated that someone could fall backwards off the ladder because it was not secured at the top. The inspector agreed that the ladder was at a proper angle and that it did have a suitable base.

            C. Citation No. 6433223

            On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433223 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:

The drive line on the 1 1/4 inch chip conveyor belt extended out approximately 6 inches and was not guarded. The diameter of the drive shaft was approx. 2 inches. The drive line was approx. 3 ft. up from ground level next to a walkway. The shaft had a slot in it for a shear pin.

(Ex. G-3). The inspector determined that an injury was reasonably likely and that if an injury did occur it could result in lost workdays or restricted duty. He determined that the violation was S&S and that Respondent’s negligence was moderate. Section 56.14107(a) provides that “[m]oving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parties that can cause injury.” The Secretary proposes a penalty of $4,329 for this citation.

            Inspector Eastwood testified that he issued this citation because the drive line protruded about 6 inches beyond the guard on the tail pulley on the chip conveyor. (Tr. 28). The drive line was about three feet above the ground and it had a keyway in it, enhancing the danger to employees. The shaft was next to a walkway that is used when maintenance is performed and when the area is examined. (Tr. 30). The inspector determined that an injury was reasonably likely because a person walking or working in the area could be come entangled in the fast moving drive line and could be permanently disabled as a result. He believed that the violation was S&S because the cited condition had existed for a long time. (Tr. 31). Inspector Eastwood evaluated the negligence as moderate because the drive line had been previously guarded. He determined that the shaft had previously been guarded because the condition was immediately terminated when the operator covered the shaft with a previously-manufactured guard. (Tr. 32).

            Holcomb & Company argues that the quarry was not operating at the time the citation was issued. More importantly, it argues that its employees were not exposed to the hazard because of the location of the shaft. A large concrete block was immediately adjacent to the cited shaft which would prevent anyone from accidently coming into contact with it. (Tr. 159; Ex. G-3 p. 5). This screen sits on this block. MSHA’s Guide to Equipment Guarding recognizes that not all shafts and shaft ends require guarding:

Shafts and shaft ends need guarding if they present a hazard. Rotation speed, size, location, keyways, burrs and other factors need to be considered when determining which shafts need guarding. Not all shaft ends require guarding. . . .

(Ex. G-23, p. 17).

            Third, it argues that this condition has existed since 2005, including during a previous inspection by Inspector Eastwood. (Tr. 157). As a consequence, Holcomb & Company was not provided with fair notice of the requirements of the safety standard at this location.

            I address the notice issue first. The Secretary’s safety standards must “give a person of ordinary intelligence a reasonable opportunity to know what is [required or] prohibited, so he may act accordingly.” Lanham Coal Co., 13 FMSHRC 1341, 1343 (Sept. 1991).

When faced with a challenge that a safety standard failed to provide adequate notice of prohibited or required conduct, the Commission has applied an objective standard, i.e., the reasonably prudent person test. The Commission recently summarized this test as “whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirements of the standard.

Id. (citations omitted).

            In Alan Lee Good d/b/a/ Good Construction, 23 FMSHRC 995 (Sept. 2001), the Commission grappled with the notice issue. Although the Commission split on the application of the facts of that case to the law, the legal principles set forth are basically the same in both opinions.

In applying the reasonably prudent person standard to a notice question, the Commission has taken into account a wide variety of factors, including the text of a regulation, its placement in the overall enforcement scheme, its regulatory history, the consistency of the agency’s enforcement, and whether MSHA has published notices informing the regulated community with “ascertainable certainty” of its interpretation of the standard in question. Also relevant is the testimony of the inspector and the operator’s employees as to whether certain practices affected safety. Finally we look to accepted safety standards in the field, considerations unique to the mining industry and the circumstances at the operator’s mine.

23 FMSHRC 1005 (citations and footnotes omitted). The regulatory history of section 56.14107(a) makes clear that the Secretary provided notice to the mining community that she interprets the safety standard very broadly to protect persons from coming into contact with moving machine parts and that the standard covers inadvertent, careless or accidental contact. See Higman Sand & Gravel Inc., 24 FMSHRC 92-93.

            In this case, the operator is arguing that fair notice was not provided because the shaft had never been cited by MSHA despite the fact that the quarry had been inspected several times by MSHA with the shaft in the same condition and in the same location in relation to other equipment since 2005. Mr. Holcomb testified that the shaft had never been guarded and that it simply used a part of a conveyor roller to quickly abate the condition. (Tr. 158, 163-64). After the citation was terminated, Respondent cut the shaft off so that it was no longer protruding past the existing wire mesh. Id. The Respondent also argues that MSHA’s guarding guide makes clear that not all shaft ends require guarding. Taking into consideration the location of the shaft, which was protected by the large concrete block, and the fact that it had never been cited, Respondent did not believe that the shaft required guarding.

            I find that Respondent was provided with fair notice of the requirements of the standard. The shaft presented a hazard of accidental contact, especially since it contained a keyway. The guarding standard is designed to protect against the possibility of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness. Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept, 1984). Although it appears that the condition had not been previously cited by MSHA during inspections between 2005 and 2008, the condition was not particularly obvious because of its location and may have simply been missed. The fact that the quarry was not producing aggregate or operating its equipment at the time of the inspection is irrelevant. I find that the violation was neither serious nor S&S because contact with the shaft was not very likely. Respondent’s negligence was low because it reasonably believed that a guard was not required at that location. A penalty of $100 is appropriate.

            D. Citation No. 6433224

            On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433224 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:

The Chicago brand hand-held grinder did not have the safety shield on the grind[er]. The safety shield had been removed. The grind[er] had been used to grind off a weld on a pair of vice grips earlier in the shift. The grinder was laying in the back of a service truck where it had been left.

(Ex. G-4). The inspector determined that an injury was reasonably likely and that if an injury did occur it could result in a permanently disabling injury. He determined that the violation was S&S and that Respondent’s negligence was moderate. The Secretary proposes a penalty of $4,329 for this citation.

            Inspector Eastwood testified that he issued the citation because a grinder located on the bed of the truck was not equipped with any type of guard. (Tr. 36). The grinder was plugged into an electrical outlet. Mr. Crist told the inspector that the grinder had been recently used. (Tr. 37). Inspector Eastwood determined that the violation was S&S because it was reasonably likely that someone would be injured and that the injury would be reasonably serious. Without a guard, metal slivers or sparks can injure the user’s eyes, face, or arms. (Tr. 34).

            Apparently, Mr. Crist used his own grinder rather than one owned by Holcomb & Company because the grinding wheel on Respondent’s grinder was worn out. (Tr. 166). Mr. Holcomb testified that Respondent’s grinder had a guard on it and the employee could have installed a new grinding wheel. Id. Holcomb & Company argues that it had no way to know that the hourly employee would use his own unguarded grinder rather a guarded grinder supplied by Respondent. A mine operator’s supervisor cannot be expected to stand alongside its employees “to prevent him from making stupid mistakes.” (Resp. Br. 7). There were three other grinders available at the shop, was well as other grinding wheels. (Tr. 166). In addition, it maintains that the evidence shows that employee told Mr. Holcomb that he was wearing a face shield while using the grinder. (Tr. 167).

            I find that the Secretary established an S&S violation of the safety standard. I credit Inspector Eastwood concerning the hazards presented when using a grinder without a guard. I do not credit the hearsay testimony that the employee was fully protected by a face shield when he was using the grinder. I also find that Respondent’s negligence was low. The negligence of a rank-and-file miner is not imputable to an operator for the purposes of assessing a penalty. I agree with the operator’s argument that it could not have anticipated that an employee would use his own unguarded grinder rather than a company-issued grinder with a guard on it. A penalty of $100 is appropriate for this violation.

            E. Citation No. 6433226

            On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433226 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14112(b), as follows:

The back side of the tail pulley guard on the VSI exit conveyor was not secured. The bolt securing the guard had come loose and did not keep the guard from pushing outward. The rest of the tail pulley was guarded. The tail pulley was located on the ground level and was not located in a highly traveled area. The conveyor belts was not running when inspected.

(Ex. G-5). The inspector determined that an injury was unlikely but that if an injury did occur it could be permanently disabling. He determined that the violation was not S&S and that Respondent’s negligence was moderate. Section 56.14112(b) provides that “[g]uards shall be securely in place while machinery is being operated, except when testing or making adjustments which cannot be performed without removal of the guard.” The Secretary proposes a penalty of $176 for this citation.

            Inspector Eastwood determined that the back side of the guard on the cited tail pulley was not secured, which allowed access to the moving pulley. (Tr. 40-41). Based on the presence of mud caked on the bolt, the inspector concluded that it had not been tight for a long time. (Tr. 41). He was concerned that someone could lift up the guard and attempt to clean around the area while the tail pulley was operating. (Tr. 42). He determined that an injury was not reasonably likely.

            Mr. Holcomb testified that someone had pulled the guard up to clean up accumulations under the tail pulley. (Tr. 171). Whoever did this cleaning failed to completely secure the nut after he was finished cleaning. The plant was not operating at the time the citation was issued because it has been down for two weeks for maintenance. Mr. Holcomb testified that a walkaround inspection would have been conducted before the plant was started again. Employees do not enter the area when the plant is operating because the loader dumps gravel in the area and it would be too dangerous to be in that location. (Tr. 172). He believed that the presence of mud on the bolt did not establish that the condition had existed for a period of time. The area around the tail pulley was muddy and the employee who cleaned under the tail pulley could have easily gotten mud on the bolt. (Tr. 174).

            The photograph establishes that the tail pulley was provided with a substantial guard and that the guard was secured in most areas. (Ex. G-5; Ex. R-5). The guard on the back was slightly loose because it was not bolted down securely. The likelihood that anyone would become entangled in the tail pulley was remote at best, especially because of its location. (Ex. R-5). In addition, the plant was not operating and the condition may well have been corrected during the pre-operational examination. The fact that mud was on the bolt does not establish that the condition had existed while the plant was operating. The bolt could have become muddy in any number of ways including while an employee shoveled loose accumulations from under the tail pulley. I find that there is insufficient evidence to establish that the equipment was operated while the guard on the back side was not secured bolted down. Such a finding is a prerequisite to a violation of section 56.14112(b). See Northwest Aggregates, 20 FMSHRC 518, 523 (May 1998) (Judge Manning). Consequently, this citation is vacated.

            F. Citation No. 6433227

            On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433227 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.12016, as follows:

The electrically powered Pioneer Screen was not locked/tagged out before 2 employees changed the screens. The generator was shut off but no means of locking the power source [was] taken. There was no tag stating who was working on the piece of equipment or when they were working on it. There was no place to lock out the generator.

(Ex. G-6). The inspector determined that an injury was reasonably likely and if an injury did occur it could be fatal. He determined that the violation was S&S and that Respondent’s negligence was moderate. Section 56.14107(a) provides, in part, that “[e]lectrically powered equipment shall be de-energized before mechanical work is done on such equipment. Power switches shall be locked out or other measures taken which shall prevent the equipment from being energized without the knowledge of the individuals working on it.” The Secretary proposes a penalty of $2,106 for this citation.

            The inspector determined that the Pioneer Screen was not locked out or tagged out when two employees were changing the screen. (Tr. 45-46). If someone were to turn on the screening equipment while the men were changing the screen at the top, the men could be seriously injured or killed. An injury was reasonably likely and the violation was S&S. The inspector determined that Respondent’s negligence was moderate because the miners had turned off the generator that supplies power to the Pioneer Screen prior to working. (Tr. 46-47).

            Inspector Eastwood testified that, although Holcomb & Company has a policy that only the lead mechanic can energize equipment, that policy did not comply with the safety standard because it requires that it be locked out and tagged out by the miners performing the maintenance in electrically powered equipment. (Tr. 48). The men changing the screen may not have been visible to anyone who closed the switch providing power to the screen. (Tr. 50).

            Mr. Holcomb testified that the only people authorized to energize electrical equipment that has been shut down for repair were his son Tim and himself. (Tr. 176-77). Other employees could de-energize equipment in an emergency but they were trained to never energize equipment on their own.

            I find that the Secretary established a violation. Respondent argues that the safety standard authorizes an operator to take “other measures to prevent the equipment from being energized without the knowledge of the individuals working on it.” Although that language is contained in the safety standard, the measures taken by Holcomb & Company do not fit into the category of “other measures” as contemplated by the standard. The standard clearly requires that some sort of mechanical device to prevent equipment from being energized without the knowledge of the employee work on the equipment. Indeed, the final sentence of the standard states that “[s]uch locks or preventive devices shall be removed only by the persons who installed them or by authorized personnel.” (emphasis added). The lockout standard is not satisfied by having a company policy that only grants certain management employees the authority to energize machinery and equipment.

            I also find that the violation was serious and S&S. Many serious and fatal accidents at sand and gravel quarries could have been avoided if electrically-powered equipment had been locked out and tagged out. There is a history of such accidents at quarries for violations of this safety standard. I credit the Secretary’s evidence on this issue. I find that it was reasonably likely that the violation would result in an accident of a reasonably serious nature. Respondent’s negligence was moderate. A penalty of $500 is appropriate.

            G. Citation No. 6433228

            On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433228 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.12008, as follows:

Several 480 volt power cables entered the generator trailer through the door frame. The conductors controlled the various conveyor belts and equipment used to screen the rock. There were no bare conductors visible going into the trailer.

(Ex. G-7). The inspector determined that an injury was unlikely but that if an injury did occur it could be fatal. He determined that the violation was not S&S and that Respondent’s negligence was moderate. Section 56.12008 provides, in part, that “[p]ower wires and cables shall be insulated adequately where they pass into or out of electrical compartments. Cable shall enter metal frames of motors, splice boxes, and electrical components only through proper fittings. When insulated wires, other than cables, pass through metal frames, the holes shall be substantially bushed with insulated bushings” The Secretary proposes a penalty of $392 for this citation.

            The electrical cables at issue entered the open door to the trailer that contained the quarry’s power center. (Tr. 52; Ex. G-7). These cables carry 480 volts from the generator in the trailer to electrically-powered equipment at the quarry. The inspector believed that, because the power cables were unprotected where they entered the trailer, they could be cut at that location. (Tr. 53). Vibration in the trailer could also damage the cables where they enter the trailer. (Tr. 58). He determined that it was unlikely that anyone would be injured because the door to the trailer was tied open so it could not close on the cables. (Tr. 54-55). The cables were substantially bushed where they entered the control box inside the trailer. (Tr. 56).

            I find that the Secretary did not establish a violation of the cited standard. Because cables are involved in this instance, such cables “must enter the metal frames of motors, splice boxes, and electrical components only through proper fittings.” 30 C.F.R. § 56.12008. The cables were supplied with proper bushings and/or fittings where they entered the control box inside the trailer. The safety standard does not apply to the area where the cables passed through the doorway of the trailer. This location was not a metal frame of a motor, splice box, or any type of electrical component or equipment. It was simply an open doorway at the back of a trailer. The doorway for the trailer had a metal frame, but this frame was not part of the electrical system or an electrical component. The inspector’s interpretation of the safety standard to require bushings or other protection whenever cables “go through metal” is incorrect. In any event, the cables did not “go through metal” at this location. The cables were substantially protected with an outer jacket and insulating material around the conductors inside. The door to the trailer could not be closed because there was a metal landing at the doorway that would prevent the door from closing. (Tr. 180). There was no evidence that the cables were damaged or that vibrations were causing any wear on the cables. This citation is therefore vacated.

            H. Citation No. 6433229

            On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433229 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.11002, as follows:

The stairway accessing the generator trailer did not have handrails on the stairways. The landing at the top of the stairway had a handrail. The stairway elevates approx. from 0 ft. to approx. 5 ft. The stairs are used daily to access the generator that provides power to various equipment.

(Ex. G-8). The inspector determined that an injury was unlikely but that if an injury did occur it could result in lost workdays or restricted duty. He determined that the violation was not S&S and that Respondent’s negligence was low. Section 56.11002 provides, in part, that “[c]rossovers, elevated walkways, elevated ramps, and stairways shall be of substantial construction provided with handrails, and maintained in good condition.” The Secretary proposes a penalty of $100 for this citation.

            Inspector Eastwood testified that the cited stairways provided access to a landing for the generator trailer from each side. (Tr. 60). The elevated landing between the two stairways was equipped with a handrail. There were two steps on each stairway that were made of expanded metal inside a metal frame. (Ex. G-8). The stairways were of substantial construction. There was no handrail for these two stairways. The landing was about five feet off the ground and it was accessed at least twice a day. (Tr. 61-62). Inspector Eastwood was concerned that someone using the stairs could slip and fall. If someone were to fall away from the trailer while on the stairs he could fall ten feet to a lower area of the plant. (Tr. 63; Ex. R-8). Inspector Eastwood determined that the violation was not S&S because the landing had a handrail that could be reached from the stairs. Id. He determined that Respondent’s negligence was low because of the presence of the handrail for the landing and because the condition had existed through several MSHA inspections.

            Mr. Holcomb testified that employees use the upright supporting the handrail on the landing to provide stability while walking up or down the stairs. (Tr. 184). There have been no slips or falls at this location.

            I find that the Secretary established a violation. Although the upright for the handrail around the landing provided some measure of safety, the stairs themselves were not provided with handrails as required by the safety standard. Handrails or other means of support would be especially important if an employee were walking down the stairs carrying supplies or materials. The citation is affirmed as written. A penalty of $50 is appropriate.

            I. Citation No. 6433230

            On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433230 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:

The return roller on the VSI exit conveyor belt was not guarded. The roller was approx. 4 ft. above ground level. Employees access the area of the roller to clean up under the conveyor belt. The conveyor belt was not running at the time of the inspection.

(Ex. G-9). The inspector determined that an injury was unlikely but that if an injury did occur it could be permanently disabling. He determined that the violation was not S&S and that Respondent’s negligence was moderate. The Secretary proposes a penalty of $873 for this citation.

            Inspector Eastwood testified that a return roller on the VSI exit conveyor belt was not guarded. (Tr. 70). The roller was about 4 feet above the ground. He testified that miners will occasionally clean up accumulations under this belt in the vicinity of the roller. An employee or his clothing could become entangled between the belt and the unguarded roller. In such an event, he could be pulled into the pinch point and sustain a serious injury. (Tr. 71; Ex. G-9). He determined that an injury was unlikely because the area is cleaned only once or twice a year. An excavator is typically used to clean up accumulations in the area.

            Mr. Holcomb testified that employees do not work around this conveyor while it is operating. (Tr. 189). Any accumulations are cleaned out first thing in the morning before the plant is operating. (Tr. 190). After the plant starts operating, the employees are operating an excavator or a loader; they are “not wandering around.” Id.

            Holcomb & Company argues that this roller had existed in the same location since at least 2005 and had never been cited by an MSHA inspector. It contends that it had not been given fair notice that this condition might be a violation of the safety standard. (Resp. Br. 13). If the citation is not vacated, the negligence should be reduced to low because of the mitigating circumstances testified to by the inspector. It also argues that the quarry was not operating at the time the citation was issued and that uncontradicted evidence establishes the miners are never in the cited area while the belt is running.

            The Secretary counters the operator’s notice argument by observing that the conditions under the roller will be different during each MSHA inspection. Indeed, Inspector Eastwood warned Holcomb & Company that a change in conditions under the roller could result in a citation. He issued this warning during an inspection in December 2007. At that time the return roller was “pretty much at ground level” because of the accumulation of material at that location. (Tr. 73). The Secretary also contends that the fact the quarry was not in a production mode when the citation was issued is not relevant.

            I find that the citation should be affirmed as written. Holcomb & Company was previously warned that the cited return roller could possibly be cited if it were high enough above ground level. Respondent’s “fair notice” and negligence arguments are not well founded. I also conclude that the fact that the quarry was not in production at the time of Eastwood’s inspection, so that subject conveyor belt was not operating, is not determinative. The operator had shut down operations for about two weeks to conduct maintenance. Holcomb & Company did not allege that it was planning to install a guard at this location as part of the scheduled maintenance. Equipment and facilities that are available for use by miners must be maintained in compliance with applicable safety standards and are subject to inspections whether or not they are actually being used at the time. See, e.g., Ideal Basic Ind., Cement Div., 3 FMSHRC 843 (Apr. 1981) (equipment located in a normal work area and capable of being used must be in compliance with safety standards). A penalty of $75 is appropriate.

            J. Citation No. 6433231

            On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433231 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:

The return roller on the 1 1/4 inch chip conveyor belt was not guarded. The return roller was approx. 6 ft. 6 inches above ground level. It was located in an area accessible by anyone working in the area. The conveyor belt was not running at the time of the inspection.

(Ex. G-10). The inspector determined that an injury was unlikely but that if an injury did occur it could be permanently disabling. He determined that the violation was not S&S and that the Respondent’s negligence was moderate. The Secretary proposes a penalty of $873 for this citation.

            Inspector Eastwood testified that the return roller was in a location that was accessible to miners. (Tr. 77). His testimony with respect to this citation was similar to that of the previous citation, except that this roller was 6 feet 6 inches above the ground level. (Tr. 77-80). The inspector was concerned that, if material built up under the conveyor were, the roller would be more accessible to miners. He had warned Respondent during his December 2007 inspection that he would cite the roller if it was less than seven feet above the ground. (Tr. 80). Mr. Holcomb testified that the inspector did not give him this warning. (Tr. 193). He also testified that employees do not walk in the cited area and that accumulations in the area are cleaned up using mobile equipment. (Tr. 194; Ex. R-10).

            I find that the citation should be affirmed. Holcomb & Company was previously warned that the cited return roller could possibly be cited if it were less than six feet off the ground. I credit the testimony of Inspector Eastwood on this issue. The violation was not very serious because of the height of the roller. My findings and conclusions for this citation are the same as in the previous citation. A penalty of $75 is appropriate.

            K. Citation No. 6433233

            On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433233 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:

A return roller located on the under jaw conveyor belt was not guarded. The return roller was approx. 4 ft. above ground level and had recently been cleaned underneath it. The return roller was accessible to the employee cleaning underneath the conveyor belt.

(Ex. G-12). The inspector determined that an injury was reasonably likely and that if an injury did occur it could be permanently disabling. He determined that the violation was S&S and that Respondent’s negligence was moderate. The Secretary proposes a penalty of $4,329 for this citation.

            Inspector Eastwood testified that this condition was on a different belt from the two previous citations. (Tr. 92). As with the two previous citations, Inspector Eastwood testified that he warned Holcomb & Company in December 2007 that a citation would be issued if the roller remained unguarded and was at a height that exposed miners to a hazard. (Tr. 93, 97-98). The inspector determined that an injury was reasonably likely because he observed shovels in the area that led him to believe that someone had been cleaning up accumulations. (Tr. 94). On that basis, he determined that the violation was S&S.

            Mr. Holcomb testified that the area under this belt is cleaned with a shovel and with an excavator. He said the area is shoveled out every morning before the belts are started. (Tr. 205-06). He also said that a guard had been on the roller at this location but it had to be replaced because it ripped up the belt. (Tr. 208). The guard was being fabricated at the time of Inspector’s Eastwood’s March 2008 inspection. (208-09).

            I find that Holcomb & Company violated the safety standard because a guard was required at that location. I find, however, that an injury was not reasonably likely, the violation was not S&S, and Respondent’s negligence was low. The mere fact that shovels were in the area does not establish that an injury was reasonably likely. I credit the testimony of Holcomb that the area is shoveled out in the mornings before production begins. Thus, although an accident was possible at this location, it was not reasonably likely. I find that the operator’s negligence was low because a guard had been installed after MSHA’s December 2007 inspection, but it did not function correctly. Respondent was in the process of fabricating a new guard to replace the old one. The violation was serious. A penalty of $75 is appropriate.

            L. Citation No. 6433232

            On March 27, 2008, MSHA Inspector Eastwood issued Citation No. 6433232 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.11011, as follows:

The elevated walkway to access the control booth on the jaw crusher was unsafe. The walkway was sitting on the rock pile used to feed the crusher. The rock pile had eroded and the walkway was twisted down where it was not sitting on solid ground. A chain had been installed from the crusher frame to hold the walkway. The walkway was approx. 15 ft. above the ground and was approx. 25 ft. in length. The walkway had handrails and toe boards.

(Ex. G-11). The inspector determined that an injury was reasonably likely and that if an injury did occur it could be fatal. He determined that the violation was S&S and that Respondent’s negligence was high. Section 56.11001 provides that “[s]afe means of access shall be provided and maintained to all working places.” The Secretary proposes a penalty of $6,458 for this citation.

            Inspector Eastwood testified that the walkway was supported by feed material for the jaw crusher. (Tr. 83). This material had deteriorated with the result that the walkway was starting to lean out away from the crusher. Someone had attached a chain to the walkway to try to prevent the walkway from rolling over. The operator was taking material from the feed pile that was supporting the walkway to the feed hopper for the jaw crusher. Id. The jaw crusher operator would have to use this walkway several times a day. This person also operated the excavator used to feed the hopper with material. The walkway was about 15 feet above the ground and it was equipped with handrails. (Tr. 84). The walkway was sitting on a rock pile that was being undermined as the rock was removed to feed the hopper. (Tr. 85; Ex. R-9). The inspector was concerned that the walkway could collapse or roll down the hill. (Tr. 86).

            Based on the above, Inspector Eastwood determined that the violation was S&S because a serious injury or fatality was reasonably likely. Id. Someone could be killed if the walkway rolled and flipped because there was a vertical drop below the outer edge of the walkway. He determined that the negligence was high because the presence of the chain indicated that the operator knew about the hazard and failed to take adequate steps to correct it. (Tr. 87). The inspector admitted that Tim Holcomb advised him that when he noticed that the walkway was starting to sag earlier that day, he had shut down the jaw crusher and excavator to fix the walkway. (Tr. 90).

            Dennis Holcomb testified that Tim had run into the walkway with the track of his excavator on the day of the inspection. (Tr. 197-98). He shut down his excavator and went to get his tools. When he returned, Inspector Eastwood had arrived. (Tr. 198). Neither Tim nor any other employee had any need to use the walkway after the excavator was shut down. (Tr. 198-99). Dennis Holcomb testified that he installed the chain when the walkway was first placed there because he “knew, with the walkway sitting on that product there, that as we ate away at the pile, that some of that rock was going to fall down the hill.” (Tr. 199, 204). He said that he paid good money for the walkway and he did not want it to fall or get damaged. The walkway was safe when he installed it. Dennis Holcomb admitted that Tim had to walk across the walkway to shut down the jaw crusher after he hit the walkway with his excavator. (Tr. 203).

            Holcomb & Company argues that Tim Holcomb hit the walkway and was in the process of repairing it when the inspector arrived. Because the walkway would not have been used until it was repaired, it did not pose a hazard to anyone. It was not used for access while it was in the condition observed by Inspector Eastwood. (Resp. Br. 16).

            I find that the Secretary established an S&S violation of the safety standard. I credit the testimony of Inspector Eastwood. The conditions observed by the inspector establish that safe access was not provided to the jaw crusher. The fact that Dennis Holcomb used a chain to help support the walkway indicates that he knew that the walkway was in a precarious position. By excavating the rock under the walkway, the operator was removing the support for the walkway. When Tim Holcomb bumped the walkway with the excavator he made the condition worse, but a hazard was already present. The violation was S&S because it was reasonably likely that the hazard contributed to by the violation would have resulted in a very serious injury. I find that the negligence was moderate rather than high because I credit the testimony of Holcomb that his son Tim had begun the work to correct or at least mitigate the hazard. A penalty of $200 is appropriate.

            M. Citation No. 6433234

            On April 1, 2008, MSHA Inspector Eastwood issued Citation No. 6433234 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.12030, as follows:

The ground prong on the plug of the green and black extension cord had been cut off. The cord was plugged into the United Rentals Miller welder. The cord was not energized at the time of the inspection. The extension cord was laying [sic] in mud and water and had a burn in the outer insulation exposing the inner individual conductors. No bare conductors were visible.

(Ex. G-13). The inspector determined that an injury was reasonably likely and that if an injury did occur it could be fatal. He determined that the violation was S&S and that Respondent’s negligence was moderate. Section 56.12030 provides that “[w]hen a potentially dangerous condition is found it shall be corrected before equipment or wiring is energized.” The Secretary proposes a penalty of $1,944 for this citation.

            Inspector Eastwood testified that without the ground prong on the plug, any electrical equipment plugged into the extension cord would not be adequately protected in the event of a fault. (Tr. 100-01). The extension cord had been used for the grinder, as described in Citation No. 6433224 above. There was also a burn on the cord which exposed the inner conductors. The inspector testified that, because the extension cord was lying in the water and the ground prong was missing, there was a reasonable possibility that the person using the extension cord would suffer an electrical shock. (Tr. 102).

            Dennis Holcomb testified that Crist had used the extension cord when he used the grinder. (Tr. 209). He said that the cord had been hanging up in the shop to be repaired. He believes that he told Crist that anything hanging above the shop’s vice was there to be repaired. He further testified that there were three other extension cords in the shop available for use that were in safe condition. Holcomb & Company discharged Crist from his employment after this inspection.

            Respondent argues that the extension cord had been “taken out of service” and put in the shop for repair. Thus, Respondent recognized the hazard and removed the cord from service. The cord was used “by the same ‘cowboy’ who failed to wear fall protection and took it upon himself to use his own grinder without a shield.” (Resp. Br. 18). There were other extension cords available for use on the shop door. It should have been obvious to Crist that the ground plug was missing and that the cord itself was damaged.

            I affirm the violation and the inspector’s S&S determination. I find that Respondent’s negligence was low because it should have been obvious to Crist that the cord was not safe to use. Holcomb had other extension cords that could have been used. Crist was an hourly employee and his negligence should not be imputed to the operator. The Mine Act is a strict liability statute, however. A penalty of $50 is appropriate.

            N. Citation No. 6433235

            On April 1, 2008, MSHA Inspector Eastwood issued Citation No. 6433235 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), as follows:

The tail pulley on the under the jaw conveyor belt was not guarded on the bottom and back side of the tail pulley. The tail pulley was approx. 5 ft. above ground level. The sides were guarded. The area is not a highly traveled area and is cleaned with an excavator. There is no ground person work[ing] on the ground around the equipment.

(Ex. G-14). The inspector determined that an injury was unlikely but that if an injury did occur it could be permanently disabling. He determined that the violation was not S&S and that Respondent’s negligence was moderate. The Secretary proposes a penalty of $807 for this citation.

            Inspector Eastwood testified that the tail pulley on the jaw conveyor was not properly guarded. (Tr. 105). The sides of the tail pulley were well guarded, but the bottom and back side were not. He was concerned that someone working in the area could become entangled in the fast moving, self-cleaning, pulley. (Tr. 105-06). He did not consider that an accident was reasonably likely because the pulley was guarded on the sides.

            Mr. Holcomb testified that, as with the other tail pulleys at the mine, any cleaning with a shovel is performed at the beginning of the day before the plant is operating. (Tr. 210-11). As a consequence no hazard was present. In addition, this tail pulley has been inspected many times by MSHA inspectors and no citations have been issued. He also testified that the tail pulley is normally less than two feet above the ground. It is raised only when it is necessary to clean out accumulations with the excavator. (Tr. 212-13).

            As with previous guarding citations, Respondent argues that it did not receive fair notice that the bottom and back of the tail pulley was required to be guarded because it had never received a citation in the past for this condition. Employees do not work on the ground while the conveyor is running so there was no risk of injury from this condition.

            For the reasons discussed above with respect to other guarding citations, above, this citation is affirmed as written. The violation was not especially serious because the hazard was largely protected by location. A penalty of $75 is appropriate.

            O. Citation No. 6433237

            On April 1, 2008, MSHA Inspector Eastwood issued Citation No. 6433237 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14107(a), in part as follows:

The drive line and drive pulley and belts on the Detroit Diesel motor providing power for the jaw crusher were partially guarded. A section of approx. 18 inches could be accessed on the 3 inch drive line. The drive line had a slot for a shear pin machined into it. The drive line bolts onto a flange that connects to the drive pulley for the crusher. A hole had been cut in the original metal guard on the flange approx. 2 inches X 4 inches exposing the rapidly moving flange and flange bolts. Another hole had been cut in the guard approx. 6 inches X 4 inches allowing access to the rapidly spinning drive pulley. The owner Dennis Holcomb stated that the holes had been cut in the guard in order to grease the equipment.

(Ex. G-15). This citation was originally written under section 104(d)(1) but it was modified the following day by Inspector Eastwood to a section 104(a) citation. As modified, the inspector determined that an injury was reasonably likely and that if an injury did occur it could be permanently disabling. He determined that the violation was S&S and that Respondent’s negligence was moderate. The Secretary proposes a penalty of $29,529 for this citation.

            Inspector Eastwood testified as to the conditions he observed. (Tr. 110-22). The conditions he observed are shown on the photos he took. (Ex. G-15). The drive line shaft was partially guarded. (Tr. 111). An employee could access the area adjacent to the cited motor by climbing down a ladder on the jaw crusher to a platform that was 16 inches wide and 6 feet long. There were fixed ladders at either end of this platform. An employee had to climb down onto this platform to turn the motor off, check the oil, and perform maintenance. (Tr. 112). The shaft could be reached from this platform and, if an employee stumbled, he could get tangled up in the moving shaft. (Tr. 113).

            Two holes had been created in a guard adjacent to the shaft using a torch. (Tr. 113). The holes were 2 by 4 inches and 4 by 6 inches. These holes exposed a rapidly moving flange and a rapidly spinning drive pulley. (Tr. 114-15). Dennis Holcomb told the inspector that the holes had been cut in order to grease the equipment. (Tr. 116). As modified, the citation alleges that an injury was reasonably likely. The inspector was concerned that, because the rung on one of the adjacent ladders was loose, an employee could slip and his hand could enter one of the holes or come in contact with the moving shaft as he tried to brace himself. (Tr. 118-20). Because the platform was small and confined, it would be easy for someone to become entangled in the moving parts and be severely injured or killed. He considered the violation to be S&S. He admitted that the equipment had to be shut down to grease it. (Tr. 124). The operator of the jaw crusher has to travel to the platform to turn the motor off and on. (Tr. 125-26).

            Mr. Holcomb testified that when he purchased the equipment, the cited holes were already present. (Tr. 217). The partially-guarded shaft and holes were present during previous MSHA inspections. He testified that the moving machine parts were protected by their remote location. The shaft for example was protected by hydraulic hoses in the area. (Tr. 220). He admitted that the platform shakes as the jaw crusher is operating. (Tr. 223). Holcomb said that the guard would have to be removed to grease the machinery if the holes were not present. (Tr. 225). The guard weighs about 150 pounds. (Tr. 226). The excavator would need to be used to accomplish this. The condition was abated by placing a special guard over the existing guard and this extra guard is removed for greasing. Finally, he testified that the ladder with the broken rung was not used as a ladder but was used as a barrier or guard to prevent an employee from falling off that end of the platform. (Tr. 228).

            Holcomb & Company argues that it was unlikely that anyone would be able to access the shaft or the pulleys because they were guarded by location behind several hydraulic hoses and the clutch lever, as well as the heavy, substantial guard. (Resp. Br. 19). No maintenance or greasing occurs when the jaw crusher is operating. Respondent also makes the fair notice argument on the basis that the equipment has been in the same condition since it was purchased.

            I find that the Secretary established a violation. Whether the violation was S&S is a closer question. I credit the testimony of Mr. Holcomb that the exposure is not that great. Tim Holcomb and other employees are rarely on the platform when the jaw is operating. Greasing and other maintenance is performed with the equipment shut down. In addition, the drive shaft and openings are partially protected by location. I also credit the testimony of Mr. Holcomb that the cited ladder is rarely if ever used to access the platform. On this basis, I find that it was not reasonably likely that the hazard contributed to by the violation would have led to an injury. The violation was serious, however, because if someone were injured by the moving machine parts, he could experience significant trauma. I also find that Respondent’s negligence was moderate to low because the violation was not obvious and it had not been previously cited by MSHA. A penalty of $200 is appropriate.

            P. Citation No. 6433238

            On April 1, 2008, MSHA Inspector Eastwood issued Citation No. 6433238 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.11003, in part as follows:

The metal fixed ladder to access the Detroit diesel motor that provides power to the jaw crusher had the top rung unsecured on the right hand side of the ladder. The weld had broken loose on the rung and it had separated from the framework of the ladder. The ladder was approx. 3 ft in length and accessed a walkway along the side of the motor.

(Ex. G-16). The inspector determined that an injury was reasonably likely and that if an injury did occur it could be fatal. He determined that the violation was S&S and that Respondent’s negligence was moderate. The safety standard provides that “[l]adders shall be of substantial construction and maintained in good condition.” The Secretary proposes a penalty of $1,944 for this citation.

            Inspector Eastwood testified that the top rung of the ladder had become “unwelded” on one side and was no longer attached to the right side of the ladder. (Tr. 128). He testified that someone has to go down that ladder to turn on the diesel engine that operates the jaw crusher. He believed that it was reasonably likely that someone would be injured while descending the ladder. The rung would give way and the person would fall to the platform and could hit his head. A person could also come into contact with the moving machine parts discussed in the previous citation. (Tr. 132). He determined that the negligence was moderate because Dennis Holcomb did not know that the ladder was broken and the ladder is not used that often.

            Mr. Holcomb testified that the ladder in question was not used to get to the platform. Instead, it was used as a barrier to keep anyone from falling off the end of the platform. (Tr. 231). It was placed there at the request of an MSHA inspector. Indeed, the MSHA inspector was present when the ladder was welded in place. Id. This ladder was never used to get to the platform. (Tr. 233).

            The Secretary argues that the cited ladder was available for use as a ladder and that in Respondent’s answer to the petition for assessment of penalty, it stated that the “rung on the ladder needed to be welded and was on the repair list. . . .” (Ex. G-21). Respondent argues that the ladder was used as a barrier and was not used to get to the platform. Employees accessed the platform using the ladder at the other end of the platform. (Resp. Br. 21). In addition, the “ladder” had only two rungs and if someone were to slip, it was unlikely that he would sustain a serious injury.

            I find that the Secretary established a violation but that the violation was not S&S. I credit the testimony of Holcomb that the ladder was rarely if ever used. It was placed there to prevent anyone from falling off the edge of the platform. It was not reasonably likely that the condition would contribute to an injury. The violation was not very serious. Respondent’s negligence was low. A penalty $50 of is appropriate.

            Q. Citation No. 6433239

            On April 2, 2008, MSHA Inspector Eastwood issued Citation No. 6433239 under section 104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.12016, in part as follows:

The Detroit diesel motor that powers the jaw crusher was not locked or tagged before an employee worked on it. The employee had removed the guarding on the fan, fan belts alternator, and alternator belt to work on the alternator. The employee did not lock out or put a tag on the motor saying who was working on the motor or what date the motor was being worked on.

(Ex. G-17). The inspector determined that an injury was reasonably likely and that if an injury did occur it could be permanently disabling. He determined that the violation was S&S and that Respondent’s negligence was moderate. The Secretary proposes a penalty of $873 for this citation.

            Inspector Eastwood testified that Tim Holcomb had removed a guard from the diesel motor and was working on the motor without locking or tagging out the motor in violation of the safety standard. (Tr. 134). The key was in the ignition so any employee could have started the motor while Tim was working on it. The inspector testified that Tim should have removed the key from the ignition and kept it in his pocket. He should have also tagged the diesel motor out to show that he was working on it. The inspector believed that a serious injury was reasonably likely because the guard for the fan on the generator had been removed exposing the moving parts.

            Mr. Holcomb testified that nobody other than Tim had the authority to start the diesel motor. He also testified that he wants employees to keep the key in the ignition so the key does not get lost. (Tr. 235). The key is always kept in the ignition.

            I affirm this citation as written by Inspector Eastwood. Lockout and tagout procedures are crucial because miners can be seriously injured or killed when an employee turns on machinery or equipment while someone else is working on it. Mr. Holcomb can make a duplicate key that he keeps in his possession if he is concerned that someone could lose it. A penalty of $200 is appropriate.

III. APPROPRIATE CIVIL PENALTIES

            Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an appropriate civil penalty. Holcomb & Company had a history of eleven paid citations prior to the March/April 2008 inspection. (Ex. G-18). Only two of these citations were designated as S&S. Holcomb & Company is an extremely small operator. It employed four people in 2008 and three people in 2010, including Dennis and Tim Holcomb. The total number of hours worked by all employees in 2008 was 8,345. In 2010, the total hours worked was 4,198. It currently employs two people. Holcomb & Company is a sole proprietorship that is not affiliated with any other operator. I have reduced the penalties substantially based on the very small size of the operator. Evidence of an operator's financial condition is relevant to the ability to continue in business criterion. See Unique Electric, 20 FMSHRC 1119, 1122-23 (Oct. 1998). Respondent submitted its profit and loss statement for 2009, which showed a net annual income of $6,661. (Ex. R-20). Its net profit for 2008 was about $21,000 and it showed a net loss between January and July 2010. (Exs. R-19, R-21). I have taken into account Respondent’s financial condition when considering the ability to continue in business criterion. (Tr. 246-50). The violations were abated in good faith. The gravity and negligence findings are set forth above.

IV. ORDER

            Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the following civil penalties:

            Citation No.                                        30 C.F.R. §                             Penalty

WEST 2008-1113-M

              6433221                                             56.15005                                  $600.00

              6433222                                             56.11004                                  Vacated

              6433223                                             56.14107(a)                               100.00

              6433224                                             56.14107(a)                               100.00

              6433226                                             56.14112(b)                             Vacated

              6433227                                             56.12016                                    500.00

              6433228                                             56.12008                                  Vacated

              6433230                                             56.14107(a)                                 75.00

              6433231                                             56.14107(a)                                 75.00

              6433232                                             56.11001                                    200.00

              6433233                                             56.14107(a)                                 75.00

              6433234                                             56.12030                                      50.00

              6433237                                             56.14107(a)                               200.00

              6433238                                             56.11003                                      50.00

              6433239                                             56.12016                                    200.00

WEST 2008-1114-M

              6433229                                             56.11002                                      50.00

WEST 2008-1196-M

              6433235                                             56.14107(a)                                 75.00

                                                                        TOTAL PENALTY             $2,350.00

            For the reasons set forth above, Citation Nos. 6433222, 6433226, and 6433228 are VACATED and the other citations are AFFIRMED or MODIFIED as set forth above. D. Holcomb and Company is ORDERED TO PAY the Secretary of Labor the sum of $2,350.00 within 40 days of the date of this decision.

                                                                        Richard W. Manning

                                                                        Administrative Law Judge

Distribution:

Matthew Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue, Suite 945, Seattle, WA 98101-3212 (Certified Mail)

Merrily Munther, Esq., Munther Goodrum, Chartered, 1161 West River Street, Suite 350, Boise, ID 83702 (Certified Mail)

RWM