.
NELSON BROTHERS QUARRIES
Docket No. CENT 2002-65-M
November 19, 2002
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
601 New Jersey Avenue, N.W., Suite 9500
Washington, DC 20001
November 19, 2002
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 2002-65-M
Petitioner : A.C. No. 23-02207-05503
:
v. : Docket No. CENT 2002-184-M
: A.C. No. 23-02207-05505
NELSON BROTHERS QUARRIES, :
Respondent : Jasper Quarry
CONSOLIDATION ORDER
AND
DECISION
Appearances: Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for the Petitioner;
Paul M. Nelson, President, Nelson Brothers Quarries, Jasper,
Missouri, for the Respondent.
Before: Judge Feldman
The hearing in these proceedings was conducted in Springfield, Missouri on July
23, 2002. As a preliminary matter, at the hearing the Secretary, in the
interest of judicial economy, moved to consolidate the civil penalty proceeding
in Docket No. CENT 2002-65-M, that had previously been scheduled for hearing,
with the civil penalty case in Docket No. CENT 2002-184-M. The Secretary's
motion was granted on the record. Accordingly, these civil penalty matters ARE
CONSOLIDATED.
These matters concern petitions for assessment of civil penalty filed pursuant
to section 110(a) of the Federal Mine Safety and Health Act of 1977 (the Mine
Act), 30 U.S.C. � 820(a), by the Secretary of Labor (the Secretary), against the
respondent, Nelson Brothers Quarries (Nelson Brothers). The petitions seek to
impose a total civil penalty of $1,798.00 for nine alleged violations of the
mandatory safety standards in 30 C.F.R. Part 56 of the Secretary's regulations
governing metal and nonmetal surface mines that were cited by MSHA Inspector
Wesley Lee Hackworth. Only one of the nine alleged violative conditions was
characterized as significant and substantial (S&S) in nature. A violation is
properly designated as S&S if it is reasonably likely that the hazard
contributed to by the violation will result in an illness or injury of a
reasonably serious nature. National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
The Secretary issued 104(b) withdrawal orders for eight of the nine cited
violations in these proceedings. Section 104(a) of the Mine Act, 30 U.S.C. �
814(a), provides, in pertinent part, that a citation issued for an alleged
violation of the Secretary's mandatory safety standards ". . . shall fix a
reasonable time for the abatement of the [cited] violation." Section 104(b) of
the Mine Act, 30 U.S.C. � 814(b), authorizes the Secretary to issue an order
requiring the mine operator to immediately withdraw all persons affected by the
cited violative condition if the condition is not totally abated within the time
period originally set forth, or subsequently extended, by the Secretary.
I. Pertinent Penalty Criteria
This decision applies the statutory civil penalty criteria in section 110(i) of
the Act, 30 U.S.C. � 820(i), to determine the appropriate civil penalty to be
assessed. In this regard, section 110(i) provides, in pertinent part:
The Commission shall consider the operator's history of previous violations, the
appropriateness of such penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to achieve rapid
compliance after notification of a violation.
Commission judges make de novo findings with respect to the penalty criteria in
section 110(i) based on the record in adjudicatory proceedings, and they are not
bound by the Secretary's proposed civil penalties. Sellersburg Stone Co., 5
FMSHRC 287, 291 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984). Separate
civil penalties are not assessed for 104(b) withdrawal orders. Notwithstanding
the de novo nature of these proceedings, it is worth noting that, in instances
where 104(b) orders are issued, the Secretary does not apply the 30% proposed
penalty reduction the operator ordinarily would receive for good faith abatement
efforts.
Applying the general statutory penalty criteria, Nelson Brothers is a small mine
operator with only two or three employees. The parties have stipulated that
Nelson Brothers is subject to the jurisdiction of the Mine Act. (Joint Stip.,
Ex. 1; Tr. 8). Nelson Brothers has an excellent compliance history in that
there is no evidence of any history of violations since operations began at the
Jasper Quarry in July 2000. Id. It is not contended that the total $1,798.00
civil penalty proposed by the Secretary will negatively impact Nelson Brothers'
ability to continue in business. The Secretary has stipulated that Nelson
Brothers does not have a relevant history of failing to timely abate citations
in that only one 104(b) order was issued during the previous 13 years at any of
the mine facilities it has operated. (Tr. 86). The propriety of the 104(b)
orders that are in issue in these matters is discussed below.
II. Contest of the 104(b) Orders
Section 105(d) of the Mine Act requires a mine operator to contest a citation or
order within 30 days of its issuance. 30 U.S.C. � 815(d). Alternatively,
section 105(a) permits an operator to postpone its contest of a citation or
order until 30 days after the issuance of the proposed assessment of a civil
penalty. 30 U.S.C. � 815(a). The Secretary asserts that 104(b) orders that
are not immediately contested pursuant to section 105(d) are not subject to
challenge in a civil penalty proceeding under 105(a) because they do not contain
special findings. The term "special findings" refers to facts alleged in a
citation or order under section 104(d) that could expose a mine operator to a
possible withdrawal order before a penalty could be proposed. 30 U.S.C.
� 814(d); Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.10 (Sept. 1987).
Commission Rule 20 and Commission Rule 21 implement the statutory provisions of
sections 105(d) and (a), respectively. Commission Rule 20 requires an operator
to file a notice of contest with the Secretary ". . . within 30 days of receipt
by the operator of the contested citation or order. . . ." 29 C.F.R.
�� 2700.20(a)(iii) and 27.00.20(b). Alternatively, under Rule 21, the operator
may decline to immediately contest a citation or order, but rather wait to
challenge "the fact of violation or any special findings contained in the
citation or order . . .," including assertions of S&S and unwarrantability.
(Emphasis added). 29 C.F.R. � 2700.21.
Significantly, the Mine Act does not permit the Commission to stay the abatement
requirements of a citation during litigation. 30 U.S.C. �� 814(b) and (h),
815(b)(1)(A) and (B)(2). Thus, absent exceptional circumstances that may warrant
an expedited hearing, the vast majority of 104(b) orders are abated long before
a civil penalty is proposed. In such cases where abatement has occurred, the
Commission long ago recognized that the operator may have no need to immediately
file a notice of contest, and that it understandably may wait to challenge the
citation or order until the civil penalty phase. Energy Fuels Corporation, 1
FMSHRC 299, 307 (May 1979). However, the Commission also noted, if continued
abatement was expensive, an operator may desire an early hearing to contest the
validity of the cited violation in an effort to eliminate the continued need for
abatement. Id.
In Energy Fuels, the Secretary sought to preclude the operator, who had abated a
citation that contained special findings of S&S and unwarrantable failure,[1]
from immediately contesting the citation. Id. at 299. Ironically, in Energy
Fuels, the Secretary urged the Commission that "sound adjudicative practice
mandates that piecemeal adjudications be avoided, and that all issues in a case
[should] be tried simultaneously." Id. at 306. Although Energy Fuels, held
that an operator has a statutory right to an immediate contest, even if a
citation has been abated, the Commission noted, absent a need for an immediate
hearing, it is preferable for operators to postpone contests until a penalty is
proposed. Id. at 308.
While Energy Fuels involved a contest of a citation with special findings, there
is no substantive difference in the current proceedings with respect to the goal
of avoiding inefficient and repetitive litigation. In fact, the Commission
already has rejected the Secretary's proffered interpretation of section 105
that operators are statutorily required to file a contest rather than waiting to
challenge citations or orders in a civil penalty proceeding. Quinland Coals, 9
FMSHRC at 1620. In Quinland Coals the Commission stated:
The contest provisions of section 105 are an interrelated whole. We have
consistently construed section 105 to encourage substantive review rather than
to foreclose it. See, e.g., Energy Fuels Corp., 1 FMSHRC 299, 309 (May 1979).
The statutory scheme for review set forth in section 105 provides for an
operator's contest of citations, orders, and proposed assessment of civil
penalties. Generally, it affords the operator two avenues of review. Not only
may the operator "contest" a citation or order within 30 days of receipt
thereof, 30 U.S.C. � 815(d), but he also may initiate a contest following the
Secretary's subsequent proposed assessment of a civil penalty within 30 days of
the Secretary's notification of the penalty proposal. 30 U.S.C. � 815(a).
. . . .
There is no dispute that the fact of violation may be placed in issue by the
operator in a civil penalty proceeding regardless of whether the operator had
availed itself of the opportunity to contest the citation or order in which the
allegation of violation is contained. The Commission also has held that the
procedural propriety of the issuance of a withdrawal order does not affect the
allegation of a violation contained in the order. Island Creek Coal Co., 2
FMSHRC 279, 280 (February 1980); Van Mulvehill Coal Co., 2 FMSHRC 283, 284
(February 1980). The allegation of violation survives and if proven must be
subject to the assessment of a civil penalty. 30 U.S.C. � 820(a); Tazco, Inc.,
3 FMSHRC 1895, 1896-98 (August 1981); See also Co-op Mining Co., 2 FMSHRC 3475,
3475-76 (December 1980). Similarly, since the alleged violation survives,
findings incidental to the violation survive as well.
9 FMSHRC at 1620-22. (Footnote omitted).
In the final analysis, the subject withdrawal orders were issued pursuant to
section 104 of the Mine Act. Commission Rule 21 broadly provides that the
failure to contest an "order issued under section 104 of the Act" does not
preclude challenging the order in a civil penalty proceeding. By its terms, Rule
21 does not limit its applicability only to certain orders issued pursuant to
section 104. Rather, Rule 21 expressly permits challenge of an order where the
fact of violation is questioned. The fact of a violation and findings
incidental to the violation are fundamental issues in a 104(b) challenge.
Obviously, if the underlying violation is not supported by the facts, the 104(b)
order lacks validity. Consequently, neither section 105 nor the Commission's
Rules preclude Nelson Brothers' from challenging the validity of the subject
orders in these civil penalty proceedings.
Notwithstanding the above discussion, the Secretary's assertion that a 104(b)
challenge is precluded in a civil penalty proceeding is inconsistent with the
Secretary's assessment procedures. The Proposed Assessments that serve as the
basis for these proceedings, issued by MSHA's Office of Assessments, cite civil
penalties for the subject eight combined 104(a) citations and 104(b) orders.
The Proposed Assessments specify that there is a 30 day period to contest the
proposed assessments. Nothing in the Proposed Assessments reflects that an
operator is precluded from challenging the listed 104(b) orders.
III. Criteria for 104(b) Orders
Section 104(a) of the Mine Act provides that a citation issued by the Secretary
". . . shall fix a reasonable time for the abatement of the [cited] violation."
30 U.S.C. � 814(a). Section 104(b) provides that if on follow-up inspection the
Secretary finds:
(1) that a violation described in a citation issued pursuant to subsection (a)
has not been totally abated within the period of time as originally fixed
therein or as subsequently extended, and (2) that the period of time for the
abatement should not be further extended, [she] shall . . . promptly issue an
order requiring the operator . . . to immediately cause all persons [affected] .
. . to be withdrawn . . . until . . . the Secretary determines that such
violation has been abated.
In contesting a 104(b) order, the operator may challenge the reasonableness of
the time set for abatement, or, the Secretary's failure to extend that time.
Energy West Mining Company, 18 FMSHRC 565, 568 (April 1996) (citations omitted).
Neither the Mine Act nor the legislative history address the extent of an
inspector's inquiry into whether an extension of the abatement period should be
granted. Id. at 569. The Commission has recognized that whether or not to
extend the time for abatement is committed to the Secretary's enforcement
discretion. Id. Therefore, in reviewing an operator's challenge to the
Secretary's failure to extend an abatement period, the proper inquiry is whether
the mine inspector abused his discretion in issuing the 104(b) order. Id. In
addressing this question, the Commission has noted that a considerable body of
precedent, arising under the 1969 Coal Act and continuing under the 1977 Mine
Act, has recognized that the degree of danger that any extension of abatement
time would cause miners is a relevant factor in determining whether such an
extension should have been granted. Clinchfield Coal Co., 11 FMSHRC 2120, 2128
(November 1989).
In these proceedings, seven of eight 104(b) withdrawal orders prosecuted by the
Secretary were issued for failure to timely abate violations that were
characterized as non-significant and substantial because they were not
reasonably likely to contribute to an injury. In order to prevail, in instances
where the cited unabated violation lacks gravity, the Secretary must show a lack
of diligence by the operator in attempting to meet the Secretary's abatement
schedule. Youghiogheny and Ohio Coal Company, 8 FMSHRC 330, 339 (March 1986)
(ALJ) citing Consolidation Coal Company, BARB 76-143 (1976).
Ordinarily, I would be reluctant to interfere with the Secretary's broad
discretion to issue 104(b) orders because such orders are an effective method of
achieving compliance. However, the harsh withdrawal sanction in 104(b) orders
normally is reserved for instances where operators fail to timely abate
hazardous conditions. When 104(b) orders casually are issued for non-hazardous
conditions, as they were in seven instances in these proceedings, the
effectiveness of such withdrawal orders is undermined.
Moreover, the initial two day abatement period established for abating the
numerous citations issued by inspector Hackworth was illusory. Thus, the
"extensions" of the initial two day termination period fixed in the 104(b)
orders in issue were, in effect, the only termination dates established for
abatement. While I recognize that Nelson Brothers could have demonstrated
greater zeal in its efforts to abate some of the numerous cited non-hazardous
conditions, the refusal to extend termination dates, even in instances where
some abatement efforts had been performed, demonstrates a regrettable lack of
restraint by the Secretary.
IV. Background
Nelson Brothers Quarries is a corporation that operates the Jasper Quarry, a
small surface limestone facility located in Jasper, Missouri. Paul M. Nelson is
the President and his brother John B. Nelson is the Vice-President.[2] The
quarry operates only during daylight hours and there are no lights illuminating
the facility. The quarry normally employs two or three people. Nelson and mine
foreman Ralph Carter were the only individuals operating equipment at the quarry
when the mine was inspected in March 2001. (Tr. 37). Hackworth testified there
was a third employee who was sometimes at the quarry during subsequent
inspections. (Tr. 18-19).
Limestone extraction is accomplished by blasting in the quarry pit. During
March 2001, Nelson operated a 560 Hough pay loader to load the limestone removed
from the pit into a haulage truck. Nelson then drove the haulage truck from the
pit to the crusher where the material was crushed and screened. After the
limestone was processed, Carter operated a Caterpillar 966B front-end loader to
stockpile the finished product and load the product into customer trucks.
V. Findings and Conclusions
A. Docket No. CENT 2002-65-M
1. Citation No. 6205054 and 104(b) Order No. 6205167
Inspector Hackworth arrived at the Jasper Quarry on March 13, 2001, to perform a
routine inspection. Hackworth was accompanied by Nelson. Hackworth inspected
the Hough 560 pay loader that normally was operated by Nelson in the pit.
Hackworth determined the brakes on the pay loader were functioning properly.
However, Hackworth noted the back-up alarm did not operate when the vehicle was
put in reverse. Nelson admitted that the back-up alarm had not been working for
approximately one week. (Tr. 21). Nelson told Hackworth that he had purchased
the necessary replacement switch required to activate the alarm although he had
not yet installed it. (Tr.23).
As a result of Hackworth's observations, he issued Citation No. 6205054 citing a
violation of the mandatory safety standard in 30 C.F.R. � 56.14132(a) that
requires audible warning devices on mobile equipment to be maintained in
functional condition. Hackworth attributed the inoperative warning device to a
high degree of negligence because Nelson had not repaired the condition despite
his awareness of it. Hackworth concluded the inoperative back-up alarm was not
reasonably likely to contribute to an injury because Nelson used the loader to
fill the haulage truck before he exited the loader to drive the truck to the
crusher. Consequently, no one in the pit was exposed to being struck by the
loader. Thus, Hackworth determined the cited condition was non-significant and
substantial. (Tr. 25-26, 45).
Hackworth gave Nelson Brothers two days to repair the back-up alarm. Thus,
Hackworth specified March 15, 2001, as the termination date for Citation No.
6205054. Hackworth returned to the mine on April 19, 2001, and found that the
back-up alarm had not been repaired. Hackworth extended the termination date
until April 26, 2001, because additional time was required to complete
installation of the new switch. Installation involved rewiring from the switch
to the audible warning horn located on the rear of the loader.
Hackworth returned to the quarry on May 16, 2001, and observed that, although
Nelson had installed wiring from the switch to the vicinity of the horn at the
back of the vehicle, the wiring remained unconnected and the horn still was not
functional. Consequently, Hackworth issued 104(b) Order No. 6205167 requiring
the immediate withdrawal from service of the Hough pay loader until the back-up
alarm was repaired. Hackworth terminated the 104(b) order on May 30, 2001,
after he determined the warning device had been repaired and the pay loader was
returned to service.
With respect to the degree of negligence, Hackworth stated he considered the
negligence to be high because the condition was permitted to exist for
approximately one week. However, as discussed above, Hackworth admitted there
really was no hazard caused by the inoperable warning device because Nelson was
alone in the pit. (Tr. 47).
In challenging the reasonableness of the abatement period, it is significant
that Hackworth conceded he issued 26 citations March 13, 2001, and, that
virtually all of the cited conditions initially had March 15, 2001, as the
termination date. (Tr. 177). Most of the cited conditions were non-S&S in
nature. Hackworth admitted a two day termination period may not have been
realistic for all of the cited conditions, particularly when there were only two
employees present at the mine site to correct the conditions. (Tr. 40-41). The
Secretary seeks to minimize the apparent burden placed on Nelson Brothers to
abate all the cited conditions within two days by explaining that: "Only twenty-
two citations required that further action be taken to abate the violations
(emphasis added)." (Sec. Br., p.1).
Both Carter and Nelson testified that the repair delay occurred because the
existing wiring kept shorting out the switch. To repair the condition a new
switch had to be ordered and new wiring had to be installed. (Tr. 53-55,
62-63).
As a threshold matter, Nelson admits the back-up alarm on the Hough loader was
inoperable. Consequently, the fact of the violation is not in dispute. With
respect to the degree of negligence, the Secretary does not argue that the back-
up alarm was inoperable for considerably more than the one week period asserted
by Nelson Brothers. Thus, the question is whether Nelson's failure to attempt
to make the necessary repair within one week, alone, constitutes high
negligence.
In evaluating the degree of negligence, it is instructive to focus on the
foreseeability and degree of risk posed to mine personnel by the violative
conduct. Here, the Secretary concedes that the violation exposed no one to a
risk of injury. Thus, the Secretary's reliance on Nelson Brothers' one week
delay in addressing the inoperable back-up alarm does not provide a basis for
demonstrating high negligence. Rather, the degree of negligence attributable to
Nelson Brothers for this non-significant and substantial violation is moderate.
With respect to 104(b) Order No. 6205167, the initial March 15, 2001,
termination date was illusory given the fact that it is undisputed that 22
citations had to be abated in two days by only two employees.[3] Thus, the
April 26, 2001, extended termination date was, in reality, the initial
termination date. Hackworth's failure to extend the termination date further
must be viewed in the context of the non-hazardous nature of the violation, and
Nelson Brothers' demonstrated efforts to rewire the back-up alarm switch. Under
these circumstances, Hackworth's failure to grant a reasonable extension of the
abatement period constitutes an abuse of discretion. Accordingly,104(b) Order
No. 6205167 shall be vacated. In view of the above, 104(a) Citation No. 6205054
is affirmed. The Secretary seeks to impose a civil penalty of $371.00 for the
combined citation and 104(b) withdrawal order. As previously noted, the
Secretary explained that when a 104(b) order is issued, the 30 % reduction in
proposed civil penalty for good faith abatement is inapplicable. (Tr. 36-37).
Considering the low gravity, moderate negligence, and the vacated 104(b) order,
a civil penalty of $75.00 shall be assessed for Citation No. 6205054.
2. Citation No. 6205055 and 104(b) Order No. 6205168
Hackworth also noted that there were no windshield wipers or front lights on the
Hough loader. He also determined that the air pressure gauge on the loader was
inoperable. As a consequence of his observations, Hackworth issued Citation No.
6205055 citing a violation of the mandatory standard in 30 C.F.R. � 56.14100(b).
This safety standard provides, in pertinent part, that: "Defects . . . that
affect safety shall be corrected in a timely manner to prevent the creation of a
hazard to persons." (Emphasis added). Hackworth concluded the cited conditions
were unlikely to contribute to an injury. Thus, he characterized the violation
as non-S&S in nature. Hackworth attributed the violation to a moderate degree
of negligence.
Broadly worded safety standards such as section 56.14100(b) must apply to a
myriad of circumstances. Kerr McGee Corp., 3 FMSHRC 2496, 2497 (November 1981).
That is why the applicability of such standards must be analyzed on a case-by-
case basis. Here, as discussed below in the next citation, Hackworth cited the
Hough loader for not having a windshield. Putting aside the issue of the
propriety of a missing windshield, the fact remains that the failure to have
windshield wipers on a vehicle that does not have a windshield is not a safety
defect.
With respect to front headlights, it is undisputed that there are no lights
installed at the Jasper Quarry and there are no mine operations at the mine site
after dark. Front-end loaders normally travel at the quarry at speeds of
approximately three to five miles per hour. (Tr. 128). Depending on their
intended use, front-end loaders are not always manufactured and equipped with
headlights. (Tr. 92-95; Resp. Exs. 1, 2). I recognize that it can be argued
that headlights may be useful at dusk. However, headlights under these
circumstances may encourage hazardous operation after quarry operations should
cease because the quarry is not illuminated.
The Secretary, assuming that quarry operations would occur during extremely
foggy conditions, asserts that such conditions also require headlights.
However, given Nelson Brothers' limited daylight hours of operation, neither the
remote possibility of severe fog enveloping the quarry, nor a total eclipse of
the sun, provide an adequate basis for concluding an absence of front-end loader
headlights is a "defect affecting safety" under section 56.14100(b). It should
be noted, I am not suggesting that headlights on front-end loaders are not
prudent. I simply am concluding that they are not required by the terms of
section 56.14100(b). If the Secretary wishes to require that all mobile
equipment must have operational headlights, even if the equipment is operated in
surface mines only during daylight hours, she should do so in a notice and
comment rule making proceeding.
Finally, Citation No. 6205055 cites an inoperable air pressure gauge. Nelson
Brothers asserts without contradiction, that the brake system on the Hough
loader is designed to release the parking brake at 45 PSI and release the
service brake at 70 PSI. Thus, Nelson Brothers maintains that a sudden loss of
air pressure would bring the loader to a halt. Consequently, Nelson Brothers
argues that the inoperable air pressure gauge is not a defect affecting safety.
Unlike the absence of windshield wipers and headlights that are not necessary
under the circumstances of this case, Nelson Brothers has failed to demonstrate
that the air pressure gauge provided by the manufacturer is superfluous.
Although the absence of an air pressure reading is unlikely to result in
catastrophic brake failure, the Secretary has not characterized this condition
as likely to contribute to injury. Although injury is an unlikely consequence,
I cannot conclude that an inoperable air pressure gauge does not affect safety.
However, the non-functioning air pressure gauge is indicative of low rather than
moderate negligence. Accordingly, Citation No. 6205055 is affirmed.
Hackworth initially specified March 15, 2001, as the termination date for
Citation No. 6205055. On April 19, 2001, Hackworth returned to the Jasper
Quarry and determined although the air gauge had been repaired, additional time
was required to complete the headlight and wiper installation. Consequently,
Hackworth extended the termination date until April 26, 2001. When Hackworth
returned on May 16, 2001, he found that, although wiring had been installed for
headlights, the headlights still were not operational. As a result, Hackworth
issued 104(b) Order No. 6205168 causing the Hough loader to immediately be
removed from service. The order was terminated on May 30, 2001, when Hackworth
determined the headlights and windshield wipers had been installed.
Nelson Brothers timely repaired the air pressure gauge. Since 104(b) Order No.
6205168 was issued for failure to timely abate the headlight and windshield
conditions that have been determined not to be violations, 104(b) Order No.
6205168 shall be vacated.
With respect to the appropriate civil penalty, the lack of gravity, low
negligence and timely abatement of the defective air pressure gauge warrant
reducing the $162.00 penalty initially proposed by the Secretary. Accordingly,
a civil penalty of $55.00 shall be assessed for Citation No. 6205055.
3. Citation No. 6205056 and 104(b) Order No. 6205169
As noted above, Hackworth also issued Citation No. 6205056 for an alleged
violation of 30 C.F.R. � 56.14103(b) because the front windshield and the left
side door glass were missing from the Hough loader. Section 56.14103(b)
provides:
If damaged windows obscure visibility necessary for safe operation, or create a
hazard to the equipment operator, the windows shall be replaced or removed.
Damaged windows shall be replaced if absence of a window would expose the
equipment operator to hazardous environmental conditions which would affect the
ability of the equipment operator to safely operate the equipment. (Emphasis
added).
In apparent recognition of the condition precedent, i.e., that windows must be
installed if they expose the equipment operator to hazardous environmental
conditions, Hackworth stated in Citation No. 6205056 that the missing windows ".
. . created a hazard of the operator losing his hearing or having lung
problems." (Gov. Ex. 4). Thus, Hackworth initially characterized the cited
missing glass as S&S in nature. However, Citation No. 6205056 was subsequently
modified on March 19, 2001, to reflect the cited condition was not S&S. In this
regard, the modification noted: "The Citation is modified to better reflect the
likelihood of injury." (Emphasis added). (Gov. Ex. 4, p.2).
Since the Secretary does not assert the absence of the windshield or left side
glass was reasonably likely to contribute to injury or illness, there is an
inadequate basis for concluding that Section 56.14103(b) requires installation
of the missing glass. Accordingly, Citation No. 6205056 shall be vacated.
Having vacated the citation, 104(b) Order No. 6205169 issued by Hackworth on May
16, 2001, for Nelson Brothers' alleged failure to timely abate Citation No.
6205056 is also vacated.
I note parenthetically, that although a need for a windshield has not been shown
in these circumstances, the mandatory safety standard in 30 C.F.R. � 14106
requires front-end loaders to be equipped with protective structures if a loader
operator is exposed to a hazard from falling objects. The Secretary has not
alleged a falling object hazard in this case.
4. Citation No. 6205059 and 104(b) Order No. 6205170
On March 13, 2001, Hackworth also inspected the Caterpillar 966B front-end
loader that was normally operated by foreman Ralph Carter to load limestone
material into customer trucks. Hackworth noted the Caterpillar loader also did
not have operational headlights. Consequently, Hackworth issued Citation No.
6205059 citing an alleged violation of section 56.14100(b).
As previously noted, this safety standard requires defects that affect safety to
be corrected in a timely manner. Hackworth characterized the cited condition as
non-S&S and attributable to Nelson Brothers' moderate degree of negligence.
As discussed, the operative consideration is whether the absence of headlights
on the Caterpillar loader constitutes a defect that affects safety. It is
undisputed that the Jasper Quarry only operates during daylight hours. In this
regard, 30 C.F.R. � 56.17001 requires illumination sufficient to provide safe
working conditions of loading and dumping sites, as well as work areas. The
Secretary does not contend that Nelson Brothers' reliance on natural daylight
for illumination of the quarry violates the provisions of section 56.17001. Yet
the Secretary maintains natural daylight is insufficient for safe operation of
the front-end loader.
Consistent with the discussion concerning the absence of headlights on the Hough
loader, the Secretary has failed to demonstrate, by a preponderance of the
evidence, that the absence of headlights on the Caterpillar loader affects
safety. Accordingly, 104(a) Citation No. 6205059 and 104(b) Order No. 6205170
issued by Hackworth for Nelson Brothers' alleged failure to timely abate
Citation No. 6205059 are vacated.
My conclusion that headlights are not required under these circumstances should
be narrowly construed to apply to front-end loaders given their limited area of
operation at very low speed. I am not suggesting that haulage trucks do not
require headlights under the facts of this case.
5. Citation No. 6205060 and 104(b) Order No. 6205171
Hackworth also cited the Caterpillar loader in Citation No. 6205060 for an
alleged violation of section 56.14103(b). Consistent with his actions in
issuing Citation No. 6205056 for the missing glass on the Hough front-end
loader, Hackworth initially characterized the missing side window of the
Caterpillar loader as S&S because it was likely to contribute to the hearing
loss or respiratory illness of the loader operator. However, the citation was
later modified to non-S&S.
As previously discussed, to establish the fact of occurrence of a section
56.14103(b) violation, the Secretary must demonstrate that an absence of glass
"expose[s] the equipment operator to hazardous environmental conditions." The
Secretary does not assert that it is reasonably likely that such a hazard
exists. Accordingly, 104(a) Citation No. 6205060 and 104(b) Order No. 6205171
issued by Hackworth for Nelson Brothers' alleged failure to timely abate
Citation No. 6205060 are vacated.
6. Citation No. 6205063 and 104(b) Order No. 6205172
During the course of his March 13, 2001, inspection, Hackworth noted that the
Jasper Quarry lacked toilet facilities. Consequently, Hackworth issued Citation
No. 6205063 citing a non-S&S violation of the mandatory standard in 30 C.F.R.
56.20008(a). This standard provides that "[t]oilet facilities shall be provided
at locations that are compatible with the mine operations and that are readily
accessible to mine personnel." After setting March 13, 2001, as the initial
termination date, Hackworth extended the termination date until April 26, 2001.
Nelson Brothers admits that it relied on toilet facilities located in the
nearest town that is located approximately one mile from the quarry. To abate
the citation Nelson brought an outhouse to the mine that was built by his uncle
in 1956. (Tr. 179). However, the outhouse lacked a door. On April 19, 2001,
noting the continued absence of an outhouse door, Hackworth extended the
abatement period until April 26, 2001. When the door had not yet been installed
on Hackworth's return to the quarry on May 16, 2001, predictably, Hackworth
issued 104(b) Order No. 6205172 against the offending outhouse. One shudders to
imagine the enforcement actions necessary to ensure the immediate withdrawal of
the persons affected by this "violative" condition.
I recognize there may be instances where toilet facility conditions raise
serious enforcement concerns. However, this is not such an instance. Although
this bathroom facility lacked a door, it was located in a secluded quarry, and,
it primarily was used only by Carter and Nelson. The issuance of a 104(b) order
in this circumstance is illustrative of the degree of discretion exercised on
behalf of the Secretary in these matters. The withdrawal order ultimately was
terminated on May 23, 2001, after Hackworth determined a door capable of being
locked from the inside had been installed.
The Secretary proposed a civil penalty of $139.00. At the hearing, I urged the
parties to settle this situation. Nelson agreed to pay a $55.00 civil penalty,
and the Secretary mercifully agreed to withdraw the 104(b) order. (Tr. 178-83).
Accordingly, pursuant to the parties' agreement, Nelson Brothers shall pay a
$55.00 civil penalty in satisfaction of Citation
No. 6205063, and, 104(b) Order No. 6205172 is vacated.
7. Citation No. 6205067 and 104(b) Order No. 6205173
Hackworth also inspected the shaker screen on March 13, 2001. The shaker screen
is held in place by wedges that are driven into slotted bolts that cause tension
against the screen. Hackworth noted that there was no working platform to
service the shaker screen. To maintain or remove the screen, employees had to
stand on ladders that were placed against the steel framework of the v-belt
drive assembly and the steel frames of the discharge conveyors that carry
material from underneath the shaker. Hackworth and Nelson estimated that the
wedges and bolts that held the screen in place were located approximately ten to
twelve feet above the ground. (Tr. 186-88).
As a result of Hackworth's observations, he issued Citation No. 6205067 citing a
violation of the mandatory safety standard in 30 C.F.R. � 56.11001 that requires
a safe means of access to all working places. Hackworth was concerned that
relying on ladders to service the shaker screen was hazardous. Specifically,
Hackworth was concerned about the potential instability caused by standing on a
ladder while using both hands to remove wedges and bolts. In such event, a fall
could occur resulting in serious or disabling injuries. Consequently, Hackworth
designated the cited violation as significant and substantial. He concluded the
cited condition was due to a moderate degree of negligence. Although
significant construction was required to abate the violation, Hackworth allowed
only three days, until March 16, 2001, for termination of the citation.
Hackworth returned to the quarry on April 19, 2001, at which time he noted that
construction had begun on a work platform adjacent to the shaker screen. Nelson
had begun welding supports to the steel framework that would serve as the
support base for the platform. However, Nelson requested additional time to
complete construction because welding had been delayed by rainy conditions.
Nelson provided written assurances that the shaker screen would not be accessed
by ladder while construction continued. (Gov. Ex. 9). Accordingly, Hackworth
extended the abatement period until April 26, 2001.
Upon Hackworth's return on May 16, 2001, he observed that five angle iron floor
braces had been welded on both the north and south sides of the screen.
Although a total of ten floor braces had been welded, welding was incomplete
because only one welding pass had been made for each brace. Consequently,
Hackworth issued 104(b) Order No. 6205173 requiring the immediate withdrawal of
the shaker screen from service. Hackworth terminated the withdrawal order on
May 30, 2001, after he determined that welding had been completed and walkways
had been installed on the north and south sides of the screen.
Nelson Brothers does not dispute the fact of the cited violation. (Resp. Br.,
p.3). However, it challenges the S&S designation because maintenance or
replacement of the shaker screen was not expected to occur in the foreseeable
future. A violation is properly designated as S&S in nature if, based on the
particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to by the violation will result in an
injury or an illness of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC
1, 3-4 (January 1984); Cement Division, National Gypsum, 3 FMSHRC at 825.
The Commission has explained an S&S finding requires the Secretary to 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). The Commission has also emphasized it is the contribution of a
violation to the cause and effect of a hazard that must be significant and
substantial. Id. at 1868. The Commission subsequently reasserted its prior
determinations that as part of any "S&S" finding, the Secretary must prove the
reasonable likelihood of an injury occurring as a result of the hazard
contributed to by the cited violative condition or practice. Peabody Coal
Company, 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc., 18 FMSHRC 508
(April 1996).
The likelihood of injury posed by the violative condition must be viewed in the
context of continued normal mining operations. U.S. Steel Mining, 7 FMSHRC
1125, 1130 (August 1985). Consideration should be given to both the time the
violative condition existed before the citation was issued and the time it would
have existed if normal mining operations had continued. Bellefonte Lime Co., 20
FMSHRC 1250 (Nov. 1998); Halfway, Inc., 8 FMSHRC 12 (January 1986).
Maintenance requirements by nature are unpredictable and can arise at any time.
In its post-hearing brief, Nelson Brothers admits walkways around the shaker
screen were planned. However, installation of the walkways was delayed until
financing was available and the time necessary to perform the installation could
be found. (Resp. Br., p.3). Under these circumstances, given the need for
shaker screen service at any time in the context of ongoing quarry operations,
it is reasonably likely that a ladder accident will occur from elevations from
as high as twelve feet, resulting in injuries of a reasonably serious nature.
Accordingly, Citation No. 6205067 citing a significant and substantial violation
of the mandatory safety standard in 30 C.F.R. � 56.11001 is affirmed.
With respect to 104(b) Order No. 6205173, as noted, the issue is whether
Hackworth's failure to extend the abatement period beyond April 26, 2001, was an
abuse of discretion. The initial termination date of March 16, 2001, provided
Nelson Brothers with three days to abate the cited condition. Hackworth
testified:
Q. How much time did you give Mr. Nelson to terminate this particular citation?
A. . . . I realized he would have to do quite a bit of work, so I give (sic)
him three days. (Tr. 189).
As a preliminary matter, I do not view the initial March 16, 2001, termination
date as reasonable given the welding and construction that was required to abate
this condition, not to mention the numerous additional citations that required
termination. Thus, the April 26, 2001, termination date must be considered as
an initial termination dated. The focus shifts to whether it was an abuse of
discretion not to grant an additional extension. As noted, resolving this
question requires an analysis of the danger posed by granting an extension, and
the degree of diligence demonstrated by Nelson Brothers in attempting to meet
Hackworth's abatement schedule. Clinchfield Coal Co., 11 FMSHRC at 2128;
Youghiogheny and Ohio Coal Co., 8 FMSHRC at 339.
With respect to the danger an extension of the abatement time would cause,
Hackworth testified that the shaker screen was not changed very often, and, that
changing screens "probably [is] not a real frequent thing . . . ." (Tr. 191,
200). Hackworth equated the need for changing the screen to the need for
changing a car battery in that both are dictated by their frequency of use.
(Tr. 199-200). To mitigate any danger, Hackworth testified that Nelson provided
written assurances that, in the unlikely event the screen had to be changed
before the work platform was installed, Nelson Brothers would use scaffolding
rather than ladders to service the screen. (Tr.193; Gov. Ex. 9). Thus, on
balance, the evidence does not reflect that a significant risk of injury would
have been created by granting a reasonable extension of the April 26, 2001,
termination date.
Regarding the diligence of abatement efforts, when Hackworth observed the shaker
screen framework on April 19, 2001, Nelson had begun to weld angle irons to
support the walkway. Hackworth gave Nelson an additional week to finish
construction and established a termination date of April 26, 2001. When
Hackworth returned on May 16, 2001, a total of ten floor braces had been welded
to the steel structures on the north and south sides of the screen. (Gov. Ex.
10). However, final welding passes had not been completed on all of the brace
supports and the platform and railing had not yet been installed. Hackworth
refused to extend the termination date and issued 104(b) Order No. 6205173. The
104(b) order was terminated on May 30, 2001, after construction was completed.
As noted, the evidence does not reflect that a significant risk of injury would
have been created by granting a reasonable extension of the April 26, 2001,
termination date. Moreover, the welding of ten angle iron braces in preparation
for installation of the required work platform evidenced a degree of diligence
that was a significant good faith effort to achieve compliance. Thus, I cannot
conclude the failure to grant a reasonable extension beyond the April 26, 2001
termination date was an exercise of sound discretion. Accordingly, 104(b) Order
No. 6205173 shall be vacated.
The Secretary seeks to impose a $264.00 civil penalty for Citation No. 6205067.
Given the Secretary's failure to demonstrate a lack of good faith abatement
efforts as an aggravating factor, a civil penalty of $185.00 shall be imposed
for Citation No. 6205067.
8. Citation No. 6205175
During Hackworth's follow-up inspection on May 16, 2001, he observed an oxygen
cylinder that was stored at the north end of the office trailer. Hackworth
noted that the cylinder did not have a cover or cap over the valve.
Consequently, Hackworth issued Citation No. 6205175 citing a non-S&S violation
of the mandatory standard in 30 C.F.R. � 56.16006. This standard provides:
"Valves on compressed gas cylinders shall be protected by covers when being
transported or stored, and by a safe location when the cylinders are in use."
(Emphasis added). Hackworth attributed the alleged violation to a moderate
degree of negligence.
Significantly, Citation No. 6205175 noted, "[t]he operator stated that the
cylinder was empty." (Gov. 11). Hackworth testified he had no reason to doubt
that the cylinder was, in fact, empty. (Tr. 230). The citation was terminated
on May 23, 2001, after Hackworth determined that Nelson Brothers had returned
the cited cylinder to the supplier. The Secretary seeks to impose a $55.00
civil penalty for this citation.
Where the language of a regulatory provision is clear, the terms of that
provision must be enforced as they are written unless the regulator clearly
intended the words to have a different meaning or unless such a meaning would
lead to absurd results. Lodestar Energy, Inc., 24 FMSHRC 689, 692 (July 2002)
(Citations omitted). If however, a standard is ambiguous, deference is owed
the Secretary's reasonable interpretation of the regulation. Id. Here, the
term "compressed gas cylinder" in section 56.16006 is ambiguous and requires
interpretation because it is not clear that this term includes an empty
cylinder.
A regulation must be interpreted to harmonize with its intended purpose. Id.
Hackworth testified that the regulatory purpose of requiring a valve cover in
section 56.16006 is to prevent the valve assembly from becoming a projectile
fueled by the sudden release of compressed gas if the gas cylinder was struck or
fell. (Tr. 222-24). Thus, the intent of section 56.16006 is to require valve
covers on cylinders containing compressed gas. The Secretary does not dispute
that the cited cylinder was empty. Thus, there was no propellant in the
cylinder. Consequently, the Secretary's application of section 56.16006 to the
facts of this case is impermissible because it does not further the regulation's
intended purpose. Accordingly, the Secretary has failed to demonstrate the fact
of the alleged violation. Therefore, Citation No. 6205175 shall be vacated.
B. Docket No. CENT 2002-184-M
1. Citation No. 6205075 and 104(b) Order No. 6205174
During Hackworth's March 13, 2001, inspection he noted that the entire length of
the conveyor belt system at the crushing plant was not visible from the control
booth because the shaker screen obscured a portion of the conveyor. As a
conveyor start-up warning system, Nelson told Hackworth that he used visual hand
signals to communicate to Carter in the control booth that the beltline was
clear. (Tr. 238). Although Hackworth initially accepted this method of hand
signaling, upon his return to his office Hackworth concluded this procedure did
not satisfy the safety provisions of 30 C.F.R. � 56.14201(b). (Tr. 242).
Consequently, Hackworth issued Citation No. 6205075. Section 56.14201(b)
provides, in pertinent part:
When the entire length of the conveyor is not visible from the starting switch,
a system which provides visible or audible warning shall be installed and
operated to warn persons that the conveyor will be started." (Emphasis added).
Hackworth considered the violation to be non-S&S because, while not as effective
as an audible warning system, he believed Nelson's visual warning system was a
method of ensuring conveyor belt safety. (Tr. 255). Hackworth attributed the
violation to a moderate degree of negligence. Hackworth established March 25,
2001, as the termination date. The Secretary seeks to impose a civil penalty of
$215.00 for Citation No. 6205075.
Nelson does not deny that the entire conveyor was not visible from the control
booth. Rather, Nelson maintains the hand signal warning method satisfies the
cited safety standard. However, the hand signal method is ineffective if the
control operator does not see anyone in the vicinity of the belt. Under such
circumstances, the control operator may be unable to resist the temptation to
start the belt because he is convinced no one is around. Under such
circumstances, an individual in the belt area that is obscured from view by the
shaker screen is at risk. The terms of section 56.14201(b) apply because it is
undisputed that a portion of the belt is obstructed from view. Under such
circumstances, the cited mandatory standard requires the installation of a
warning system. Thus, Nelson's alternative hand signal system does not satisfy
the standard. Accordingly, Citation No. 6205075 shall be affirmed.
Upon Hackworth's return to the quarry on April 19, 2001, he determined that a
conveyor start-up warning system had still not been installed. Nelson informed
Hackworth that he was having difficulty locating a 120 volt alarm to install at
the beltline. Consequently, Hackworth extended the termination date until April
26, 2001. Hackworth returned to the quarry on May 16, 2001, and determined that
no action had been taken to install the warning system. When asked why nothing
had been done, Nelson informed Hackworth that he had forgotten about it. (Tr.
243; Gov. Ex 13). Consequently, on May 16, 2001, Hackworth issued 104(b) Order
No. 6205174 that required the immediate suspension of conveyor operations. The
order was terminated on May 23, 2001, after a 120 volt start-up alarm was
installed at the crusher control booth.
As discussed, weighing the abuse of discretion issue with respect to a 104(b)
withdrawal order requires considering whether an extension of the abatement
period would expose personnel to risk, and whether the mine operator
demonstrated diligence in attempting to meet the established abatement schedule.
In this case, there apparently was no significant danger posed by extending the
abatement date past April 26, 2001, as Hackworth had designated the condition as
non-S&S. However, here, unlike other 104(b) orders considered in this
proceeding, Nelson Brothers failed to demonstrate any diligent efforts to comply
to warrant an extension of the abatement period. Rather, it failed to timely
install the audible warning system because Nelson forgot to do it. Under such
circumstances, it cannot be said that Hackworth's failure to extend the
abatement period beyond April 26, 2001, evidenced an abuse of discretion.
Accordingly, 104(b) Order No. 6205174 shall be affirmed. The $215.00 civil
penalty proposed by the Secretary for Citation No. 6205075 shall be assessed.
ORDER
Consistent with this Decision, IT IS ORDERED that 104(a) Citation Nos. 6205054,
6205055, 6205063 and 6205067 in Docket No. CENT 2002-65-M ARE AFFIRMED.
IT IS FURTHER ORDERED that 104(a) Citation Nos. 6205056, 6205059, 6205060 and
6205175, AND, 104(B) Order Nos. 6205167, 6205168, 6205169, 6205170, 6205171,
6205172 and 6205173 in Docket No. CENT 2002-65-M ARE VACATED.
IT IS FURTHER ORDERED that 104(a) Citation No. 6205075 and 104(b) Order
No. 6205174 in Docket No. CENT 2002-184-M ARE AFFIRMED.
IT IS FURTHER ORDERED that Nelson Brothers Quarry shall pay a total civil
penalty of $585.00 in satisfaction of 104(a) Citation Nos. 6205054, 6205055,
6205063 and 6205067 in Docket No. CENT 2002-65-M and 104(a) Citation No. 6205075
in Docket No. CENT 2002-184-M. Payment is to be made to the Mine Safety and
Health Administration within 40 days of the date of this Decision. Upon timely
receipt of payment, Docket Nos. CENT 2002-65-M and CENT 2002-184-M ARE
DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution: (Certified Mail)
Kristi Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box
46550, Denver, CO 80201
Paul M. Nelson, President, Nelson Brothers Quarries, P.O. Box 334, Jasper, MO
64755
/hs
[1] The term "unwarrantable failure" is taken from section 104(d) of the Mine
Act and refers to circumstances where a violation is attributable to a mine
operator's serious lack of care. Generally, the Commission considers
unwarrantable conduct to be aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987).
[2] All references to "Nelson" in this decision concern Paul M. Nelson who
represented the respondent in this matter and who was present during the subject
inspections.
[3] As noted at the hearing, I am not suggesting that having only two employees
at a mine site justifies a delay in abating hazardous conditions. (Tr.
202-211). However, in the present case the vast majority of the cited
conditions were considered to be non-hazardous.