<DOC>
[DOCID: f:l95-229.wais]
NORTHERN ILLINOIS SERVICE CO.
June 26, 1996
LAKE 95-229-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
June 26, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. LAKE 95-229-M
Petitioner : A.C. No. 11-02963-05501
:
v. :
: Northern Illinois Service
NORTHERN ILLINOIS SERVICE CO., :
Respondent :
DECISION
Appearances: George F. Schorr, Conference and Litigation Representative,
U.S. Department of Labor, Mine Safety and Health
Administration, Duluth, Minnesota, for the Petitioner;
David A. North, Esq., Rockford, Illinois, for the Respondent.
Before: Judge Feldman
This matter is before me as a result of a petition for civil
penalty filed by the Secretary of Labor pursuant to section 105(d)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. � 801
et seq., (the Mine Act). The petition seeks a $50.00 civil penalty
for each of two alleged non-significant and substantial (non-S&S)
violations[1] of the mandatory safety standards
contained in 30 C.F.R. Part 56.
**FOOTNOTES**
[1]: A violation is not significant and substantial if it is
not reasonably likely that the hazard contributed to by the
violation will result in a serious injury. Cement Division,
National Gypsum, 3 FMSHRC 822, 825 (April 1981). This case was
heard in Rockford, Illinois, on March 19, 1996.
[2] The parties stipulated the respondent is an operator
subject to the jurisdiction of the Act, the cited violations
were abated in a good faith and timely manner, and, the proposed
civil penalties will not affect the respondent's ability to continue
in business. The parties' post-trial briefs are of record.
Preliminary Findings of Fact
Wayne Klinger is the sole owner of Northern Illinois Service
Company. The company extracts limestone at the subject
quarry located north of Rockford, Illinois, on Swanson Road.
The quarry had been inactive for approximately five years
before it was leased by Klinger in September 1993, for a
five year term.
Normally, there are three employees working at the quarry
-- a "scale girl," loader operator Steven Yancy, and the
Foreman, Dan Kentner. (Tr. 99). The extraction process
consists of drilling and dynamiting the limestone deposits.
The extracted material is then transported to the primary
crusher by a front-end loader where it is processed and
transported by belt to stacker conveyors.
Blasting by an independent contractor began in October 1993.
Klinger purchased new equipment including a Kamatsu loader,
a Boehringer primary crusher that was assembled by Murawski
Engineering in Rockford, Illinois, a screen and conveyors.
The primary crusher was installed in May 1994. The first
bucket of extracted limestone was loaded into the crusher on
June 18, 1994.
In April and May 1994, prior to commencing operations,
Klinger made several telephone calls to the Mine Safety and
Health Administration's (MSHA's) field office in Peru,
Illinois, to request a compliance assistance visit (CAV). A
CAV is performed, at an operator's request, in order to
ensure compliance with mandatory safety standards by
operators who are
**FOOTNOTES**
[2]: The March 19, 1996, hearing in this matter was
initially scheduled for November 9, 1995. The hearing was
continued until January 23, 1996, due to an interruption in
government operations as a consequence of the budget impasse.
The January 23, 1996, hearing date was once again continued
because of the government shutdown.
opening new mines, or who are operating new mining
equipment. Under this CAV program, an MSHA inspector visits
the facility and informs the operator of potential
violations. The operator is then given a reasonable period
of time to correct the violative conditions without the
imposition of civil penalties.
In response to Klinger's request, MSHA Inspector
Robert Flowers performed a CAV on June 9 and June 16, 1994.
At that time, the primary crusher was out of service.
Therefore, Flowers could not perform a CAV to determine if
the quarry was operating in compliance with the mandatory
standards pertaining to dust and noise. However, Flowers
issued numerous CAV Nonpenalty Notices on MSHA FORM 4000-51.
The CAV notices cited various conditions including several
for apparent violations of the mandatory guarding requirements
for conveyor belts and tail pulleys. These CAV Nonpenalty
Notices did not specify a termination date before which the
cited conditions had to be corrected. (See Ex. R-1).
The conditions were corrected during the period June 15 through
July 6, 1994. Foreman Dan Kentner testified Flowers did not state
that he would return for a noise and dust inspection or that the CAV
was otherwise incomplete. (Tr. 103).
In August 1994, MSHA Inspector William Hatfield reviewed
MSHA's files on the subject quarry. Hatfield talked to
Flowers and his supervisor, Ralph Christiansen. They
informed him the CAV visits were completed. Christiansen
assigned Hatfield to perform a regular inspection.
Ordinarily, Flowers would have conducted the inspection.
However, Hatfield was assigned because Flowers was behind on
his inspections due to illness.
Hatfield arrived at the Swanson Road quarry at approximately
8:00 a.m. on August 4, 1994. Hatfield went to the scale
house, identified himself, and requested to speak to the
foreman. According to Hatfield, Foreman Kentner arrived at
the scale house, whereupon Hatfield, consistent with his
normal procedure, advised Kentner he was there to conduct a
regular inspection. Hatfield also testified he had no
reason to represent that his visit was for a CAV, as his
assignment was to conduct a routine inspection. Kentner
testified Hatfield informed him that he wanted to do a noise
and dust inspection, although Hatfield did not specify
whether the purpose was a CAV or regular inspection. (Tr.
103).
Kentner informed Hatfield that the primary crusher had been
out of service since August 1, 1994, due to a major
breakdown involving the clutch. Hatfield had intended to
inspect the entire operation including noise and dust
compliance. (Tr. 48). Hatfield observed two different
types of material beneath the stacking conveyor which led
him to believe that extraction operations had commenced.
(Tr. 20). Kentner conceded there were stockpiles of
material, although he characterized the piles as
insignificant. (Tr. 185). Since the crusher was not
operational, Hatfield, accompanied by Kentner, inspected
other areas of the facility.
Hatfield and Kentner were in the scale house at
approximately 9:30 a.m. when Hatfield observed an energized,
uncovered 110 volt duplex outlet box on the east wall.
Hatfield testified that the purpose of an outlet cover is to
prevent contact with inner wires that could result in
electric shock injuries. Consequently, Hatfield informed
Kentner that a cover was required and he issued Citation No.
4313030 citing a non-S&S violation of the mandatory safety
standard in section 56.12030, 30 C.F.R. � 56.12030. This
standard requires electrical boxes to be covered at all
times except during testing and repair. Hatfield returned
to the facility the following morning to ensure that the
violations had been abated. Hatfield terminated the
citation at 8:00 a.m. on August 5, 1994, after he observed
that a cover had been installed on the cited outlet.
At approximately 10:00 a.m. during the August 4, 1994,
inspection, Hatfield and Kentner proceeded to the generator
trailer which contained the generator that powered the
crusher unit, screens and conveyors. Hatfield observed an
acetylene tank and an oxygen tank without valve covers.
Acetylene is used as fuel and the oxygen is used as an
enhancer to power the cutting torch. When in use, the valve
caps must be removed to install the regulator on the tanks.
A regulator is attached to the tanks and a 100-foot hose is
attached to the regulator with the cutting torch at the end
of the hose. The long hose enables torch cutting operations
to occur outside the generator trailer without removal of
the tanks. The tanks remain stored in the generator trailer
when not in use.
Hatfield concluded the tanks, also referred to as cylinders,
were not in use because they were not attached to any
regulator gauges or torches. (Tr. 29, 58). Hatfield
testified that these cylinders contained compressed gas under
pressure of up to 2,000 pounds per square inch. Hatfield
opined these cylinders could explode if an exposed valve was
accidentally damaged by contact with a tool or other object.
Hatfield informed Kentner that the valve caps were required.
Hatfield issued Citation No. 4313031 for a non-S&S violation
of section 56.16006, 30 C.F.R. 56.16006. This mandatory
standard requires valves on compressed gas cylinders to be
covered when the cylinders are transported or stored.
Kentner had the valve caps reinstalled within 30 minutes.
Hatfield testified that he wrote Citation Nos. 4313030 and
4313031 during the evening of August 4, 1994, after
returning to his motel room after completing the day's
inspection. Hatfield returned to the quarry the following
morning where he conducted a close-out conference with the
end-loader operator because Kentner was not available.
Hatfield does not recall the name of the
end-loader operator and he could not identify Yancy who was
the respondent's the end-loader operator at that time.
Yancy could not recall ever meeting Hatfield. (Tr. 145).
The meeting related by Hatfield reportedly occurred
approximately 18 months before the trial in this proceeding.
Hatfield explained it is difficult for him to recognize
someone in a courtroom who had been wearing a hard hat and
who was last seen 18 months earlier. (Tr. 197-98).
The respondent alleges it received the subject citations via
certified mail on or about August 30, 1994, in an envelope
postmarked August 28, 1994. Hatfield testified that
citations are personally served on operators rather than
mailed, with the exception of citations that require
subsequent laboratory analysis such as respiratory dust
samples. Therefore, Hatfield maintained he personally
served the subject citations to an individual identified as
the end-loader operator during a close-out conference in the
scale house on August 5, 1994.
Ultimate Findings and Conclusions
As a threshold matter, the respondent asserts that Hatfield
went to its mine site to complete the noise and dust CAV
started by Fowler in June 1994. The respondent contends
that Hatfield issued the subject wall outlet cover and tank
valve cover
citations only after Hatfield learned he could not conduct a
CAV for noise and dust compliance because the crusher was
not operational. The respondent speculates that the subject
citations were intended to be CAV warnings but were later
written as formal citations and initially served by
certified mail on or about August 30, 1994. Thus, the
respondent argues the citations should be treated as
nonpenalty CAV warnings.
The nature and extent of a CAV inspection is within the
discretion of the Mine Safety and Health Administration
(MSHA). Although the respondent characterized the
stockpiles as insignificant when Hatfield conducted his
August 1994 inspection, it is undisputed that mining
activities began on June 18, 1994, when the first bucket of
limestone was loaded into the crusher. The evidence also
reflects Flowers had already conducted a CAV which noted a
variety of non-crusher related violative conditions. (See
Ex. R-1). Therefore, there is no basis for disturbing
Hatfield's decision to conduct a regular inspection on
August 4, 1994.
Moreover, it is well settled that MSHA is not estopped from
citing a violative condition simply because the violation
was overlooked during a prior inspection. See King Knob
Coal Co., Inc., 3 FMSHRC 1417, 1421-22 (June 1981). Judge
Morris addressed this issue with respect to CAV reviews in
Brighton Sand & Gravel, 3 FMSHRC 127 (ALJ, Jan. 1991).
Judge Morris stated:
When A CAV inspection takes place, MSHA cannot guarantee
that all areas of a mine will be inspected, nor can it
guarantee that all possible violations will be detected by
the inspector. This is because the primary obligation for
compliance with the regulations rests with the mine
operator. Id. at 128.
Therefore, the Secretary is not precluded from enforcing these
citations even if they existed but were not cited by Flowers
during his June 1994 CAV visit.
The citations in this matter identified as Exs. P-1 and P-2
were issued pursuant to section 104(a) of the Mine Act,
30 U.S.C.� 814(a).[3] They cite violations of mandatory safety
standards that were observed by Inspector Hatfield on the morning
of August 4, 1994, in the presence of Kentner, the quarry
Foreman. In accordance with section 104(a), the citations
describe with particularity the nature of each violation and the
mandatory standard violated. The citations also provide a
reasonable period of time for abatement of the cited violative
conditions.
I credit the testimony of Hatfield that he served the
citations on the morning of August 5, 1994, when he returned to
the quarry to determine the cited conditions were abated.
(Tr. 55-56). In this regard, the citations reflect the last
violation was terminated at 8:00 a.m. on August 5, 1994.
(Ex P-4). However, even if the citations were first served by
certified mail on or about August 30, 1994, as alleged, they were
served with "reasonable promptness" as required by section 104(a)
of the Mine Act, and, the respondent has not shown any prejudice
by its purported receipt by certified mail. Therefore, whether
Hatfield personally served the citations, or mailed them, is not
a relevant issue that impacts on the citations' validity.
**FOOTNOTES**
Section 104(a) provides:
If, upon inspection or investigation, the Secretary or
his authorized representative believes that an operator
of a coal or other mine subject to this Act has
violated this Act, or any mandatory health or safety
standard, rule, order, or regulation promulgated
pursuant to this Act, he shall, with reasonable
promptness, issue a citation to the operator. Each
citation shall be in writing and shall describe with
particularity the nature of the violation, including a
reference to the provision of the Act, standard rule,
regulation ,or order alleged to have been violated.
In addition, the citation shall fix a reasonable time
for the abatement of the violation. The requirement
for the issuance of a citation with reasonable
promptness shall not be a jurisdictional prerequisite
to the enforcement of any provision of this Act.
With respect to the issue of Hatfield's credibility, there
is no evidence that Hatfield represented that he was performing a
CAV inspection. Moreover, the respondent's prompt abatement
efforts reflect these violations were not viewed as informal CAV
warnings. CAV warnings are advisory in nature and do not have a
formal abatement date. Review of the subject citations reflects
the violative conditions were abated within one day -- well in
advance of the termination date specified in the citations. This
prompt abatement evidences that Kentner was aware that these were
formal violations that, unlike CAV violations, required immediate
correction.
Having determined that the citations are valid, we turn to
the question of the fact of occurrence of the cited violations.
Citation No. 4313030 was issued for an uncovered, energized
110 volt duplex outlet box on the east wall of the respondent's
scale trailer. The uncovered condition of this outlet box is not
in dispute. The respondent does not contend this outlet box was
undergoing testing or repair at the time it was observed by
Hatfield. Therefore, the Secretary has met his burden of
establishing the cited violation of the mandatory safety standard
in section 56.12030.
With respect to remaining Citation No. 4313031, section
56.16006 requires valves on compressed gas cylinders to be
covered when not in use. The dispositive question is whether or
not the cited cylinders were in use when they were observed by
Hatfield without valve covers at approximately 10:00 a.m. The
respondent asserts the tanks were in use because: (1)they were
connected to a regulator and a hose; (2) they had been used by
Yancy immediately prior to Hatfield's inspection; and (3) Yancy
used the cylinders for torch operations throughout the day, both
before and after the inspection. As noted below, the evidence
fails to support these assertions.
Contrary to the respondent's claim that a regulator and
torch were connected, Hatfield testified the regulator and torch
were not connected and there was no one observed preparing to use
the cylinders. (Tr. 29, 58). Similarly, Kentner testified that
no one was "physically cutting" at the time. (Tr. 122).
The respondent's self-serving statements that the cylinders
were being used were not expressed to Hatfield by Kentner at the
time of the inspection. (Tr. 137). Such exculpatory testimony,
the substance of which was first presented at trial, is of little
evidentiary value. Moreover, Citation No. 4313031 reveals the
valve caps were installed at 10:30 a.m., shortly after the
condition was cited. There is no evidence to support Kentner's
self-serving assertion that the regulator was removed prior to
installation of these valve caps. (Tr. 123). For example, as
noted above, Kentner admittedly did not question Hatfield about
why he was required to remove the regulator if the cylinders were
being used. (Tr. 137). Kentner's testimony that the 100-foot
hose was "wrapped inside" next to the cylinders and not seen by
Hatfield is inconsistent with the respondent's assertion that the
torch was being used outside the generator trailer. (Tr. 138).
In short, the regulator, hose and torch were not observed by
Hatfield because there is no objective evidence that they were
connected to the cylinders and being used. (Tr. 58).
Significantly, although Yancy allegedly remembers using the
tanks off and on all day on August 4, 1994, his testimony is
inconsistent with his purported recollection. (Tr. 151-52).
In this regard Yancy testified:
Q. On that day [August 4, 1994], were you aware of the fact
that there was some comment about the use of the oxygen
and torch equipment?
A. Yeah, later towards quitting time in the afternoon he
had gone, Dan [Kentner] was telling me -- about some
caps that he had put on. (Tr. 151).
Yancy testified "it [doesn't] make any sense" to remove the
regulator and replace the valve caps when the cylinders are used
intermittently throughout the day. (Tr. 152). However, the
substance of the above quoted testimony is that Yancy first
learned that valve caps had been installed by Kentner at quitting
time. If Yancy had used the cylinders throughout the day, as
alleged, he would have known Kentner had installed the caps
earlier that morning because Yancy would have had to remove the
caps and reinstall the regulator and hose in order to resume his
purported use of the torch.
Thus, on balance, I credit Hatfield's testimony that there
was no evidence that the cylinders had been in use on the morning
of August 4, 1994. Accordingly Citation No. 4313031 is affirmed.
In considering the appropriate penalty to be assessed, I
must consider the penalty criteria in section 110(i) of the Mine
Act, 30 U.S.C. � 820(i). The minimal $50.00 civil penalties
proposed by the Secretary for each of the two cited violations
takes into account that the respondent is a small operator that
has cooperated with MSHA during the CAV process. These small
proposed penalties also reflect the low gravity of the
violations, the low degree of negligence attributable to the
respondent, and the respondent's good faith efforts to achieve
rapid compliance. Accordingly, there is no basis for disturbing
the $50.00 penalties sought to be imposed.
In affirming the proposed civil penalties, I am cognizant of
Hatfield's testimony that the respondent is safety conscious and
runs "a very good operation." (Tr. 95). This mitigating factor
is a consideration in the imposition of this small penalty.
However, concerns for safety are not a defense to the cited
violations.
ORDER
In view of the above, Citation Nos. 4313030 and 4313031
ARE AFFIRMED. The respondent shall pay a total civil
penalty of $100.00 to the Mine safety and Health
Administration within
30 days of the date of this decision. Upon timely receipt
of payment, this case IS DISMISSED.
Jerold Feldman
Administrative Law Judge
Distribution:
George F. Schorr, Conference and Litigation Representative, Mine Safety and Health
Administration, U.S. Department of Labor, Duluth Federal Building, U.S. Courthouse, 515
W. First Street, Room 228, Duluth, MN 55802-1302 (Certified Mail)
David A. North, Esq., 216 Court Street, P.O.
Box 17, Rockford, IL 61105 (Certified Mail)
/mca