.
TIDE CREEK ROCK, INC.
March 25, 1996
WEST 94-369-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
March 25, 1996
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 94-369-M
Petitioner : A.C. No. 35-02479-05501 :
:
v. : Docket No. WEST 94-379-M
: A.C. No. 35-02479-05502
:
: Docket No. WEST 94-492-M
TIDE CREEK ROCK, INC., : A.C. No. 35-02479-05503
Respondent :
: Docket No. WEST 94-493-M
: A.C. No. 35-02479-05504
:
: Docket No. WEST 94-638-M
: A.C. No. 35-02479-05505
:
: Docket No. WEST 95-48-M
: A.C. No. 35-02479-05506
:
: Docket No. WEST 95-275-M
: A.C. No. 35-02479-05507
:
: Tide Creek Rock
DECISION
Appearances: Matthew L. Vadnal, Esq., Office of the Solicitor,
U.S. Department of Labor, Seattle, Washington, and
Paul A. Belanger, Mine Safety and Health Administration,
U.S. Department of Labor, Vacaville, California, for
Petitioner;
Agnes M. Peterson, Esq., Deer Island, Oregon, for
Respondent.
Before: Judge Manning
These cases are before me on petitions for assessment of
civil penalties filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration ("MSHA"), against Tide
Creek Rock, Inc. ("Tide Creek"), 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 petitions allege 33
violations of the Secretary's safety standards. For the reasons
set forth below, I affirm 21 citations and 2 section 104(b)
withdrawal orders, and vacate 12 citations and 1 section 104(b)
withdrawal order. I assess penalties in the amount of $640.00.
A hearing was held in these cases in Portland, Oregon. The
parties presented testimony and documentary evidence, and filed
post-hearing briefs.
I. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Tide Creek Rock Mine, owned and operated by Tide Creek,
is a very small crushed stone operation in Columbia County, Oregon.
The mine consists of a pit and crusher. The mine recorded about
3,000 annual hours worked and it employs three people. It has a
history of no citations between January 1990 and January 1994.
On January 20 and 21, 1994, MSHA field office supervisor John Widows
inspected the mine following a telephone complaint about the mine
received at MSHA's headquarters on January 19. (Ex. R-1).
General Defenses
Tide Creek argues that all or most of the citations should
be vacated for five reasons, as discussed herein. First, it
maintains that the Secretary failed to show that the citations
were issued by a person who is authorized to do so under the Mine
Act. Tide Creek contends that Mr. Widows was not "qualified by
practical experience in mining or by experience as a practical
mining engineer or by education." (T.C. Br. at 3, quoting 30
U.S.C. � 954). Further, Tide Creek argues that Mr. Widows does
not have five years of practical mining experience and that in
assigning him to inspect the mine, the Secretary failed to give
due consideration to his lack of "previous experience in the
particular type of mining operation" at the Tide Creek Rock Mine.
Id. It contends that these qualification requirements are
jurisdictional. (T.C. Answer Br. at 1-2). The Secretary argues
that Mr. Widows is an authorized representative of the Secretary
and is qualified as a result of his experience, training, and
education.
Although Mr. Widows' career history is unusual, I
find that he was duly qualified to inspect Tide Creek's
mine and to issue citations. He has been employed by
MSHA for 17 years, first as a health and safety
specialist and then as a field office super-
visor. (Tr. 11-12). Although he has never been
an MSHA inspec-tor, he is a duly authorized
representative of the Secretary, as that term is
used in sections 103(a) and 104(a) of the Mine
Act. (30 U.S.C. �� 813(a) and 814(a); Tr. 13,
142). He has a degree in mining engineering from
the Colorado School of Mines, but he has never
worked at a mine except during the summer while in
college. (Tr. 13). He was also trained at MSHA's
Mine Safety and Health Academy. I find that Mr.
Widows does not have five years of practical
mining experience. Section 505 provides, however,
that the Secretary shall appoint, "to the maximum
extent feasible," inspectors with five years of
practical mining experi-ence. 30 U.S.C. � 954.
Thus, that provision is not jurisdic- tional. For
the same reason, the fact that he never worked at
a rock or gravel pit does not disqualify him from
inspecting Tide Creek's mine. I find that he
meets the qualifications of section 505 as a
result of his education, training, and experience
at MSHA.
Second, Tide Creek argues that any citations that
involve the same safety standard and the same equipment
or area of the mine should be combined into a single
citation. Tide Creek points to MSHA's Program
Policy Manual which includes such a directive.
(PPM at Vol. I, Sec. 104, p. 15). The citations
that Tide Creek believes should be combined
include seven guarding citations and four handrail
citations. The Secretary maintains that the PPM
is not binding on MSHA but merely provides
guidance to inspectors. He also contends that the
crusher was a large piece of equipment made up of
many separate components and that each of the
conditions cited presented a separate hazard.
Section 110(a) of the Mine Act provides that "each
occurrence of a violation of a mandatory health or
safety standard may constitute a separate
offense." 30 U.S.C. � 820(a). The Secre- tary
did not abuse his discretion in issuing multiple
citations alleging violations of the same or
similar safety standards. Each citation addresses
a discrete area of the crusher. For example, with
respect to the guarding citations, no two
citations require a guard at the same location.
Each citation required a separate abatement effort
by Tide Creek to terminate the cita- tion. See,
Port Costa Materials, Inc., 16 FMSHRC 1516, 1519-
20 (July 1994) (ALJ).
Although the Secretary's Program Policy manual is
evidence of MSHA's policies and practices, it is not
binding on the Secre- tary. Brock v. Cathedral
Bluffs Shale Oil Co., 796 F.2d 533, 536-38 (D.C.
Cir 1986); Coal Employment Project v. Dole, 889
F.2d 1127, 1130 n.5 (D.C. Cir 1989). In addition,
the Secretary states that the "multiple
violations" in these cases should not be treated
as one violation because they were not related to
the same piece of equipment or the same area of
the mine. Thus, the guideline in the Program
Policy Manual was not violated.
Third, Tide Creek argues that the Secretary is
equitably estopped from enforcing the citations in
this proceeding. It states that the Tide Creek Rock
Mine has not changed in any significant way since
1979. It argues that the Secretary should be
estopped from enforcing these citations because
the cited conditions were observed by MSHA
inspectors on previous inspec-tions and no
citations were issued. Tide Creek wrote a letter
to MSHA after it received two citations in 1979
stating that the inspector was asked to point out
any additional "areas of defi-ciency." (Ex. R-7).
The letter went on to state that since he could
find no other violations, Tide Creek "has complied
with all ... requirements and there is nothing
else to be done." Id.
The Commission has long held that equitable
estoppel does not apply to the Secretary in Mine Act
proceedings. King Knob Coal Co., 3 FMSHRC 1417,
1421-22 (June 1981). The Commission set forth the
reasoning behind its conclusion in King Knob,
which I will not repeat here. In some cases,
courts have estopped the government where it has
engaged in "affirmative misconduct." See, e.g.,
United States v. Ruby, 588 F.2d 697, 702-04 (9th
Cir. 1978), cert. denied, 422 U.S. 917 (1979). I
find that MSHA did not engage in "affirmative
misconduct" in this case and I hold that the
citations should not be vacated on that basis.
Fourth, Tide Creek maintains that because many of
the conditions cited by Mr. Widows have been in existence
since 1979, this action is barred by the statute
of limitations and by the equitable doctrine of
latches. The Mine Act does not include a statute
of limitations. As stated by counsel for the
Secretary, the only limitation is that citations
be issued with "reasonable promptness." 30 U.S.C.
� 814(a). If an inspector believes that a safety
standard had been violated, he must issue a citation
with reasonable promptness. There has been no showing
that Mr. Widows unreasonably delayed issuing any
citation after he determined that a violation
existed. For the same reason, there has been no
indication that MSHA knew of violations of safety
standards at the mine but slept on its duty to
issue citations.
Finally, Tide Creek argues that it was denied
due process because the inspection was triggered
by a telephone complaint that contained false
information. In particular, Tide Creek contends
that as "an American citizen entitled to due
process in some regard, we firmly believe that to
allow the use of a secret `Code-a-phone' system to
allow complaints that are false about the
department and about an operator without any
recourse being allowed amounts to an abuse of
process that has been set up to protect miners
working in mines." (T.C. Br. 34).
Congress determined that miners should "play an active
part in the enforcement of the Act" and that "they must
be protected against any possible discrimination
which they might suffer as a result of their
participation." S. Rep. No. 181, 95th Cong., 1st
Sess. 35 (1977), reprinted in Senate Subcommittee
on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the
Federal Mine Safety and Health Act of 1977, at 623
(1978). MSHA's system for anonymous telephone
complaints fur-thers that objective. In addition,
section 103(a) of the Mine Act expressly grants
authorized representatives of the Secretary a
right to enter all mines for the purpose of
performing inspec-tions under the Act. The
Secretary possessed the authority to conduct the
inspection at issue even if the inspection ensued
from a complaint that contained false information.
See, Aloe Coal Co., 15 FMSHRC 4, 8 (January 1993).
"An inspector has broad discretion to gain entry
and to inspect a mine." Id. According-ly, Tide
Creek did not suffer an abuse of process.
General Background and Discussion
The Tide Creek Rock Mine consists of three work areas:
(1) the crusher including auxiliary facilities; (2)
the stockpile; and (3) the extraction area in the
pit. Usually, only three em-ployees work at the
mine, but on occasion there are four employ-ees.
John A. Peterson is the only person who operates
the crusher and he remains at the crusher's
control tower at all times when the crusher is
operating. One employee loads rock at the
extraction area into a truck, drives the truck to
the upper hopper of the crusher, and dumps the
rock into the hopper. On occasion another
employee also performs this task. The third
employee loads crushed rock into a truck at the
lower hopper (bunker silo) and dumps the rock at
the stockpile. At the time of the inspection, the
crusher was not operating.
In its brief, Tide Creek asserts that many of the
conditions described in the citations did not create a
hazard to Mr. Peter-son or to the other employees, for
the reasons discussed in more detail below. It
argues that the citations should be vacated
because the conditions did not create a hazard to
miners.
The Commission and the courts have uniformly held
that the Mine Act is a strict liability statute. See,
e.g. Asarco v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989).
"[W]hen a violation of a mandatory safety standard
occurs in a mine, the operator is auto-matically
assessed a civil penalty." Id. at 1197. In
addition, the Secretary is not required to prove
that a violation creates a safety hazard, unless
the safety standard so provides.
The [Mine Act] imposes no general requirement
that a violation of MSHA regulations be found
to create a safety hazard in order for a
valid citation to issue. 30 U.S.C. � 814(a).
If conditions existed which violated the
regulations, citations [are] proper.
Allied Products Co., 666 F.2d 890, 892-93 (5th Cir. 1982)
(footnote omitted). The degree of the hazard is taken into
consideration in assessing a civil penalty under section 110(i).
30 U.S.C. � 820(i).
In assessing civil penalties, I have taken into considera-
tion the fact that Tide Creek is a very small family-run business
and that, except as noted below, it promptly abated the 33 cita-
tions with its limited resources. Except as noted below, I find
that Tide Creek's negligence was low with respect to the cita-
tions. The conditions cited by Mr. Widows existed for a consid-
erable length of time without receiving citations by MSHA.
Mr. Peterson was attempting to run a safe operation and reason-
ably believed that he was in compliance with the Secretary's
safety standards.
Specific Citations
Tide Creek also argues that the Secretary failed to prove
the violation alleged in each citation. In order to discuss the
allegations in a systematic way, I have grouped the citations by
subject area rather than by docket number.
A. ELECTRICAL CITATIONS
1. Citation No. 4339822 alleges that a danger sign was not
posted at the electrical shed to warn persons of electrical haz-
ards. The safety standard, 30 C.F.R. � 56.12021, provides that
"suitable danger signs shall be posted at all major electrical
installations." Mr. Widows testified that the cited shed con-
tained the majority of the mine's electrical components and that
it did not have a sign warning people that electrical equipment
was in the shed. (Tr. 92-95, 181-84). At the time of the in-
spection the power was off. Id. Mr. Peterson testified that
there was no sign, but there was no person to warn of the danger
because he is the only person who goes into the shed.
(Tr. 335-36).
Tide Creek argues that the citation should be vacated
because the citation did not include a reference to the standard
allegedly violated. The Secretary admits that the citation did
not set forth what safety standard was violated, but contends
that Tide Creek was not prejudiced by the omission. It maintains
that Tide Creek knew the material facts that led to the issuance
of the citation and that its counsel cross-examined Mr. Widows
about the violation. It moves to amend the citation to conform
to the evidence.
I find that this omission is a technical defect and the
citation should not be vacated on this basis. In making this
finding I rely on the fact that "Exhibit A" to the Secretary's
petition for assessment of civil penalty in WEST 94-369-M, which
lists the citations and penalties, alleges a violation of section
56.12021 with respect to Citation No. 4339822. Thus, Tide Creek
had notice of the standard allegedly violated long before the
hearing in this matter.
Based on the evidence, I find that the Secretary established
a violation. There is no dispute that the shed was a "major
electrical installation" and it did not have a danger sign. As
stated above, the fact that the condition created little or no
hazard to miners is not a defense to the violation. I find that
the violation was not significant and substantial ("S&S") and
that the gravity was low because all miners knew it was an elec-
trical shed and, with the exception of Mr. Peterson, had no
reason to enter it. I also find that Tide Creek's negligence was
low. A penalty of $20.00 is appropriate.
2. Citation No. 4339823 alleges that the motor for the El-
Jay gyro was not grounded creating a shock hazard in violation of
section 56.12025. The safety standard provides, in part, that
all metal encasing electrical circuits shall be grounded or pro-
vided with equivalent protection. Mr. Widows testified that all
electrical circuits must be grounded back to the source. (Tr.
55-59, 172). He stated that the motor is part of a three-phase
480-volt circuit that required a fourth ground wire. He testi-
fied that if one of the wires touched the casing of the motor,
the metal could become energized creating an electric shock
hazard. Id. Mr. Widows said that frame grounding is not suffi-
cient under the safety standard because "you can never tell how
good the frame is" and a buildup of rust or corrosion could
interfere with the grounding system. (Tr. 57). Mr. Peterson
testified that the cited motor was bolted down to metal and that
all metal pieces at the crusher are interconnected with grounding
straps including this motor. (Tr. 322-26, 371-73). He stated
that the motor was grounded as required by the standard.
The Secretary contends that the standard requires that an
operator install a separate ground wire returning to the power
source and that frame grounding is unacceptable under the
National Electrical Code. He maintains that a fourth grounding
wire is required under the standard. Tide Creek argues that the
safety standard does not require any particular type of
grounding.
I credit the testimony of Mr. Peterson that each piece of
metal at the crusher was interconnected with grounding straps,
including the cited motor, and that a ground wire was connected
to the frame of the crusher and the mine's grounding rod. (Tr.
322-26, 372-73, 411-13). He welds about twice a month using one
electrical lead and the frame of the crusher as the ground.
Mr. Widows testified that a continuous fourth grounding wire is
required by the standard. (Tr. 402-11). Mr. Widows, however,
did not conduct any test to determine if the motor was grounded
and did not examine Tide Creek's grounding system. He simply
concluded that it violated the standard because there was no
fourth grounding wire.
The standard does not set forth any particular means of
grounding the metal compartment of a motor. "Electrical ground-
ing" is defined as meaning "to connect with the ground to make
the earth part of the circuit." 30 C.F.R. � 56.2 In addition,
the standard does not incorporate the National Electrical Code
by reference. I find that the Secretary did not establish a
violation. The Secretary has the burden of proof and he has not
shown that the casing for the motor was not connected to the
earth. I do not doubt that a fourth wire grounding system is
state of the art at the present time and that it offers certain
advantages over Tide Creek's grounding system. The Secretary
failed to show, however, that the metal encasing the cited motor
was not grounded nor provided with equivalent protection. See,
e.g. McCormick Sand Corp., 1 FMSHRC 21, 23-24 (January 1980)
(ALJ). Accordingly, this citation is vacated.
3. Citation No. 4339824 alleges that continuity and resist-
ance of the grounding system had not been tested in violation of
section 56.12028. The safety standard provides, in part, that
continuity and resistance of the grounding system shall be tested
at the time of installation, repair and modification, and annual-
ly thereafter. Mr. Widows testified that he asked Mr. Peterson
whether he had performed such tests and that he replied "No."
(Tr. 59-61, 173). He stated that the purpose of the test is to
"make sure that all motors, electrical boxes, energized circuits,
... have a good ground path back to the source...." (Tr. 60).
The test would disclose any ungrounded motors. Mr. Peterson did
not deny that the grounding system had not been tested and stated
that the first time that an electrician tested the ground system
was after he added a fourth wire ground to abate Citation No.
4339823. (Tr. 371-73). Tide Creek contends that Mr. Peterson's
use of the grounding system to operate his welder is a sufficient
test under the standard.
I find that the Secretary established a violation. There is
no dispute that the test was not done and Mr. Peterson's use of
the grounding system to operate his welder does not comply with
the standard. I agree with Mr. Widows that the violation was not
S&S and was not serious. I also agree that Tide Creek's negli-
gence was moderate. A penalty of $50.00 is appropriate.
4. Citation No. 4339853 alleges that two cover plates were
missing from junction boxes in 110-volt lighting circuits in the
shop in violation of section 56.12032. The boxes were about 8�
feet high and no bare copper wire was observed. The safety
standard provides that inspection and cover plates on electrical
equipment and junction boxes be kept in place at all times except
during testing and repair. Mr. Widows testified that he observed
the condition while inspecting the shop. (Tr. 101-07). Tide
Creek argues that the citation should be dismissed because there
is "no testimony in the record that the pictured items are `elec-
tric equipment' or `junction boxes'" (T.C. Br. at 23).
I find that the items cited are "junction boxes," as that
term is used in the standard, and that the Secretary established
a violation. Mr. Widows did not use the term "junction box" but
called them "electrical boxes." (Tr. 101). There is no ques-
tion, however, that the boxes in which the leads for the lights
in the shop were connected to the power source did not have
covers. (Ex. P-14). The boxes were junction boxes. I find that
the violation was not S&S and not serious. The junction boxes
were on the ceiling and the shop was used for storage only. I
also find that Tide Creek's negligence was low. A penalty of
$20.00 is appropriate.
5. Citation No. 4340483 alleges that the cover box for the
El-Jay gyro motor was missing exposing the insulated connections
in violation of section 56.12032. The citation states that the
box was about seven feet high. Mr. Widows testified that the box
encloses electrical connections to keep the weather out and that
the cover was missing. (Tr. 40-43, 162-62, 193-94; Ex. P-3). He
stated that the condition created a hazard because rain could get
into the electrical connections, cause a short, and injure some-
one. Id. Mr. Peterson testified that he took the cover off the
box because the motor shakes and jumps causing the wires to rub
against the cover. (Tr. 318-321). He was concerned that the
wires could short out. Id. He testified that at the time the
citation was issued the wires were intact and that the condition
did not create a hazard. Id.
Tide Creek contends that removal of the cover plate was a
"repair" as that term was used in the safety standard because it
was removed to prevent a short circuit caused by vibration of the
crusher. It argues that the standard is therefore inapplicable.
I disagree and find that the Secretary established a violation.
The term "repair" does not include the permanent removal of the
box's cover to prevent wires from rubbing against the cover. I
construe the exception to refer to repairs to the wires, their
connections, and the box itself rather than a permanent solution
to a problem. There is no requirement that the cover be metal.
I find that the violation was not S&S or serious. Given the
location and condition of the wires in the box the hazard was
minimal. I also find that Tide Creek's negligence was low. A
penalty of $20.00 is appropriate.
6. Citation No. 4339854 alleges that there was an improper
splice on a 110-volt power circuit in the shop in violation of
section 56.12013. The citation further states that the splice
was in the corner of the shop where there was little exposure and
no bare copper leads were observed. The safety standard pro-
vides, in part, that permanent splices and repairs made in power
cables shall be mechanically strong, insulated to a degree equal
to that of the original and provided with damage protection as
near as possible to that of the original. Mr. Widows testified
that the two cables had been spliced using a wire nut without
additional insulation or a box. (Tr. 69-71, 176-77, 200-01;
Ex. P-8). He stated that using a wire nut did not satisfy the
requirements of the standard. Id. Mr. Peterson testified that
the splice was temporary and that it was not as strong as the
original, but that one could not be injured by it because it was
insulated to the same degree as the original. (Tr. 326-28).
Tide Creek contends that the citation should be vacated
because the standard applies only to "permanent splices and
repairs of power cables." Tide Creek argues that the splice was
a temporary solution and that the Secretary failed to prove a
necessary condition precedent to a violation. Mr. Peterson
testified that the cable went to a new transformer that he had
just installed because the old transformer was no longer working.
(Tr. 326-27). He said that he attached the wires with a wire nut
as a temporary measure and Mr. Widows arrived shortly thereafter.
I credit Mr. Peterson's testimony in this regard. I also credit
his testimony that it did not present a shock hazard.
The standard clearly states that it applies only to perma-
nent splices and repairs of cables, not to temporary splices. As
stated above, the splice was not in an easily accessible area. I
find that the splice was temporary and that the cited standard
does not apply. Accordingly, the citation is vacated.
7. Citation No. 4340484 alleges that the start and stop
switch for the cross belt was not labeled and could not be
readily identified by location in violation of section 56.12018.
The safety standard provides that principal power switches shall
be labeled to show which units they control unless identification
can be made readily by location. Mr. Widows testified that a
start/stop switch was not labeled and could not be identified by
location. (Tr. 44-46, 163-65, 194-96). He determined that it
was for the cross belt by asking Mr. Peterson. Id. At the time
of the hearing, he could not remember if there were any markings
on or near the switch but testified that he would not have issued
the citation if it was properly labeled. Id. Mr. Peterson tes-
tified that dust from the crusher would obliterate any label and
that he is the only person who uses the switch in any event.
(Tr. 321-22). If anything goes wrong, he shuts down the plant at
the two main switches and everything is dead. Id. He stated
that the crusher is a one-man operation and he is the only one
who would have any need to shut off the power.
Tide Creek argues that because Mr. Widows did not have a
clear recollection of the switch or any marking on the switch at
the hearing the citation should be vacated. It also argues that
the switch is identifiable by location since Peterson knows where
it is and what it operates, and he is the only person who works
at the crusher. I find that the Secretary established a viola-
tion. Mr. Widows testified that the switch was not labeled,
although he could not remember if there were any markings in
the area. Mr. Peterson's testimony indicates that it was not
labeled. Accordingly, I find that the switch was not labeled.
I also find, based on Mr. Widow's testimony, that it could not be
readily identified by location. As stated above, the Secretary
is not required to show that a hazard was created to establish a
violation.
I find that the violation was not S&S and that it created
little or no hazard. I credit Mr. Peterson's testimony that
other miners would not be at the crusher when it was operating
and would not be in the position of having to turn off the switch
in the event of an emergency. I also find that Tide Creek's
negligence was low. A penalty of $20.00 is appropriate.
B. GUARDING CITATIONS
Tide Creek raises a number of issues that are common to all
of the guarding citations. Each citation was issued under 30
C.F.R. � 56.14107, which provides:
(a) Moving machine parts shall be
guarded to protect persons from contacting
gears, sprockets, chains, drive, head, tail,
and takeup pulleys, flywheels, couplings,
shafts, fan blades, and similar moving parts
that can cause injury.
(b) Guards shall not be required where
the exposed moving parts are at least seven
feet away from walking or working surfaces.
The citations involve pinch points of belts and pulleys.
Tide Creek contends that each citation should be vacated because
only Mr. Peterson travels within eight feet of the cited areas
and he does so only when the crusher is not running. The evi-
dence discloses that the other employees drive trucks and do not
ordinarily walk past the cited areas when the crusher is operat-
ing. The record also reveals that Mr. Peterson ordinarily ap-
proaches the cited areas only to grease bearings and he does so
only when the crusher is not running.
The Commission held that the most logical construction of a
guarding standard "imports the concepts of reasonable possibility
of contact and injury, including contact stemming from inadver-
tent stumbling or falling, momentary inattention, or ordinary
human carelessness." Thompson Brothers Coal Co., Inc., 6 FMSHRC
2094, 2097 (September 1984). The Commission stressed that the
construction of safety standards involving miners' behavior
"cannot ignore the vagaries of human conduct." Id. (citations
omitted). Thus, I am required to consider all relevant exposure
and injury variables including "accessibility of the machine
parts, work areas, ingress and egress, work duties, and ... the
vagaries of human conduct" on a case-by-case basis. Id.
Taking these factors into consideration, I find that, as a
general matter, the fact that employees do not enter the crusher
area when it is running is not a valid defense to the citations.
It is not disputed that there is no physical barrier to prevent
an employee from walking into the crusher area past the cited
pinch points. An employee could stumble and come in contact with
a pinch point. The fact that such an event is unlikely relates
to the gravity of the violation and not whether a violation
occurred. I find that it is highly unlikely that anyone would
walk through the crusher while it was running but, given the
vagaries of human conduct, I cannot totally rule that possibility
out. An employee could decide that he needed to travel through
the area; Mr. Peterson could be preoccupied and not see the em-
ployee; and the employee could slip, fall and injure himself in a
pinch point.
I consider these arguments on a citation-by-citation basis,
as discussed below.
1. Citation No. 4339821 alleges that the back side of the
V-belt pulleys for the El-Jay gyro were not guarded to prevent
persons from contacting the pinch points in violation of section
56.14107(a). The citation states that the pulleys were about
four feet high and that the exposure was minimal since the front
side was guarded. Mr. Widows stated that people walk on the
guarded side of the pulley and that if someone slipped and
grabbed the guard to brace himself, his fingers could come in
contact with the pinch point. (Tr. 88-92; Ex. P-12). Mr. Peter-
son testified that there was a chain between two posts to keep
people out of the area. (Tr. 336-40, 438-49; Ex. R-21). He also
testified that the moving part was not within seven feet of a
work area, but that it was within seven feet of a walk area. Id.
He stated that he walks by the pulley three or four times a day,
but that the crusher is not operating at that time. Finally, he
stated that if you grabbed the belt while the pulley was running,
it would throw you towards the motor not the pinch point. (Tr.
338).
Tide Creek argues that this citation should be vacated
because there was no working or walking surface within seven
feet. It also argues that the chain was accepted as a guard by
an MSHA inspector during a previous inspection. Finally, it
contends that there was no chance of an injury because the pulley
runs away from the pinch point towards the electric motor.
Based on the evidence, I find that the Secretary established
a violation. Unguarded moving machine parts were present within
seven feet of where Mr. Peterson walks every day to run the
crusher. The pulley is not operating at that time. As discussed
above, other employees would not ordinarily walk through this
area while the crusher was operating. Given the vagaries of
human conduct, however, an employee could walk by the pulley
while it was operating to speak with Mr. Peterson in the control
tower. Mr. Peterson could be preoccupied with other matters at
the control tower and not see the employee. The employee could
slip and his fingers could become entangled in the pinch point.
He could grab the lower part of the belt by accident. As stated
above, the fact that the condition created little or no hazard to
miners is not a defense to the violation.
Perimeter guarding of the area around a machine is not an
acceptable alternative to site specific guarding of the moving
part. See, e.g. Moline Consumers Co., 15 FMSHRC 1954 (September
1993)(ALJ); Brown Brothers Sand Co., 17 FMSHRC 578 (April 1995)
(ALJ); Walker Stone Co., 16 FMSHRC 337, 357 (February 1994)(ALJ).
Thus, the chain that was supported by two posts along one side of
the pulley is not an acceptable guard. To comply with the stand-
ard, the guard must prevent an employee from unintentional con-
tact with the moving part. As discussed above, the Secretary is
not estopped from issuing a citation for a violation of a safety
standard because an inspector on a previous inspection did not
cite the condition. In this instance, an MSHA inspector accepted
the chain as a guard during an inspection that occurred sometime
between 1979 and 1982. I find that this fact does not warrant a
dismissal of the citation, but rather indicates that Tide Creek's
negligence was quite low. "Although the record reflects some
confusion surrounding MSHA's [interpretation of the safety stand-
ard], as a general rule, `those who deal with the government are
expected to know the law and may not rely on the conduct of gov-
ernment agents contrary to law'" Emery Mining Corp. v. Secretary
of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984)(quoting Heckler v.
Community Health Services, 104 S.Ct. 2218, 2226 (1984)).
Based on the above, I find that the violation was not S&S
and that the gravity was low because miners did not travel near
the cited area while the machine was running. I also find that
Tide Creek's negligence was low. Taking into consideration all
of the factors discussed above, a penalty of $20.00 is
appropriate.
2. Citation No. 4339855 alleges that the self-cleaning tail
pulley for the bunker conveyor was not provided with a guard to
prevent persons from contacting the pinch points in violation of
section 56.14107(a). The citation states that the pulley was
about three feet high and that persons are not normally in the
area when the crusher is running. Mr. Widows testified that an
employee could accidentally get his hand caught in the pinch
points and sustain a serious injury. (Tr. 107-115, 185; Ex.
P-15). Mr. Peterson said that nobody would ever be in the area
of the tail pulley while the crusher is operating. (Tr. 341-343,
348).
Tide Creek argues that the moving machine part is more that
seven feet from a walking or working surface. It states that the
evidence shows that it is at least 15 feet from the control tower
and at least 15 feet from the other miners driving trucks. It
points to Mr. Widows' testimony that "people could go up there
but, more than likely, they would not." (Tr. 112). In sum, Tide
Creek contends that no one works or walks near the belt when it
is operating.
Tide Creek also argues that this citation should be barred
by the doctrine of res judicata. In John Peterson, d/b/a Tide
Creek Rock Products, 4 FMSHRC 2241 (December 1982), Commission
Administrative Law Judge George A. Koutras adjudicated several
guarding citations at Tide Creek's facility. Tide Creek argues
that two of the areas that Mr. Widows cited were previously cited
by another MSHA inspector and that Judge Koutras vacated the
citations on the merits. Accordingly, it contends that the
issues with regard to these citations have been previously
adjudicated and that the Secretary cannot relitigate them now.
Based on the evidence, I find that the Secretary established
a violation. People did not routinely work in and around the
self-cleaning tail pulley and it was not along a normal walkway.
Nevertheless, it was in an open area that was easily accessible
to anyone at the mine. The pinch point presented a hazard to
anyone who walked through the area. Given the vagaries of human
conduct, an employee could enter the area without being detected,
slip on the mud under the tail pulley, and get his hand caught in
the pinch point.
I also find that res judicata does not apply. Judge Kou-
tras's description of the conditions at the self-cleaning tail
pulley is quite similar to the conditions that prevailed at the
time the citation was issued in the present case. 4 FMSHRC at
2255. The safety standard at the time of Judge Koutras's deci-
sion was different from the present safety standard. The old
safety standard, 30 C.F.R. � 56.14-3, provided that guards at
tail pulleys "shall extend a distance sufficient to prevent a
person from accidentally reaching behind the guard and becoming
caught between the belt and the pulley." The present standard
does not include such qualifications. All tail pulleys must be
guarded if they are less than seven feet away from walking and
working surfaces. Thus, the principal legal issue, the inter-
pretation of the safety standard, differs.
Based on the above, I find that the violation was not S&S
and that the gravity was low because miners did not travel near
the cited area while the machine was running. I also find that
Tide Creek's negligence was low. Taking into consideration all
of the factors discussed above, a penalty of $20.00 is
appropriate.
3. Citation No. 4339856 alleges that the head pulley and
V-belt drive of the "under El-Jay" conveyor was not guarded
to prevent persons from contacting the pinch points in
violation of section 56.14107(a). The citation states that
the pulley was about six feet above the ground and that
there was little expo-sure because miners are not in the
area. Mr. Widows testified that someone could become
entangled in the pinch points and sustain an injury. (Tr.
110-15, 185; Ex. P-15). Mr. Peterson testified that nobody
would ever be in the area of the tail pulley while the
crusher is operating. (Tr. 341-343, 348).
The cited area was adjacent to the area cited in the
previous citation, No. 4339855. (Ex. P-15). The only
significant difference is that the unguarded area was about
six feet off the ground in this citation and about three
feet off the ground in the previous citation. The parties
arguments are the same with respect to both citations.
For the reasons discussed above, I find that the citation
should be affirmed. I also find that the violation was not
S&S and that the gravity was low because miners did not
travel near the cited area while the machine was running. I
also find that Tide Creek's negligence was low. Taking into
consideration all of the factors discussed above, a penalty
of $20.00 is appropriate.
4. Citation No. 4339858 alleges that the V-belt drive
for the main screen was not provided with a guard to prevent
persons from contacting the pinch points in violation of
section 56.14107(a). The citation states that the V-belts
were about three feet high and that a ladder was present
which provided access to the V-belts. It further states
that the operator stated that the drive was greased when the
crusher was not operating. Mr. Widows testified that it is
not likely that the alleged violation would cause an injury
because the only access to the area was by the ladder. (Tr.
115-18, 185-86). He testi-fied that "anybody could walk up
there, but it was out of the way ... it wasn't a main
travelway." (Tr. 116). Mr. Peterson testi-fied that nobody
goes up the ladder to the V-belt drive when the crusher is
running. (Tr. 295-96, 366).
Tide Creek argues that the alleged pinch point is more than
seven feet from a walking or working surface and that a
person would have to climb a 12-foot ladder to get to the
pinch point. The Secretary contends that because the ladder
was "up" at the time of the inspection, it was a working
surface and the pinch point was required to be guarded.
(Ex. P-18).
I find that the Secretary did not establish a violation
because the moving machine part was more than seven feet
from a walking or working surface. I credit Mr. Peterson's
testimony that he greases the drive when the crusher is not
operating. There is no other reason for anyone to climb the
12-foot ladder. Even considering the vagaries of human
conduct, I find that a miner would not walk or work within
seven feet of the pinch point. Under the circumstances of
this case, the ladder was not a walking or working surface.
Accordingly, the citation is vacated.
5. Citation No. 4339851 alleges that the air compressor
behind the shop had unguarded V-belts in violation of
section 56.14107(a). The citation states that the
compressor is infre-quently used and that minimal exposure
is present. It further states that the V-belt pulley was on
the back side of the com-pressor and about three feet high.
Mr. Widows testified that an accident was unlikely because
the belts were back against the wall in an out-of-the-way
area. (Tr. 67-69, 175; Ex. P-7). He also stated that there
was an electrical box nearby and that if someone were to
throw the switch on the box, he would be close to the
compressor. Id. Mr. Peterson testified that the compressor
is automatically activated, there is no switch to turn it
off or on. (Tr. 267-70, 356-57; Ex. R-4). He also stated
that the com-pressor is about 15 feet from the road and is
not within seven feet of a walking or working surface. Id.
He testified that no employee goes near the compressor at
any time. Id. Finally, he testified that the switch on the
electrical box controls a pump in the creek that is seldom
used. Id.
Tide Creek argues that the compressor is more than seven
feet from any walking or working surface, particularly given
its remote location against the back wall of the shop. The
Secretary contends that the area around the compressor is a
working surface because someone occasionally turns on the
electrical switch near the compressor to activate a pump.
Based on the evidence, I find that the Secretary established
a violation. The area around the compressor is a working
surface on an occasional basis when the water pump is turned
on. A per-son could trip and accidentally get his fingers
caught in the pulley for the V-belts, if the compressor was
operating. The risk of an injury is low, however, because
of the location of the pulleys against the back wall of the
shop.
Based on the above, I find that the violation was not S&S
and that the gravity was low because a miner would enter the
area only occasionally and the pinch points are partially
guarded by location. I also find that Tide Creek's
negligence was low. Taking into consideration all of the
factors discussed above, a penalty of $20.00 is appropriate.
6. Citation No. 4339859 alleges that the tail, head, and V-
belt pulleys for the cross belt were not guarded to prevent
per-sons from contacting the pinch points in violation of
section 56.14107(a). The citation states that the pulleys
were about four to five feet high and that persons pass by
the tail pulley on their way to the control tower for the
crusher. Mr. Widows testified that one had to pass within
two feet of the cited area to get to the control tower.
(Tr. 120-24, 134, 136-38; Exs. P-1, P-16). He also
testified that a miner would have to climb over the cited
area to get to a work platform. Id. He determined that the
alleged violation was S&S because anyone walking in the area
would be exposed. Id. Mr. Peterson testified that the
cited area is more than seven feet from a walking or working
surface. (Tr. 299-301; Exs. R-2, R-18). He stated that no
miner walks across the cited area except him to grease
fittings and that he greases the fittings before he starts
the crusher. Id. He stated that it is not the route he or
anyone else uses to go to the control tower.
On February 7, 1994, Mr. Widows issued Order No. 4340486
under section 104(b) of the Mine Act because he determined
that Tide Creek had not abated the conditions described in
the cita-tion. The order states that the operator built a
handrail rather than a guard to abate the citation despite
the fact that Tide Creek was advised that a handrail would
not be acceptable.
Tide Creek contends that the citation should be vacated
because the cited area is more than seven feet from a
walking or working surface. In addition, it argues that the
alleged viola-tion is not S&S because it was highly unlikely
that anyone would be injured. It argues that the section
104(b) order should not have been issued because it
installed the handrails in a good-faith attempt to abate the
citation. Finally, Tide Creek con-tends that the record
makes clear that more time for abatement was required and
Mr. Widows' refusal to provide more time was an abuse of his
discretion.
Based on the evidence, I find that the Secretary established
a violation. I credit the testimony of Mr. Peterson that
the cited area was not along the route that he or other
miners take to reach the control tower. Nevertheless, Mr.
Peterson testified that he walks along the area to reach
fittings. Even though he greases the fittings before the
crusher is started, the cited area is within seven feet of a
walking surface. As stated above, the Secretary is not
required to show that a hazard was created to establish a
violation.
I find, however, that the violation was not S&S and that
the gravity was low. It is highly unlikely that a miner would
walk along the route suggested by Mr. Widows while the
crusher was operating, even taking into consideration the
vagaries of human conduct. The employees of Tide Creek work
in discrete areas and it is highly unlikely that anyone
would climb upon the super-structure of the crusher and
thereby come in contact with the cited pinch points. The
Secretary failed to establish "a reason-able likelihood that
the hazard contributed to will result in an injury."
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984).
Accordingly, the violation is not S&S.
An MSHA inspector is authorized to issue an order under
section 104(b) of the Mine Act if he determines on a
subsequent inspection that: (1) the violation described in
the citation has not been totally abated within the period
of time originally fixed in the citation; and (2) the period
of time for abatement should not be further extended. It is
clear that the violation was not totally abated within the
time set in the citation. Whether the time should be
extended is subject to the inspector's reasonable exercise
of discretion. Tide Creek contends that it was trying to
abate about 33 citations in a short period of time
with only three miners. Mr. Peterson stated that it took
about three weeks to get everything done. (Tr. 364). I find
that Mr. Widows did not abuse his discretion in issuing the
order. By that time, Mr. Peterson knew or should have known
that a handrail would not guard the moving machine parts.
Mr. Widows advised him of that fact on January 28. (Tr.
137-38). I appreciate that Tide Creek faced a difficult
task, but its actions in this in-stance did not excuse its
failure start working on guards.
I find that the negligence of Tide Creek was low. The
violation was not timely abated. Taking into consideration
the factors discussed above, including the fact that the
violation was not S&S and that the gravity was low, a
penalty of $50.00 is appropriate.
7. Citation No. 4339860 alleges that the tail pulley of
the three-inch conveyor was not guarded to prevent persons
from con-tacting the pinch points in violation of section
56.14107(a). The citation states that the pulley was about
three feet high, but there was little exposure in the area.
Mr. Widows testified that the pinch point of this conveyor
was close to the area cited in the previous citation, No.
4339860. (Tr. 124-27, 138-40; Ex. P-1). He determined that
the exposure was not great because the area is infrequently
traveled. Mr. Peterson testified that the cited area is
more than seven feet from a walking or working sur-face.
(Tr. 299-301; Exs. R-2, R-18). He stated that no miner
walks across the cited area except him to grease fittings
and that he greases the fittings before he starts the
crusher. Id. He stated that it is not the route he or
anyone else uses to go to the control tower.
On February 7, 1994, Mr. Widows issued Order No. 4339827
under section 104(b) of the Mine Act because he determined
that Tide Creek had not abated the condition described in
the cita-tion. The order states that the operator built a
handrail rather than a guard to abate the citation despite
the fact that Tide Creek was advised that a handrail would
not be acceptable.
The cited area was adjacent to the area cited in the
previous citation, No. 4339859. (Ex. P-15). The facts are
essen-tially the same. The parties' arguments are the same
with respect to both citations and the section 104(b)
orders.
For the reasons discussed above, I find that the citation
should be affirmed. The area was within seven feet of a
walking surface and a guard was not present. I also find
that the viola- tion was not S&S and that the gravity was
low because it was highly unlikely that miners would travel
near the cited area while the machine was running.
I also find that the section 104(b) order should be
affirmed, for the reasons discussed above. Finally, I
find that Tide Creek's negligence was low. Taking into
consideration the factors discussed above, including the
fact that the violation was not S&S and that the gravity was
low, a penalty of $50.00 is appropriate.
C. OTHER EQUIPMENT CITATIONS
1. Citation No. 4126437 alleges that the Cat 966
loader did not have a back-up alarm in violation of section
56.14132(b)(1). The citation states that the operator of
the vehicle had an ob-structed rear view and that no one was
present to signal when it was safe to back up. The safety
standard requires an automatic reverse-activated signal
alarm on self-propelled mobile equipment if the operator has
an obstructed view to the rear. Mr. Widows testified that
he observed the loader backing up without a re-verse alarm
system or a spotter. (Tr. 75-80; Exs. P-10, P-11). He
stated that the operator would not be able to see anyone
close behind the loader if he were to back up, because of
the obstruc-ted view. Mr. Peterson testified that nobody is
ever walking around in the vicinity of the loader. (Tr.
331-37).
Tide Creek argues that the evidence does not establish that
the operator had an obstructed view. In addition, it argues
that the evidence establishes that only one employee is in
the stock-pile area and he is the operator of the loader.
Finally, it con-tends that the safety standards are designed
to protect miners and not others who may be in the area.
(At the time the citation was issued, a customer was in the
stockpile area).
I find that the Secretary established a violation. The
evidence makes clear that the loader operator had an obstructed
view. (Tr. 76; Exs. P-10, P-11). There is no dispute that
a backup alarm was not present. While it is true that only
one employee ordinarily works in the stockpile area, other
employees could be in the area without the knowledge of the
loader opera-tor. Indeed, the fact that others are not
usually there could give the loader operator a false sense
of security.
I also find that the violation was S&S because the
Secretary established the elements of the S&S test set forth
in Mathies. First, as discussed above, there was a violation
of the safety standard. Second, the violation contributed
to a measure of dan-ger to safety. Third, there was a
reasonable likelihood that the hazard contributed to will
result in an injury. Given the noise of the loader and the
fact that the operator's vision to the rear is restricted,
it is reasonably likely that someone would be injured as a
result of the violation. Mr. Peterson walks around the
property and it is unlikely that the loader operator would
be able to see Mr. Peterson if he were backing up. Finally,
an injury would be of a reasonably serious nature. I find
that Tide Creek's negligence was moderate. Based on the
above, a penalty of $100.00 is appropriate.
2. Citation No. 4126439 alleges that Tide Creek was not
conducting inspections of mobile equipment used during the
shift in violation of section 56.14100(a). The safety
standard pro-vides that self-propelled equipment to be used
during a shift shall be inspected by the equipment operator
before being placed in operation. Mr. Widows testified that
he knew that safety inspections were not being made because
the loader did not have a back-up alarm. (Tr. 81-84). He
could not recall if he asked the loader operator if a safety
inspection was made or whether he requested any
documentation to support a safety inspection. Id. He said
that such a document request was standard MSHA procedure.
Mr. Peterson testified that the equipment operators tell him
if there is any problem with their equipment. (Tr. 334-35).
Tide Creek argues that the Secretary failed to prove that
an inspection was not made. I agree. The fact that the
back-up alarm was not functioning does not establish that a
safety inspection was not made. Mr. Widows could not
remember whether he requested to see a safety checklist.
The fact that such a request is standard MSHA procedure is
not enough to establish a violation. Accordingly, the
citation is vacated.
3. Citation No. 4340481 alleges that the red Mack haul
truck was not provided with seat belts in violation of
section 56.14131. The citation states that the truck was
used on level ground around loaders and on short hauls. The
safety standard provides that seat belts shall be provided
and worn in haulage trucks. Mr. Widows testified that he
looked into the vehicle and could not find any seat belts.
(Tr. 127-29). He stated that he did not consider the
violation to be S&S because of the manner in which the truck
is used. Id. He further stated that Mr. Peter-son told him
that he thought that older vehicles did not need to be
equipped with seat belts. Mr. Peterson testified that the
cited haul truck was manufactured in the early 1960s. (Tr.
344-47; Ex. R-23). He said that it is only used to make
400-foot trips over flat ground and that the top speed is 15
miles per hour. He said that the lack of seat belts did not
create a haz-ard because the truck would not tip over on
flat ground and it is only used on straight, flat trips.
Tide Creek argues that the Secretary did not establish
that the cited vehicle is a haulage truck. I disagree. The
vehicle is a dump truck. (Ex. R-23). Although the term
"haulage truck" is not defined by the Secretary, I conclude
that an ordinary dump truck is a "haulage truck" as that
term is used in the safety standard.
I agree with Mr. Widows that the violation was not S&S and
was not serious. I find that Tide Creek's negligence was low.
A penalty of $20.00 is appropriate.
D. TRAVELWAY CITATIONS
1. Citation No. 4339847 alleges that there was no handrail
in front of the conveyor at the operator's control tower to
pre-vent persons from falling onto the conveyor in violation
of sec-tion 56.11002. The safety standard provides, in
part, that crossovers, elevated walkways, elevated ramps,
and stairways shall be of substantial construction provided
with handrails, and maintained in good condition. Mr.
Widows testified that there is a conveyor that runs along
the side of the control tower for the crusher. (Tr. 97-101;
Ex. P-13). He stated that one of the duties of the crusher
operator is to pick pieces of wood off the conveyor. Id.
He testified that the lack of a handrail created a risk of
falling onto the belt, which was about 18 inches high. Id.
Mr. Peterson testified that he stands all day in the control
tower when the crusher is operating. (Tr. 293).
Tide Creek argues that the control tower is not a crossover,
elevated walkway, elevated ramp, or a stairway. It contends
that the control tower is a platform and that the safety
standard does not apply. Tide Creek states that Mr.
Peterson is the only per-son who works at the control tower
and that he operates the con-trols for the crusher from
there. (R-17). The Secretary did not address this issue.
The safety standard applies to "crossovers, elevated
walkways, elevated ramps, and stairways." Although a work
platform could be construed as a walkway under many
circumstances, I find that the platform cited here is not a
walkway. The term "walk-way" is not defined by the
Secretary, but "travelway," a similar term, is defined as "a
passage, walk or way regularly used ... for persons to go
from one place to another." 30 C.F.R. � 56.2. The control
tower was not a route miners would take to go from one place
to another. It was not a route that maintenance per-sonnel
would use to gain access to equipment. Rather, it was a
work station for Mr. Peterson. I find that the Secretary
failed to prove that the control tower was covered by the
subject safety standard. Compare, Moltan Co., 11 FMSHRC
351, 355-36 (March 1989)(ALJ). Accordingly, this citation
is vacated. It is important for Tide Creek to understand,
however, that another safety standard, 30 C.F.R. � 56.11027,
requires handrails on work platforms.
2. Citation No. 4339849 alleges that the work platform
along the second screen was not provided with handrails to
prevent a person from falling in violation of section
56.11002. The citation states that the platform was about
six feet high and that it is used to change the shacker
screens. Mr. Widows testi-fied that Mr. Peterson told him
that he needed to get on the platform to perform periodic
maintenance. (Tr. 26-31, 148-51, 153-55, 191-93; Ex. P-1).
Mr. Widows said that Mr. Peterson could fall six feet into a
puddle of water without the handrails. Mr. Peterson
testified that the cited platform is not a walkway,
crossover, ramp, or stairway, and that it is not used to get
from one place to another at the crusher. (Tr. 317-18).
Tide Creek argues that the cited area was not subject
to the cited standard. For the reasons set forth above, I
agree. In-deed, Mr. Widows referred to the area as a "work
platform." Although a work platform may also be an
elevated walkway in many instances, in this case the
Secretary failed to establish that it was. Apparently, Mr.
Peterson, on an infrequent basis, stands on the platform to
change a shaker screen. There is little evidence as to the
use of this platform. Accordingly, the citation is vacated.
3. Citation No. 4339846 alleges that the elevated
walkway along the bunker silo was not provided with handrails
to prevent persons from falling, in violation of section
56.11002. The citation states that the walkway was about
ten feet high on one side and that persons are required to
be on the walkway to load trucks. Mr. Widows testified that
the walkway was where someone would stand when trucks are
loaded. (Tr. 61-66, 173-75, 198-99; Ex. P-6). He said that
the walkway is along the bunker silo and, after a truck
backs in under the silo, an employee stands on the walkway
and pulls down a lever to release rock into the truck. Id.
He said that there is a danger that an employee could fall
while pulling on the lever. He also said that the walkway
is a wooden plank about ten feet long. Mr. Peterson
testified that the cited area was not a crossover, walkway,
ramp, or stairway. (Tr. 301-07, 364).
Tide Creek argues that the cited area was not covered by the
safety standard. It contends that the standard was designed
to protect individuals from falling from elevated areas that
are used as walkways and that the board by the bunker silo
was not used in such a fashion. The Secretary did not
address this issue.
The cited area is only used when a truck is under the silo
and is ready to be loaded. A worker steps up on the board
and pulls down on the handle to release material into the
truck. It is not a means of walking to any other location
at the mine and no person would be in the area unless a
truck was ready to be loaded. The Secretary failed to
establish that the board was a walkway, crossover, ramp, or
stairway. A platform may be covered by this safety standard
in many situations, but the Secretary failed to establish
that this platform was a walkway. In addi-tion, it appears
that the cited area would be covered by section 56.11027,
which requires handrails on scaffolds and work plat-forms.
Accordingly, this citation is vacated.
E. OTHER CITATIONS
1. Citation No. 4126433 alleges that the mine operator
failed to notify MSHA of the opening of the mine in
violation of section 56.1000. The safety standard provides,
in part, that the operator of any metal or nonmetal mine
shall notify the nearest MSHA office before starting
operations. The standard also re-quires such operators to
notify MSHA if it intends to close the mine on a temporary
or permanent basis. The citation states that Mr. Widows
told Mr. Peterson three years ago to notify MSHA when he
starts operating. Mr. Widows testified that MSHA never re-
ceived any notice from Tide Creek that the mine was
operating. (Tr. 23-26). He further testified that he told
Mr. Peterson that if he wanted to get started in the mining
business, he had to notify MSHA in advance.
Mr. Peterson testified that the mine has been in operation
since at least 1979 and has had an MSHA identification
number since that time. (Tr. 307-12, 368-69). He stated
that the mine was previously inspected by MSHA. He stated
that at the time of Mr. Widows' previous visit to the mine,
the crusher was not run-ning. Apparently, Widows told
Peterson on that date that when-ever he comes by he cannot
find anybody at the mine. He also told Peterson that if
"you're not running, I'm going to take your name out of my
book." (Tr. 309). Mr. Peterson testified that the mine was
operating on that date, but the crusher was not operating.
He further testified that MSHA inspectors came by on
subsequent dates, but they did not inspect the mine because
the crusher was not running. Mr. Voris Probst, who was
familiar with the mine, testified that the mine has not been
closed for the past 20 years. (Tr. 393-94, 399-400). He
further testified that the crusher operates about half of
the time.
The Secretary failed to establish a violation of the
standard. I credit the testimony of Peterson and Probst with
regard to this citation. It is clear from the record that
Tide Creek is a small family-run business. Mr. Peterson
operates the crusher and oversees other operations at the
minesite. Agnes M. Peterson is the president, keeps the
books, takes care of the paperwork, and acts as Tide Creek's
counsel. Mr. Peterson also is engaged in logging and
farming and Ms. Peterson practices law in St. Helens, the
county seat. If Mr. Peterson is not at the mine, the
crusher does not operate because he is the only person who
oper-ates the crusher. The safety standard does not require
Mr. Pe-terson to notify MSHA every time he decides to
operate the crusher. Apparently, there are significant
periods when the crusher is not operating, but the mine is
still open. The fact that Mr. Widows decided to take the
mine out of his "book" does not establish a violation. Tide
Creek must have notified MSHA that it was operating at some
point in the late 1970s because it had an MSHA
identification number at the time of the inspection. There
is no evidence that it ever notified MSHA that it was
closed. Accordingly, this citation is vacated.
2. Citation No. 4339852 alleges that several compressed
gas cylinders were not secured in a safe manner in violation
of section 56.16005. The safety standard provides that
compressed and liquid gas cylinders shall be secured in a
safe manner. The citation states that no mobile equipment
traveled in the area. Mr. Widows testified that two of the
cylinders were in the shop and one was outside the shop.
(Tr. 85-88, 181). He stated that they were lying on the
ground and the floor, and that Mr. Peterson told him that
they were empty. Mr. Peterson testified that he keeps
cylinders that are full tied up or secured in a cart. (Tr.
270-77, 357-58; Exs. R-8, R-9). He further stated that the
cited cylinders were empty.
Tide Creek argues that the cylinders should not have
been cited because they were empty. It contends that Mr.
Peterson secures empty bottles by opening the valve and
laying them on the ground. Tide Creek maintains that this
is a safe procedure be-cause it relieves all pressure from
inside the cylinder.
Based on the evidence, I find that the Secretary established
a violation. The language of the standard makes clear that
cylinders must be physically secured whether they are empty
or full. Although opening the valve of empty cylinders
greatly reduces the safety hazard, such a method does not
comply with the safety standard. I agree with Mr. Widows
that the violation was not S&S. I find Tide Creek's
negligence to be low. A penalty of $20.00 is appropriate.
3. Citation No. 4340482 alleges that an oxygen gas
cylinder was found in the shop in violation of 56.16005.
The citation was issued on February 7, 1994. Mr. Widows
testified that the cylinder was lying on the floor and it
was not secured. (Tr. 31-37, 151-52, 181, 193). As with
the previous citation, No. 4339852, the danger is that
something heavy may break the valve and cause the gas in the
cylinder to be suddenly released. (Tr. 34).
Mr. Peterson's testimony was the same for both cylinder
citations. The parties' arguments were also the same.
For the reasons discussed above, I find that the Secretary
established a violation. Mr. Widows determined that the
violation was not S&S because the cylinder was not located
in an area where it was likely that the valve would be
broken. At the hearing, counsel for the Secretary sought to
amend the citation to allege an S&S violation based on the
evidence. I find that the violation was not S&S. The
likelihood of an injury contributed to by this violation
was not very great. I also find that Tide Creek's
negligence was low. A penalty of $20.00 is appropriate.
4. Citation No. 4339826 alleges that a competent person
was not examining the working place at least once each shift
and recording these examinations in violation of section
56.18002. The safety standard provides, in part, that a
competent person shall examine each working place at least
once each shift for safety hazards and that a record of such
examinations shall be kept. Mr. Widows testified that he
asked Mr. Peterson about such examinations and that he
replied that they had not been done. (Tr. 95-97).
Tide Creek contends that the Secretary is seeking to prove
the violation on the basis that if the examinations had been
performed all of the other citations would not have been
issued. It contends that this citation constitutes
"improper doubling-up" and should be vacated.
Based on the evidence, I find that the Secretary established
a violation. The Secretary is not seeking to establish a
violation based on the number of citations issued during
the inspection. Rather, the Secretary established that the
examinations were not being performed and records of them
were not being kept. I agree with Mr. Widows' determination
that the violation was not S&S or serious. I find that Tide
Creek's negligence was low. A penalty of $20.00 is
appropriate.
5. Citation No. 4339845 alleges that fire extinguishers
were not being visually inspected at least once a month in
vio-lation of section 56.4201(a)(1). The safety standard
provides, in part, that all fire extinguishers shall be
inspected visually at least once a month to determine that
they are fully charged and operable. Subsection (b)
provides that a record of the inspections must be kept. Mr.
Widows testified that the fire extinguishers did not
indicate whether monthly examinations were being made. (Tr.
119-20, 133, 135-36, 187-88). He stated that, typically,
markings are made at the extinguisher to note the inspections.
He further testified that when he asked Mr.
Peterson if examinations had been made, he replied that he
did not know that extinguishers had to be checked.
Finally, Mr. Widows stated that the fire extinguishers were
in operating condition.
On February 7, 1994, MSHA Inspector Mike J. Williams
issued Order No. 4340180 under section 104(b) of the Mine Act
because he determined that Tide Creek had not abated the
citation. The order states that no apparent effort was made
to visually inspect fire extinguishers every 30 days.
Inspector Williams testified that when he talked to Mr.
Peterson about the citation, he was told that he did not
have time to get to it because he was work-ing on abating
the more serious citations. (Tr. 207-09).
Mr. Williams stated that if Mr. Peterson had asked for more
time to abate the citation, he would have given it to him.
Id.
Tide Creek contends that the citation should be
vacated because it was issued for not having the proper
documentation to show that the fire extinguishers were
inspected. I disagree. Mr. Widows testified that Mr.
Peterson told him that they had not been examined.
Accordingly, I find that the Secretary estab-lished a
violation.
The citation was not abated within the time originally set
in the citation and Inspector Williams did not extend the
abatement time. He believed that Tide Creek had been given
sufficient time to inspect the fire extinguishers. I find,
however, that the inspector abused his discretion in not
extending the abatement time. There is no dispute that the
fire extinguishers were operational. It is also clear that
Tide Creek was engaged in trying to abate over 30 other
citations. Given that the extinguishers were in operating
condition, it was reasonable for the operator to give it a
lower priority. Inspector Williams testified that he would
have given Tide Creek an extension if it had asked.
At the hearing, Mr. Peterson impressed me as being a
rather stoic individual. He did not appear to be the type of
person who would ask for an extension or offer an excuse for
not abating a citation. He simply advised Mr. Williams that
he had been so busy with the other citations that he had not
been able to get to it. As a general matter, it is the
responsibility of a mine operator to ask for an extension.
Given the circumstances of this case, however, I find that
Mr. Peterson's failure to request an extension should be
excused. It only took about 15 minutes to abate the
citation. Based on the above, the order of withdrawal is
vacated.
I agree with Mr. Widows that the violation was not S&S and
was not serious. I find that Tide Creek's negligence was low.
A penalty of $5.00 is appropriate.
6. Citation No. 4339844 alleges that there was an
accumulation of combustible waste in the oil storage building
that could create a fire hazard in violation of section
56.4104(a). The safety standard provides that waste
materials, including liquids, shall not accumulate in
quantities that could create a fire hazard. The citation
states that a 30-inch diameter spill-age container contained
two to three inches of spilled oil and that persons are
required to enter the building to get supplies. Mr. Widows
testified that he observed the container with an inch or two
of spilled oil in it. (Tr. 37-40, 155-59; Ex. P-2). He
further said that the oil could be ignited by someone
smoking or by an open flame. He believed that the wooden
floor was also saturated with oil. He did not believe that
there was any electricity in the building. He testified
that Mr. Peterson told him that employees are not allowed to
smoke at the mine.
Mr. Paterson testified that the oil that Mr. Widows saw
was in a container that was placed under an oil drum to catch
any drips or spills. (Tr. 278-81, 359-61; Ex. R-10). The
container was directly under the spout of the oil drum. He
determined that oil was an inch and a quarter deep. He
testified that the oil was motor oil used in his mobile
equipment and that it does not ignite easily. He said that
the oil in the container under the drum was not waste
because he uses it to lubricate chains and other items at
the mine. He did not believe that it created a fire hazard
and that he offered to get a torch to show that it would not
ignite. Mr. Voris Probst, a former plant manager for Boise
Cascade, testified that the flash point of the motor oil at
the mine was so high that it did not pose a fire hazard.
(Tr. 385-86).
The Secretary argues that the citation should be affirmed
because "combustible" is defined as "capable of being
ignited and consumed by fire." He argues that the fact that
the oil is not easily ignited is not relevant. I disagree
and find that the Secretary failed to establish that the oil
in the drip pans created a fire hazard. I credit Tide
Creek's evidence that the oil was not easy to ignite. I
also find that there were no ignition sources in the area.
Accordingly, the citation is vacated.
7. Citation No. 4126440 alleges that there was no sign
prohibiting smoking and open flame at the oil storage
building in violation of section 56.4101. The safety
standard provides that readily visible signs prohibiting
smoking and open flames should be posted where a fire or
explosion hazard exists. Mr. Widows testified that anytime
there is a sufficient amount of materials to create a fire
or explosion hazard, a no smoking or open flame sign is
required. (Tr. 55, 171-72). He stated that no sign was
present. He also stated that he did not observe any smoking
or open flames. Mr. Peterson testified that he does not
believe that there is a fire or explosion hazard in the shed
because it is a long way from any ignition source. (Tr.
281-82).
Tide Creek contends that no fire or explosion hazard existed
in the shed. I disagree. As Exhibit P-2 shows, the shed
was filled with oil drums, paper, and miscellaneous items
that could catch fire. The fact that there were no ignition
sources in the shed is not relevant. The standard is
designed to warn people not to bring potential ignition
sources into the area. A ciga-rette could ignite paper and
rags in the shed, which could prop- agate a fire. I agree
with Mr. Widows that the violation is not S&S or serious. I
find that Tide Creek's negligence was low. A penalty of
$20.00 is appropriate.
8. Citation No. 4339857 alleges that the shop was not
maintained in a orderly fashion in violation of section
56.20003(a). The safety standard provides that workplaces,
passageways, storerooms, and service rooms shall be kept
clean and orderly. The citation states that numerous items
were a l over the floor creating a tripping hazard. It
alleges that per-sons are required to be in the shop to turn
on the lights and answer the phone. Mr. Widows testified
that there was junk, material, and equipment all over the
floor presenting a tripping hazard. (Tr. 72-73; Ex. P-9).
Mr. Peterson testified that he goes in and out of the shop
on a daily basis, often in the dark, and has never tripped
or stumbled. (Tr. 329-31). He stated that he follows the
trail shown on Exhibit P-9. He also stated that the shop is
for storage of tools only and that there is a phone outside
that most people use.
Based on the evidence, I find that the Secretary established
a violation. The cited area was not clean and orderly, and
a tripping hazard was created. I find that the violation
was not S&S or serious. Tide Creek's negligence was low. A
penalty of $5.00 is appropriate.
9. Citation No. 4126436 alleges that berms along the
roadway up to the pit were not maintained in violation of
section 56.9300. The safety standard provides, in part,
that berms shall be provided and maintained on the banks of
roadways where a drop-off of sufficient grade or depth
exists that could cause a vehi-cle to overturn or endanger
persons in equipment. The citation states that there was a
20-foot drop-off where a vehicle could overturn and roll
down. It also stated that pick-ups and front-end loaders
use the road. Mr. Widows testified that the cited roadway
was 20 to 30 feet wide and did not have any berms. (Tr. 50-
54, 168-71; Ex. P-5). He stated that he could see fresh
rubber tire tracks on the roadway. Mr. Peterson testified
that the road that was cited went from one level of the
quarry to another. (Tr. 283-91, 361-63; Ex. R-11). He
stated that this roadway is changed all the time because he
uses the Cat to push overburden over the hill and dig a new
road around to get the Cat back up. Id. He stated that on
the day of the inspection he had just created that road and
someone drove a loader down the road. There was no berm
because he had been working on it with the Cat. He stated
that he would not have put a berm on the roadway be-cause
the road was there only temporarily. He also testified
that it was not reasonably likely that anyone would drive
off the road. Id. He admitted, however, that if someone
drove off, he could be injured.
Based on the evidence, I find that the Secretary established
a violation. The cited area was a roadway with a drop-off
of sufficient grade or depth to cause a vehicle to overturn.
The roadway did not have a berm. Although a bench that is
not a roadway would not need to be equipped with a berm, I
find that the cited area was a roadway because it was used
by a front-end loader on at least one occasion. If only the
Cat had been on the bench as part of the mining process, it
would not appear that a berm would be required.
The Secretary contends that the violation was S&S. In
this case, however, the roadway was infrequently used. The
evidence shows that it was only used once by the front-end
loader and that the operator did not plan on keeping the
road for any period of time. Accordingly, I find that the
Secretary did not establish that it was reasonably likely
that the hazard contributed to by the violation would result
in an injury. See, e.g. Skelton Inc., 13 FMSHRC 294, 302-04
(February 1991)(ALJ); Lakeview Rock Prod-ucts, Inc., 17
FMSHRC 83, 90 (January 1995)(ALJ). I find that the
violation was not S&S. Tide Creek's negligence was low. A
penalty of $20.00 is appropriate.
10. Citation No. 4126434 alleges that several large trees
were observed along the perimeter of the pit in violation of
section 56.3131. The safety standard provides, in part,
that loose or unconsolidated material shall be sloped back
for at least ten feet from the top of a quarry wall in
places where people work or travel. It also states that
other conditions at or near the perimeter of a quarry wall
which create a fall-of-material hazard shall be corrected.
The citation states that the trees were 20 to 40 feet high
and the quarry perimeter was not stripped back at least ten
feet. In addition, the citation states that the trees
created a falling hazard for persons work-ing in the quarry.
Mr. Widows testified that a couple of trees were leaning
over near the edge of the quarry and the roots were exposed.
(Tr. 46-50, 165-66, 186, 196-97; Ex. P-4). He believed that
the trees could fall into the quarry and injure someone. He
stated that the area had been recently worked and that the
wet conditions could cause the trees to fall. He did not
know how long the trees had been there or what kind they
were.
Mr. Peterson testified that the cited trees were maple trees
that were six to eight feet back from the edge of the bank.
(Tr. 314-16, 369-70). He stated that the trees were not
leaning towards a work area. He also stated that maple
trees are tough to push down because of their extensive root
system. He stated that there was no danger of the cited trees
falling over into the quarry. Mr. Peterson is an experienced
logger. (Tr. 231). Mr. Voris Probst, a former plant manager for
Boise Cascade and experienced logger, testified that maple
trees do not come down easily. (Tr. 393).
I find that the Secretary did not establish that the trees
created a fall-of-material hazard to employees working in
the quarry. I credit the testimony of Peterson and Probst
in this regard. Exhibit P-4, upon which the Secretary puts
significant weight, is not persuasive. There was simply no
proof that there was a risk that the cited trees would fall
into the quarry. Accordingly, this citation is vacated.
11. Citation No. 4126431 alleges a violation of 30 C.F.R.
� 41.20, dealing with legal identity reports. At the hearing,
the Secretary agreed to vacate this citation. (Tr. 75).
12. Citation No. 4126432 alleges a violation of 30 C.F.R.
� 50.30, dealing with quarterly employment reports. At the
hearing, Tide Creek agreed to pay the penalty proposed by
MSHA for this citation. (Tr. 6).
13. Citation No. 4340642 alleges a violation of section
103(a) of the Mine Act. At the hearing, the Secretary agreed
to vacate this citation. (Tr. 6).
II. CIVIL PENALTY ASSESSMENTS
Based on the criteria in section 110(i) of the Mine Act, 30
U.S.C. � 820(i), I assess the following civil penalties as
discussed above:
Assessed
Citation Nos. 30 C.F.R. � Penalty
WEST 94-369-M
4126431 41.20 vacated
4126437 56.14132(b)(1) $100.00
4126439 56.14100(a) vacated
4339852 56.16005 20.00
4339821 56.14107(a) 20.00
4339822 56.12021 20.00
4339826 56.18002(b) 20.00
4339847 56.11002 vacated
4339853 56.12032 20.00
4339855 56.14107(a) 20.00
4339856 56.14107(a) 20.00
4339858 56.14107(a) vacated
WEST 94-379-M
4126433 56.1000 vacated
4339849 56.11002 vacated
4340482 56.16005 20.00
WEST 94-492-M
4339844 56.4104(a) vacated
4340483 56.12032 20.00
4340484 56.12018 20.00
WEST 94-493-M
4126434 56.3131 vacated
4126436 56.9300(a) 20.00
4126440 56.4101 20.00
4339823 56.12025 vacated
4339824 56.12028 50.00
4339846 56.11002 vacated
4339851 56.14107(a) 20.00
4339854 56.12013 vacated
4339857 56.20003(a) 5.00
WEST 94-638-M
4339845 56.4201(a)(1) $ 5.00
4339859 56.14107(a) 50.00
4339860 56.14107(a) 50.00
4340481 56.14131(a) 20.00
WEST 95-48-M
4126432 50.30 100.00
WEST 95-275-M
4340642 �103(a) vacated
Total Penalty $640.00
III. ORDER
Accordingly, the citations listed above are VACATED or
AFFIRMED as indicated, and Tide Creek Rock, Inc. is ORDERED TO PAY
the Secretary of Labor the sum of $640.00 within 30 days of the date
of this decision. Any amount previously paid for the settled
citation should be credited against this amount.
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)
Paul A. Belanger,
Conference and Litigation Representative,
Mine Safety & Health Administration,
3333 Vacavalley Parkway, #600,
Vacaville, CA 95688
(Regular Mail)
Agnes M. Peterson, Esq,
TIDE CREEK ROCK, INC.,
33625 Tide Creek Road,
Deer Island, OR 97054
(Certified Mail)
RWM