.
ROYAL CEMENT COMPANY, INC.
July 26, 2001
WEST 2000-474-M
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
303-844-3577/FAX 303-844-5268
July 26, 2001
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2000-474-M
Petitioner : A.C. No. 26-01977-05528
:
v. :
: Royal Cement
ROYAL CEMENT COMPANY, INC., :
Respondent :
DECISION
Appearances: Steven R. DeSmith, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California,
for Petitioner;
Patricia D. Ceron, Esq., Logandale, Nevada, for
Respondent.
Before: Judge Manning
This case is before me on a petition for assessment of civil
penalty filed by the Secretary of Labor, acting through the Mine
Safety and Health Administration ("MSHA"), against Royal Cement
Company, Inc., ("Royal"), 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"). A hearing was held in Las Vegas, Nevada.
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Royal operates a quarry and cement plant (the "plant") in
Clark County, Nevada. An accident occurred at the plant on July
1, 1999, that killed Robert Dotts, an electrician. The plant was
not operating at the time and had been shut down for about 17
months. The plant was being rebuilt and modernized at the time
of the accident. Mr. Dotts was in the process of replacing a
transformer when he was electrocuted.
At the conclusion of MSHA's investigation of the accident,
MSHA Inspector John Widows issued Citation No. 4394965 under
section 104(a) of the Mine Act alleging a violation of 30 C.F.R.
� 56.14100(b). The condition or practice section of the citation
states:
A fatal accident occurred at this mill on
July 1, 1999, when a contractor electrician
was electrocuted when he contacted an
energized 4160 volt cable inside the crusher
and finish grinding transformer. The flicker
switches (knife blades) in the interrupter
switches for the transformer were defective
in that they did not open when the switch was
tripped due to an accumulation of dust and
dirt. With the switches stuck in the closed
position, power was inadvertently supplied to
the 4160 volt transformer.
In the citation, Inspector Widows determined that the violation
was of a significant and substantial nature ("S&S"), was serious,
and that Royal's negligence was moderate. The Secretary proposes
a penalty of $25,000 for this violation under her special
assessment regulation at 30 C.F.R. � 100.5. The safety standard
provides, as follows:
Defects on any equipment, machinery, and
tools that affect safety shall be corrected
in a timely manner to prevent the creation of
a hazard to persons.
Royal was started by Aldo DiNardo in the late 1980s. Mr.
DiNardo bought a used cement plant, had it transported to Nevada,
and set it up in the Logandale area, which is about 60 miles from
Las Vegas. Mr. Dotts was associated with Royal for a
considerable length of time. He was first hired in 1990 to work
under another electrician. When that electrician was terminated,
Dotts became the electrical supervisor at the plant. Because Mr.
DiNardo had little knowledge of electrical systems, he relied on
Mr. Dotts to perform all electrical services and to keep him
informed of any electrical problems. (Tr. 64-65, 81-82, 88).
Although Mr. Dotts performed some of the electrical work himself,
he also supervised other Royal employees who performed electrical
work under his direction.
At some point in time, Dotts asked DiNardo if his status
could be changed from a Royal employee to an independent
contractor. Dotts apparently made this request because of tax
problems and because he wanted to be able to do electrical work
for others. (Tr. 62-63). DiNardo testified that Dotts basically
put this request in the form of an ultimatum that he would quit
if he could not become an independent contractor for Royal.
DiNardo granted Dotts' request in spite of the fact that it cost
Royal more money because he believed that Dotts was a good
electrician who was familiar with the plant. As an independent
contractor, Mr. Dotts worked under the name Dotts Electric. He
lived in Las Vegas where DiNardo believes he did electrical work
for others. The parties dispute when Mr. Dotts became an
independent contractor. DiNardo testified that Dotts was an
independent contractor by the mid 1990's, while the Secretary
contends that this change occurred 12 to 18 months prior to the
accident.
In March 1998, DiNardo shut down the plant because it was
losing money and he owed about $700,000 to creditors. (Tr. 69-
70). He testified that Royal was too undercapitalized to be
successful. DiNardo traveled to California to raise capital and
also found three additional principals to invest in the plant.
By the spring of 1999, DiNardo decided that he could reopen the
plant with the objective of starting production in September
1999. Mr. Dotts was contacted to upgrade the electrical system
at the plant. Other independent contractors provided services at
the plant to get it back into production.
On July 1, 1999, Dotts was at the plant to install a new
transformer for the crusher finish grinding circuits. He was
working alone at the time of the accident but there were other
people working at the plant. Based on the investigation
conducted by MSHA, with the cooperation of Royal, it appears that
the following events occurred, as set forth in MSHA's accident
report. (Ex. P-3). Several weeks before the accident, Dotts
opened (shut off) the circuit breaker for the transformer circuit
and also opened the load interrupter switch for that same
circuit. Dotts locked out the load interrupter switch with his
own lock, but did not lock out the circuit breaker. He then
disconnected the leads from the old transformer. As a result of
a power outage at the plant some days later, all of the circuit
breakers tripped open. Dotts flipped them back to the closed
(on) position once power was restored to the plant, including the
circuit breaker for the transformer at issue in this case.
Dotts was at the plant on July 1 to install the new
transformer, which had arrived the day before. The transformer
was rated at 4.16 KV - 480 V, 1000 KVA . Because the circuit
breaker was closed, power was being supplied to the load
interrupter switch for the transformer. This load interrupter
switch, manufactured by Square D Electrical Company, is operated
by pulling a large lever on the front of cabinet. When the lever
is up, power is being supplied to the circuit. When the lever is
down, power should be cut off. At the time of the accident, the
lever was down and locked so that it could not be pulled up.
This lever controls both the main electrical contacts and the
arcing contacts inside the cabinet. Both the main and arcing
contacts must be disengaged in order to shut off the power and
both are controlled by the same lever. The arcing contacts are
operated by a spring so that when the lever is pulled down a
spring pulls the knife blades away from the contacts thereby
disengaging the circuit. They are often called "flicker blades"
because they flick out of the contacts when the lever is pulled.
This feature is incorporated into the interrupter switch to
prevent potentially hazardous arcing when opening and closing the
circuit. One can look into the cabinet through a window on the
front to see if these flicker blades have disengaged when the
lever is pulled down. (Tr. 18-19, 26; Ex. P-15).
When representatives from Royal and MSHA looked into the
window on the cabinet of the load interrupter switch during
MSHA's investigation, they discovered that the flicker blades
were still engaged. Royal relied upon John Zeller, an engineer
with the firm of Grove Madsen Industries, to provide technical
assistance during the investigation. (Ex. P-17). The cabinet was
opened and Mr. Zeller cleaned the flicker blades and contacts
with an aerosol cleaner. (Tr. 48). After the blades were
cleaned, the spring-operated flicker blade mechanism functioned
properly. Because the plant had been shut down for about 17
months, dirt and grime had accumulated around the flicker blades
which prevented them from working properly. In his report, Mr.
Zeller stated that "[l]ack of maintenance and accumulations of
dust and dirt will cause this type of anomaly in load switches of
this type." (Ex. P-17). He recommended regular preventive
maintenance and inspection of the switch. It appears that when
Mr. Dotts pulled down and locked out the lever to shut off the
power, he did not look through the window to make sure that the
blades had "flicked out" and he had not cleaned the blades prior
to removing the old transformer. When he removed the old
transformer, power had also been shut off at the circuit breaker
so Dotts was not endangered. Because Dotts had flipped on all of
the circuit breakers following the power outage, power was being
supplied to the load interrupter switch on July 1. As the
flicker blades were stuck in the closed position, power was being
supplied to the bare electrical leads Dotts was going to connect
to the new transformer. He was found lying motionless on the
ground in front of the open transformer box at 6:55 am. It is
the Secretary's position that it was the responsibility of Royal
to make sure that the flicker blades were in proper working
condition. (Tr. 12, 26).
At the conclusion of the investigation, Inspector Widows
issued the contested citation to Royal. He also issued a section
104(d)(1) citation to Dotts Electric charging a violation of
section 56.12107 for Dotts' failure to lock out and tag out the
circuit breaker.
Royal makes a number of arguments in its trial brief.
First, it maintains that it fully complied with the provisions of
section 56.14100(b) by selecting the most qualified licensed
electrician to perform the specialized electrical tasks necessary
to safely reopen the plant. Although Mr. Dotts had been a Royal
employee in the past, Dotts Electric was an independent
contractor at the time of the accident. Royal maintains that it
acted reasonably in relying on Dotts' expertise. Dotts was in
complete control over all the electrical work necessary to
restart the plant in September 1999. Royal believes that it
would have been foolhardy for Mr. DiNardo or any other
representative of Royal to "go behind" Mr. Dotts and supervise
his work because Dotts knew more about it than DiNardo or other
Royal employees.
Royal states that MSHA violated its own enforcement
guidelines for issuance of citations involving independent
contractors. III MSHA, U.S. Dep't of Labor, Program Policy
Manual, Part 45. The MSHA guideline provides that enforcement
action "against a production-operator for a violation involving
an independent contractor is normally appropriate in any of the
following situations: (1) when the production-operator has
contributed by either an act or by an omission to the occurrence
of a violation in the course of an independent contractor's work;
(2) when the production-operator has contributed by either an act
or omission to the continued existence of a violation committed
by an independent contractor; (3) when the production- operator's
miners are exposed to the hazard; or (4) when the
production-operator has control over the condition that needs
abatement." Id. Royal contends that it does not fit into any of
these categories because Dotts Electric was in control of the
condition; Royal did not contribute to the violation; and Royal's
employees were not exposed to the hazard. Royal maintains that
Dotts Electric had the responsibility to inspect the flicker
blades to ensure they were operating properly prior to doing
electrical work on the circuit. As a consequence, it argues that
Dotts Electric was solely responsible for the violation.
MSHA's guidelines relied upon by Royal are not binding on
the Secretary. Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d
533, 536-538 (D.C. Cir. 1986). Production operators are strictly
liable for the violations of their independent contractors. See
Cyprus Indus. v. FMSHRC, 664 F.2d 1116, 1119-20 (9th Cir. 1981).
Consequently, Royal's argument that it is not liable for the
violation of section 56.14100(b) is rejected.
I find that the Secretary established a violation of section
56.14100(b). A defect in the flicker blades was not corrected in
a timely manner to prevent creation of a hazard to persons. The
defect was that dust and dirt had been allowed to accumulate on
the blades. This accumulation affected safety because it
prevented the flicker blade switch from functioning properly.
The flicker blades must disengage in order to shut off the power.
Under the Mine Act, a production operator such as Royal is
strictly liable for violations that occur at its facility.
"[W]hen a violation of a mandatory safety standard occurs in a
mine, the operator is automatically assessed a civil penalty."
See, e.g. Asarco v. FMSHRC, 868 F.2d 1195, 1197
(10th Cir. 1989). Although Mr. Dotts should have inspected and
cleaned the flicker blades before commencing work, Royal bears
some responsibility as the production operator.
In the alternative, Royal argues that the Secretary should
not have applied MSHA's special assessment regulations at 30
C.F.R. 100.5 when proposing a penalty in this case. It contends
that, in doing so, the Secretary failed to properly consider the
civil penalty criteria. The Secretary's penalty regulations are
not binding on the Commission. Commission administrative law
judges must assess an appropriate penalty de novo based on the
six statutory criteria specified in section 110(i) of the Mine
Act. 30 U.S.C. � 820(i). Sellersburg Stone Co., 5 FMSHRC 287,
291-92 (March 1983), aff'd 376 F.2d 1147, 1150-51 (7th Cir.
1984). I base the penalty in this case on the evidence presented
at the evidentiary hearing not on the Secretary's Part 100
regulations.
II. APPROPRIATE CIVIL PENALTIES
Section 110(i) of the Mine Act sets out six criteria to be
considered in determining appropriate civil penalties. The
Secretary submitted information concerning the history of
violations at the plant but it included four citations issued
more than 24 months prior to the fatal accident. I find that 16
citations were issued at the plant during the 24 months prior to
the date of the accident. The Secretary presented information
that the plant worked over 66,000 man-hours during 1999. That
figure includes work performed during the months following the
accident when the plant was in operation. I find that Royal was
a small- to medium-sized operator. The violation was rapidly
abated in good faith. The penalty assessed in this decision will
not have an adverse effect on Royal's ability to continue in
business.
I find that the violation was serious and I affirm Inspector
Widow's significant and substantial determination. I find that
Royal's negligence was very low. I considered the evidence and
arguments presented by Royal with respect to its relationship
with Mr. Dotts. Royal hired Dotts Electric based on its past
experience with his work as a licensed electrician. It was
reasonable for Royal to rely on Mr. Dotts's electrical expertise.
It was also reasonable for Royal to believe that he would follow
safe procedures, especially since he was the one who was
personally exposed to the hazards presented by his work. I
reject the Secretary's argument that Dotts was an independent
contractor in name only. The fact that Dotts was once an
employee and supervised Royal employees in performing electrical
work prior to the March 1998 shutdown does not change the fact
that on July 1, 1999, he was working as an independent
contractor. The Secretary does not dispute his independent
contractor status. (Tr. 21-22; Ex. P-3). MSHA's reliance on
Royal's safety rules on lockout procedures is not well taken
because the contested citation does allege such a violation.
(Tr. 26-27; Ex. P-16 p. 16). As an electrician, Mr. Dotts was in
a position to know more about the operation of the flicker blades
than Royal's employees. (See Tr. 17). Based on the penalty
criteria, I find that a penalty of $5,000 is appropriate. The
reduction in the penalty is based primarily on my finding that
Royal's negligence was quite low.
III. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30
U.S.C. � 820(i), I assess the following civil penalty:
Citation No. 30 C.F.R. � Penalty
4394965 56.14100(b) $5,000.00
Accordingly, Citation No. 4394965 is AFFIRMED, except
that the degree of negligence is lowered from moderate to very
low, and Royal Cement Company, Inc., is ORDERED TO PAY the
Secretary of Labor the sum of $5,000.00 within 30 days of the
date of this decision. Upon payment of the penalty, this
proceeding is DISMISSED.
Richard W. Manning
Administrative Law Judge
Distribution:
Steven R. DeSmith, Esq., Office of the Solicitor, U.S. Department
of Labor, 71 Stevenson St., Suite 1110, San Francisco, CA 94105-
2999 (Certified Mail)
Patricia D. Ceron, Esq., Royal Cement Co., P.O. Box 380,
Logandale, NV 89021 (Certified Mail)
RWM