FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1244 SPEER BOULEVARD #280

DENVER, CO 80204-3582

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

April 7, 2008

DECISION

Appearances:               Jennifer Casey, Esq, and Kristi Henes, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, and Ronald Pennington, Conference & Litigation Representative, Mine Safety and Health Administration, Denver, Colorado, for Petitioner;

Paul M. Nelson, Nelson Quarries Inc., Gas, Kansas, for Respondent.

Before:                         Judge Manning

             These cases are before me on 16 petitions for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Nelson Quarries, Inc., 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 cases involve 100 citations and orders issued by MSHA under sections 104(a) and 104(d)(1) of the Mine Act at five plants operated by Nelson Quarries. The parties presented testimony and documentary evidence at the hearing held in Topeka, Kansas, and filed post-hearing briefs on a few of the citations.

             At all pertinent times, Nelson Quarries operated five quarries in Allen and Crawford Counties, Kansas. The quarries mine limestone and then crush and screen the material for sale. The operations are portable. Three of these facilities operate intermittently and the other two operate full-time. The oldest quarry has been operating since 1985 and the newest quarry was opened in 2004. Most of the citations at issue in these cases were issued after a hazard complaint was filed by a former employee of Nelson Quarries. The complaint listed 14 alleged hazards. Some of the hazards complained of were general, such as the ones that stated “Nelson Quarries’ properties are unsafe to everyone who works in them” and “electricity is bad [at] all plants.” (Tr. 35-36; Exs. G-1, G-11). Others were more specific, such as one that stated that “explosives are left unguarded and hid around the plant to save time and money.” Id. This complaint was with respect to Plant 4. As a result of this complaint, inspectors from MSHA’s Topeka, Kansas, office conducted a comprehensive inspection of all five quarries. Because MSHA’s Topeka office did not have an electrical inspector, an electrical inspector was brought in from Salt Lake City, Utah, to inspect the electrical systems at all five plants. (Tr. 138). MSHA determined that about half of the hazards complained of had some validity. Nelson Quarries received more citations during these inspections than it had ever received. All of the citations discussed below were issued under section 104(a) of the Mine Act unless otherwise noted.

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

             A. Discussion of General Issues Raised by Nelson Quarries

             Nelson Quarries raised a number of general issues that are applicable to all or most of the citations at issue. First, it argues that the Secretary failed to demonstrate that accidents could result from many of the cited conditions. For example, it contends that an injury could only result from an employee’s intentional misconduct in many of the conditions cited under the Secretary’s guarding standard. It maintains that the Secretary failed to establish any likelihood of an injury to employees as a result of the cited conditions.

             The Federal Mine Safety and Health Review Commission and the courts have uniformly held that mine operators are strictly liable for violations of safety and health standards. See, e.g. Asarco v. FMSHRC, 868 F.2d 1195 (10^th Cir. 1989). “[W]hen a violation of a mandatory safety standard occurs in a mine, the operator is automatically 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. If conditions existed which violated the regulations, citations [are] proper.

Allied Products, Inc., 666 F.2d 890, 892-93 (5^th Cir. 1982)(footnote omitted). The negligence of the operator and the degree of the hazard created by the violation are taken into consideration in assessing a civil penalty under section 110(i). 30 U.S.C. § 820(i). Thus, a violation is found and a penalty is assessed even if the chance of an injury is not very great. The risk of injury and the appropriate penalty for each citation is discussed below.

             The Commission interprets safety standards to take into consideration “ordinary human carelessness.” Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (September 1984). In that case, the Commission held that the guarding standard must be interpreted to consider whether there is a “reasonable possibility of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness.” Id. Human behavior can be erratic and unpredictable. For example, someone might attempt to perform minor maintenance or cleaning near an unguarded tail pulley without first shutting it down. In such an instance, the employee’s clothing could become entangled in the moving parts and a serious injury could result. Guards are designed to prevent just such an accident. The fact that no employee has ever been injured by an unguarded tail pulley at Nelson Quarries’ operations is not a defense because there is a history of such injuries at plants throughout the United States. “Even a skilled employee may suffer a lapse of attentiveness, either from fatigue or environmental distractions. . . .” Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983). For example, fatal accidents have occurred at small operations as a result of inadequately guarded tail pulleys. See Darwin Stratton & Son, Inc., 22 FMSHRC 1265 (Oct. 2000) (ALJ).

             Nelson Quarries also contends that many of the conditions cited by the MSHA inspectors existed during previous MSHA inspections. It states that MSHA did not issue citations for these conditions until the present inspections when the company came under tougher scrutiny, especially with respect to the guarding citations that were issued. Thus, it contends that it did not receive fair notice of MSHA’s new interpretation of the safety standard.

             The Secretary must provide fair notice of the requirements of broadly written safety standards. Such standards are “simple and brief in order to be broadly adaptable to myriad circumstances.” Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (November 1981); Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (December 1992). Such broadly written standards must afford notice of what is required or proscribed. U.S. Steel Corp., 5 FMSHRC 3, 4 (January 1983). In “order to afford adequate notice and pass constitutional muster, a mandatory safety standard cannot be ‘so incomplete, vague, indefinite, or uncertain that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application’ ” Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990)(citation omitted). A standard must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Lanham Coal Co., 13 FMSHRC 1341, 1343 (September 1991).

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

Id. (citations omitted). To put it another way, a safety standard cannot be construed to mean what the Secretary intended but did not adequately express. “The Secretary, as enforcer of the Act, has the responsibility to state with ascertainable certainty what is meant by the standard he has promulgated.” Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5^th Cir. 1976). I discuss the application of this “fair notice” issue to particular citations in more detail below.

             Finally, Nelson Quarries contends that the individual at each quarry who functioned as a lead man was not an agent of the company despite the fact that at the time of the subject inspections each of these individuals had the title “foreman.” It maintains that these employees were rank and file miners who were only given a few ministerial functions.

             As a general matter, a mine operator can be held liable for the acts of its agents. An agent is defined at section 3(e) of the Mine Act as “any person charged with responsibility for the operation of all or part of a . . . mine or the supervision of miners in a . . . mine.” The Commission has held that the negligence of an agent of a mine operator must be considered when determining the operator’s negligence in assessing a civil penalty under section 110(i) of the Mine Act and when evaluating an unwarrantable failure allegation. Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-97 (Feb. 1991).

When deciding whether a miner is an agent of an operator, the Commission has focused on the miner’s function and not his job title. It has examined whether the miner’s function involved responsibilities normally delegated to management personnel and whether his responsibilities were crucial to the mine’s operation. It has also considered whether the miner exercised managerial responsibilities at the time of his negligent conduct.

Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000) (citations omitted). The conduct of a rank-and-file miner, “may not, absent agency, be imputed to the operator.” Whayne Supply Co., 19 FMSHRC 447, 454 (Mar. 1997) (emphasis in original). I discuss the application of these agency issues to particular citations in more detail below.

             B. CENT 2006-151-M, Plant 4.

             1. On November 15, 2005, Inspector Dustan Crelly issued Citation No. 6291250 under section 104(d)(1) of the Mine Act alleging a violation of section 56.6130(a). (Ex. G-13). The citation alleges that two partial rolls of primer (shock tube) were stored in the parts trailer. The citation states that the “rolls of explosive material were under the shelves” in the trailer. The citation also states that Foreman Gene Andres told the inspector that this material had been in the trailer since at least June 2005. Inspector Crelly determined that an injury was reasonably likely and that any injury would likely be fatal. He determined that the violation was significant and substantial (“S&S”) and that the negligence was high. The safety standard provides that “[d]etonators and explosives shall be kept in magazines.” The Secretary proposes a penalty of $1,000.00 for this citation.

             Inspector Crelly testified that the legal identity report for Plant 4 lists Gene Andres as the foreman. (Tr. 185; Ex. G-10). Mr. Andres also confirmed this fact during the inspection. (Tr. 189-90). Inspector Crelly was looking for improperly stored explosives because of the allegations in the hazard complaint. (Tr. 190). Shock tube is a low explosive that is used as the lead line to detonate high explosives. (Tr. 191). The shock tube was an explosive and it was not stored in a magazine. The inspector testified that Mr. Andres told him that he knew that the shock tube was being stored in the parts trailer. (Tr. 194, 216). Inspector Crelly determined that the citation was S&S because shock tube is classified as an explosive, it was not stored in an isolated area, and there were cigarette butts in and around the trailer. (Tr. 198-99). The shock tube was not in the original manufacturer’s packaging or any other container. As a consequence, it could be contaminated by grit and sand, which would render it more sensitive to detonation. (Tr. 200). If something were to fall off a shelf and strike the shock tube, it could easily detonate. Miners enter the trailer every day.

             Inspector Crelly determined that the violation was the result of the operator’s unwarrantable failure to comply with the safety standard. He based this determination on the fact that Foreman Andres knew that the shock tube was present and he did not take any action to remove it from the parts trailer. (Tr. 202). The shock tube was in plain view. The condition was abated when the shock tube was moved to the magazine. (Tr. 203).

             Thomas E. Lobb, a physical scientist with MSHA in Triadelphia, West Virginia, testified on behalf of the Secretary by telephone. He conducts investigations into accidents that involves explosives. (Tr. 222; Ex. G-14). He also provides training in blasting safety and provides technical assistance to industry. He testified that shock tube is an explosive material, but its strength is limited so that it is relatively safe to anyone standing more than 25 meters away. (Tr. 225- 38; Ex. G-14b). He testified that this product presents a fire hazard. In addition, improper storage or mishandling can cause misfires when the shock tube is used. (Tr. 239-41). Misfires are one of the top five causes of blasting accidents. Id.

             Jon Bruner, who is in charge of product management for Dyno-Nobel, Inc., testified on behalf of Nelson Quarries by telephone. He does not have a technical or scientific background. (Tr. 257). He testified that shock tube is not a high explosive. (Tr. 246-49). If the shock tube were ignited, it could cause burning injuries if it were in your hand, but it would not explode and it would not cause a fatal injury. (Tr. 251). He stated that if a spool of shock tube were accidently shot, an injury would be unlikely. (Tr. 253). He admitted that shock tube is a low explosive and must be stored in a magazine under MSHA’s regulations. (Tr. 256-57). He also admitted that the presence of dirt, sand, and grit could make the shock tube more sensitive to detonation. (Tr. 264).

             Patrick Clift, a foreman at Plant 4 for Nelson Quarries, testified that he was not aware that the shock tube was in the parts trailer. He stated that he was the only foreman at plant 4. (Tr. 274, 276). When he was interviewed by MSHA on February 2, 2006, he stated that Gene Andres was also a plant foreman. (Tr. 280-81; Ex. G-137h, p. 4). The mine’s legal identity report lists Mr. Andres as the foreman and the person in charge of safety. (Tr. 281-83). Nelson Quarries has now given Mr. Andres the title of “lead man.” (Tr. 284).

             Gene Andres testified that he was not really a foreman at the time of the MSHA inspection, but he was the person in charge at Plant 4. (Tr. 293). He was not a foreman because he did not have the power to hire and fire employees or to discipline them. (Tr. 294). He can always call the foreman when important decisions need to be made. He testified that the parts trailer was not lighted. He was not aware that the shock tube was present until the inspector found it. (Tr. 295). Although he performs the daily workplace examinations, he does not walk all the way to the back of the trailer. He just makes sure that there is a clear walkway to the back of the trailer. He made sure that there was access to the back of the trailer, but he did not notice the shock tube when he performed his examination that Monday. (Tr. 309-10). He denies that he admitted to Inspector Crelly that he knew that the shock tube was in the trailer. He said that after June 2005, Buckley Powder Company did all of the blasting at the mine and that, therefore, the shock tube must have been present since that date. (Tr. 296).

             During his interview with an MSHA inspector in February 2006, Andres referred to himself as the “plant foreman,” he said that he “direct[ed] the work force,” and he had the authority to tell “the workers what to do.” (Tr. 307; Ex. G-137g, p. 2). He also stated that although he did not have the authority to hire or fire anyone or to discipline anyone, he could “recommend that they be disciplined or maybe talk to them if they do something wrong.” Id. In this same interview with MSHA, Andres further stated that he does not inspect the parts trailer “because no one works in the parts trailer.” (Tr. 310; Ex. G-137g, p. 4).

             In its brief, Nelson Quarries makes two arguments. First, it argues that the inspector was confused about the nature of the material in the parts trailer. Shock tubing, by itself, cannot set off explosives because it is not strong enough. It contains 15 milligrams of HMX/aluminum powder per meter. Any combustion would have been contained within the plastic tubing. Without a detonator present, the shock tube did not pose a hazard to miners. The accidents cited by MSHA occurred after the shock tubing had been inserted into a detonator. Second, Nelson Quarries argues that Gene Andres was not its agent but was simply a lead man. The only foremen were Mike Peres and Patrick Clift and only their actions can be imputed to Nelson Quarries. It relies on the Commission’s decision in Martin Marietta Aggregates and on the unpublished decision of the 9^th Circuit in Original Sixteen to One Mine, Inc. v. FMSHRC, 175 Fed. Appx. 825, 2006 WL 897570.

             I find that the shock tube is an explosive as that term is used in the safety standard. Thomas Lobb testified that shock cord is classified as an explosive and is required to be stored in a magazine. (Tr. 225-37; Ex. G-14b). While it is not likely that the shock tube would create a serious explosion hazard, it could help propagate a fire. In addition, he testified that shock tube can misfire when handled or stored improperly. I credit the testimony of Mr. Lobb. As a consequence, the Secretary established a violation because the shock tube was not stored in a magazine.

             A violation is classified as S&S “if based upon the facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission set out a four-part test for analyzing S&S issues. Evaluation of the criteria is made assuming “continued normal mining operations.” U. S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 1988). The Secretary must establish: (1) the underlying violation of the safety standard; (2) a discrete safety hazard, a measure of danger to safety, contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. The Secretary is not required to show that it is more probable than not that an injury will result from the violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).

             The Secretary established a violation and that a discrete safety hazard was created. I also find that it was reasonably likely that the hazard contributed to would result in an injury assuming continued mining operations. Smoking was not prohibited in the area, cigarette butts were found in and around the trailer, and the shock tube would vigorously burn in the event of a fire. (Tr. 199). Anyone in the trailer was exposed to the hazard. In addition, if the shock tube were used, it could misfire because it had not been properly stored. Any injury would be of a reasonably serious nature. I find that the Secretary established that the violation was S&S.

             Unwarrantable failure is defined as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Id. 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. A number of factors are relevant in determining whether a violation is the result of an operator’s unwarrantable failure, such as the extensiveness of the violation, the length of time that the violative condition has existed, the operator’s efforts to eliminate the violative condition, whether an operator has been placed on notice that greater efforts are necessary for compliance, the operator’s knowledge of the existence of the violation, and whether the violation is obvious or poses a high degree of danger. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001).

             It is clear that the shock tube had been in the parts trailer for some time. Inspector Crelly testified that Mr. Andres told him that he knew it was there. (Tr. 194, 216). The inspector wrote the following in his citation notes: “Gene Andres, foreman, stated that he knew this explosive material should not have been stored in this parts trailer and it had been since at least 6/2005" (Ex. G-13b). The shock tube was in plain view and the inspector saw it upon entering the trailer. Andres testified that he did not know that the shock tube was present and that, when he conducted his daily examinations, he did not walk to the back of the trailer where the shock tube was stored. He admitted that it is likely that the shock tube had been in the parts trailer since June because that is when Nelson Quarries stopped performing its own blasting.

             I find that the Secretary established that the violation was the result of the operator’s unwarrantable failure. Inspector Crelly testified that the condition was obvious and that he observed the shock tube when he entered the trailer. The record also establishes that the condition had existed for some time. I credit Crelly’s testimony and inspection notes on this issue and find that Andres was aware that it was present.

             I find that Mr. Andres was an agent of Nelson Quarries in this instance. Andres accompanied MSHA inspectors during inspections as the company’s representative and he acted in that capacity during the instant inspection. (Tr. 188). When Inspector Crelly started his inspection, Mr. Andres told him that he was the foreman. Andres was listed as a foreman and as a person in charge of health and safety in MSHA’s legal identity report. (Tr. 185; Ex. G-4). Andres was responsible for conducting the daily workplace examinations at the plant. The Commission has held that a miner is the agent of a mine operator when carrying out the required examinations entrusted to him by the operator. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189 ,194 (February 1991). Andres was compensated at a higher rate of pay than other employees. When interviewed on February 1, 2006, by an MSHA special investigator, Andres stated that he was a foreman and that he had the authority to direct the workforce, assign tasks, shut down equipment for safety conditions, and recommend that an employee be disciplined or terminated. (Tr. Ex. G-137g). Peres and Clift travel from plant to plant with the result that Andres was in charge of Plant 4 when neither Peres nor Clift was around. Although Andres could not hire or terminate an employee, he made recommendations to Peres and Clift. I find that Mr. Andres sufficiently meets the Commission’s multi-factor test for the imputation of an agent’s negligence to a mine operator for purposes of penalty assessments and unwarrantable failure findings as set forth in Martin Marietta Aggregates, 22 FMSHRC 633, 636-40 (May 2000). The fact that only Nelson family members could make the ultimate decision on disciplinary issues does not negate the fact that other individuals, including Andres, were given responsibilities that are normally delegated to management personnel. (Tr. 274).

             I also find that the court’s decision in Original Sixteen to One does not support the position of Nelson Quarries. That case was factually driven and the court specifically determined that there was “no evidence in the record that [the lead man’s] function ‘involved responsibilities normally delegated to management personnel,’ or that he ‘exercised managerial responsibilities at the time of his negligent conduct.’ ” (quoting Martin Marietta Aggregates). The court found that the lead man’s authority to assign tasks to the other miners with whom he was working that day is not by itself sufficient to support a finding that he is an agent. It is clear to me that Andres had more authority at the plant than the lead man at the Sixteen to One Mine.

             For the reasons set forth above, the citation is affirmed as written. I find that the Secretary’s proposed penalty of $1,000.00 is appropriate taking into consideration the penalty criteria set forth in section 110(i) of the Mine Act.

             2. On November 16, 2005, Inspector Crelly issued Order No. 6291251 under section 104(d)(1) of the Mine Act alleging a violation of section 56.6300(b). (Ex. G-15). The citation alleges that the crusher operator shot oversized material out of the hopper at the crusher and he was neither trained nor experienced with the handling and use of explosive material. The citation states that Mr. Andres told the inspector that the “hopper has to be shot whenever an oversized rock is sent to the crusher and the crusher operator is not qualified to handle explosives and he was aware of this.” (Ex. G-15). Inspector Crelly determined that an injury was reasonably likely and that any injury would likely be fatal. He determined that the violation was S&S and that the negligence was high. The safety standard provides that “[t]rainees and inexperienced persons shall work only in the immediate presence of persons trained and experienced in the handling and use of explosive material.” The Secretary proposes a penalty of $1,300.00 for this order of withdrawal.

             The inspector testified that the crusher operator, who was not trained or experienced in the use of explosives, was shooting material out of the hopper without a trained miner being present. (Tr. 204, 208). Inspector Crelly testified that when he went into the crusher shack he saw a stick of high explosive (Boostrite) sitting in the shack. When he asked why it was there, the crusher operator told him that he shot oversized rock in the hopper the previous Monday and, because he did not use all of the explosive material he had removed from the magazine, he put it in the crusher shack. (Tr. 204-05, 207; Ex. G-74c). It was in a tray next to what the inspector called “shotgun primers.” (Tr. 206). Shotgun primers are initiation devices used to set off a high explosive. Id. Thus, the inspector testified that he observed a high explosive stored next to detonators in the crusher shack. (Tr. 207). The crusher operator had been smoking in the crusher shack. (Tr. 209-10).

             Inspector Crelly determined that the violation was S&S because if the cited practice continued it was reasonably likely that someone would be seriously injured or killed. (Tr. 212-13). The inspector saw the crusher operator smoking in the crusher shack. Inspector Crelly determined that the violation was caused by the operator’s unwarrantable failure to comply with the standard because the violation was obvious and it appeared to be a standard practice at the mine. (Tr. 214-15). The inspector admitted that the crusher operator had been told by management not to smoke in or around the crusher shack. (Tr. 219).

             Mr. Clift testified that the crusher operator was Travis Tomlinson and Tomlinson had been trained to handle and use explosives. (Tr. 275). He testified that other Nelson Quarries employees had shown Tomlinson how to shoot out crushers at other plants owned by the company and that Tomlinson had helped other more experienced miners perform that task before he did so on his own. He further testified that an untrained employee can seriously damage the crusher if he improperly uses explosives. (Tr. 276). The order was terminated after Mr. Andres instructed employees that he was the only experienced and trained person who was authorized to use explosives, and he took possession of the keys to the magazine. (Tr. 288; Ex. G-15).

             Gene Andres denied that he ever told Inspector Crelly that the crusher operator was not qualified to handle and use explosives. (Tr. 296-97). He merely told Crelly that he had not personally trained Tomlinson. An untrained person could seriously damage the equipment if he shoot explosives inside the crusher. (Tr. 298). He testified that he previously observed Tomlinson shoot a rock in the crusher but he could not remember when that was. (Tr. 300, 317). He also stated that he was at the plant when Tomlinson shot the rock in the crusher in November 2005 and that he observed him doing so. Andres testified that he did not notice that Tomlinson stored the second stick of Boostrite in the crusher shack or that shotshell primers were being stored there as well. (Tr. 300-01). Andres also said that he did not know where Tomlinson got the cap for the blast that day.

             In his interview with an MSHA inspector in February 2006, Andres said “I normally go with the crusher operator to shoot, but I didn’t know that [Tomlinson] was shooting that day and he forgot to take the explosives back and left a stick of Boostrite in the crusher booth the day before the MSHA inspection.” (Tr. 305-06; Ex. G-137g, p. 5). He further stated that when he saw the Boostrite during the MSHA inspection, “I liked to have had a heart attack when I saw the explosives in there . . . I didn’t know that he was shooting that Monday.” Id.

             In its brief, Nelson Quarries argues that Inspector Crelly did not listen to the answer of Andres when he asked if Tomlinson was trained in the use of explosives. Andres merely stated that he had not trained him. The record establishes that Tomlinson came to Plant 4 already trained by company employees at another plant. The record also shows that an untrained miner could injure himself and seriously damage or destroy a very expensive primary crusher. Nelson Quarries argues that it would never take such a risk. Indeed, when Crelly asked Tomlinson if he knew that he should not be smoking around explosive materials, he answered in the affirmative by stating he had been taught that smoking was prohibited during his training. (Ex. G-12 p. 19). Mr. Clift testified that Tomlinson had been trained by two company blasters and that the company does not allow untrained miners to use explosives. Clift also testified that the method of abatement was actually chosen by the inspector and the company agreed to the abatement to finish the inspection. To abate, the company agreed that Andres will be the experienced and trained miner who can handle explosives. Nelson Quarries and Mr. Andres felt intimidated by MSHA because the agency had multiple inspectors at the plant and at the other plants during the same period of time. They felt that they were under the gun and ask that the order be vacated.

             In her brief, the Secretary argues that the record does not support the company’s arguments. The record demonstrates that Andres “was neither intimidated nor confused when he told Inspector Crelly that Travis Tomlinson had not received training in the handling and use of explosive materials.” (S. Br. 7). The Secretary argues that Andres testimony should not be credited because he said contradictory things during the investigation and at the hearing. At the hearing, Andres testified that he watched Tomlinson shoot out the hopper for the crusher. (Tr. 300-01). Mr. Andres previously told MSHA’s special investigator that he was running a loader that day and was not aware that Tomlinson was shooting the crusher. (Tr. 304-06; Ex. G-137g, p. 5). The Secretary states that the inspector recorded his conversation with Andres in his field notes and that Andres signed these notes. (Tr. 195-96, 313; Ex. G-12 p. 11). In addition, Tomlinson told Inspector Crelly that he was “uncomfortable” handling explosives. (Tr. 207-08). Finally, the Secretary argues that the fact that Tomlinson stored boostrite in the crusher shack next to the shotgun primers and that he smoked in the area demonstrates that he had not been properly trained in the handling of explosives.

             The resolution of this order depends almost entirely on credibility determinations. I credit the testimony of Inspector Crelly and the exhibits presented by the Secretary. The company’s evidence was both conflicting and unpersuasive. First, although I have no doubt that Nelson Quarries did not want inexperienced persons handling and shooting explosives, the preponderance of the evidence establishes that Tomlinson was neither sufficiently trained nor experienced to be shooting the hopper of the crusher without direct supervision. I find that Mr. Andres was operating a loader at the time Tomlinson shot the hopper for the crusher. Mr. Clift testified that he talked to Russ and James Caudill and Chris Eagle and they told him that they trained Tomlinson on the use of explosives at another plant. (Tr. 275). Specifically, he stated that Tomlinson “helped Chris Eagle shoot out a crusher, I believe, its been a long time ago when we worked at Gas [Kansas], I believe I saw him help Chris Eagle at one point, but that was a long time ago, so [testimony interrupted]” Id. This testimony is so weak that I cannot give it much weight. No credible evidence was presented by the company to show that Tomlinson had actually been trained or was sufficiently experienced. Consequently, I find that the Secretary established a violation. Mr. Tomlinson, who was not sufficiently trained or experienced, shot a rock in the hopper when he was not in the immediate presence of someone trained and experienced in the handling and use of explosive material.

             It is clear that the violation was S&S because it was reasonably likely that the hazard contributed to by the violation would result in death or serious injury assuming continued mining operations. Inexperienced and untrained miners pose a hazard to themselves when handling explosives.

             Inspector Crelly determined that this violation was obvious by talking to Messrs. Andres and Tomlinson. It appeared to Crelly that the company did not have in place appropriate procedures for the handling and use of explosives. Tomlinson did not return the unused Boostrite to the magazine but stored it in the crusher shack. Mr. Andres left blasting caps in his truck so that anyone could get them. There was little or no security for explosives at the plant, shock tube was stored in a parts trailer, and Tomlinson smoked around explosives. The inspector testified that “the way they handled the explosives or stored the explosives showed me that they did not have respect for it.” (Tr. 215). I find that a preponderance of the evidence supports the Secretary’s determination that the violation was the result of the company’s unwarrantable failure to comply with the safety standard. The violation was obvious and it appears that there was little to no supervision of the use and storage of explosives at the site. Tomlinson apparently was uncomfortable handling and using explosives yet he was permitted to shoot the crusher. No effort had been made to properly train Tomlinson. Nothing in the record suggests that this was an isolated or unusual event. The operator’s attitude toward the storage and use of explosive material was rather casual given the serious hazard that was posed. I find that Nelson Quarries was rather indifferent toward the hazard and that their conduct exhibited a serious lack of reasonable care. A penalty of $1,500.00 is appropriate for this violation.

             C. CENT 2006-178-M, Plant 1.

             1. On November 16, 2005, Inspector Chrystal Dye issued Citation No. 6291644 alleging a violation of section 56.20003, as modified. (Ex. G-3). The citation alleges that there was about four inches of material on the walkway of the Cedar Rapid screen #620 and that material covered an area that was about four by six feet. Inspector Dye determined that an injury was unlikely but that any injury could reasonably be expected to be permanently disabling. She determined that the violation was not S&S and that the negligence was moderate. The safety standard provides, in part, that “[w]orkplaces, passageways, storerooms, and service rooms shall be kept clean and orderly.” The Secretary proposes a penalty of $614.00 for this citation.

             Inspector Dye testified that the cited area is both a passageway and a potential workplace when maintenance is being performed. (Tr. 46; Ex. G-3). The material was up to the height of the four inch toe boards. (Tr. 47). The walkway is rarely used, but there was a fixed ladder used for access to the area. (Tr. 48, 83). It was most likely used for maintenance and repair. The area was 10 to 12 feet above the ground and the accumulated material created a tripping and stumbling hazard. There was a substantial railing along the walkway. (Tr. 83). Inspector Dye estimated that it would take at least one day of production for this amount of material to accumulate. (Tr. 50). Kenneth Nelson, the president of Nelson Quarries, testified that the only time anyone would be up on the walkway would be to change screens about once every two months when the screen is operating. (Tr. 97-99). Because material often falls off the screen, onto the walkway, miners clean the area when they need to access the walkway. Id.

             I find that the Secretary did not establish a violation. It is clear that the cited area was a workplace or a passageway. The key factor here is that miners travel to the cited walkway for the screen only when the screen is changed. I credit Mr. Nelson’s testimony in this regard. The screen is changed about once every two months assuming that the Cedar Rapids screen is being used on a continuous basis. The plant operates intermittently. Under the Secretary’s interpretation of the safety standard, miners would have to regularly travel to the walkway for the sole purpose of cleaning it even though miners would not be working or walking on the walkway for days or weeks. If it only takes a day or two for material to accumulate, miners would be required to clean the walkway repeatedly even though it was not being used. This repeated cleaning would needlessly expose miners to the very slipping and tripping hazards that the safety standard was designed to prevent. There has been no showing that miners have ever walked or worked on the cited walkway without first cleaning it off. This citation is vacated.

             2. On November 16, 2005, Inspector Dye issued Citation No. 6291646 alleging a violation of section 56.18012. (Ex. G-4). The citation alleges that there were no emergency phone numbers posted at the mine. Inspector Dye determined that an injury was unlikely and that any injury would not result in any lost work days. She determined that the violation was not S&S and that the negligence was moderate. The safety standard provides that “[e]mergency phone numbers shall be posted at appropriate telephones.” The Secretary proposes a penalty of $614.00 for this citation.

             MSHA requires that phone numbers for the fire department, hospitals, poison control, and the like be posted at every mine. (Tr. 53-54). These numbers are typically posted at the scale house at small surface mines. Inspector Dye stated that this requirement is not obviated by the use of cell phones. Programming a cell phone with these numbers is not sufficient. (Tr. 55). A person who may need to make an emergency call, such as truck drivers for customers, may not have access to the programmed cell phone. No telephone had been installed at the scale house. (Tr. 85, 93). Foremen keep cell phones in their pickup trucks. (Tr. 117). The county has “911 Service” so a miner or a truck driver can call 911 to obtain emergency assistance. (Tr. 94). Sometimes customers are at the site loading material into trucks when employees of Nelson Quarries are not present. (Tr. 117-18).

             I find that the Secretary established a violation. The gravity is obviated by the prevalence of cell phones and the fact that the county has 911 service. A penalty of $40.00 is appropriate.

             3. On November 16, 2005, Inspector Dye issued Citation No. 6291647 alleging a violation of section 109(a) of the Mine Act. (Ex. G-5). The citation alleges that there was no bulletin board at the mine for posting documents required by law to be posted. Inspector Dye determined that an injury was unlikely and that any injury would not result in any lost work days. She determined that the violation was not S&S and that the negligence was moderate. The Mine Act provides that there “shall be a bulletin board at . . . a conspicuous place near an entrance of [the] mine” for use is posting “orders, citations, notices and decisions required by law or regulation to be posted. . . .” The Secretary proposes a penalty of $203.00 for this citation. Dye testified that most small mines do not have an office so they place a bulletin board at the scale house. (Tr. 56). This plant did not have a bulletin board anywhere on the site. Kenneth Nelson testified that the company keeps employees informed of their rights. (Tr. 97).

             I find that the Secretary established a violation. The requirement for a bulletin board is set forth in the Mine Act itself. A penalty of $60.00 is appropriate.

             4. On November 16, 2005, Inspector Dye issued Citation No. 6291645 alleging a violation of section 56.14107(a). (Ex. G-6). The citation alleges that the head pulley for belt 712 was not guarded to prevent persons from becoming entangled in moving machine parts. The citation states that the head pulley was 4½ feet above the ground. Inspector Dye determined that an injury was unlikely but that any injury would likely be fatal. She determined that the violation was not S&S and that the negligence was moderate. The safety standard provides that “[m]oving machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, head, and takeup pulleys, flywheels, coupling, shafts fan blades; and similar moving parts that can cause injury.” The Secretary proposes a penalty of $614.00 for this citation.

             Inspector Dye testified that the violation was obvious. (Tr. 73-74). She said that someone could come into contact with the head pulley while cleaning under it or while walking in the area. Employees shovel out accumulations because they do not have Bobcat or other scoop at the quarry. (Tr. 76). She stated that it would be easy for a miner’s clothing to become entangled in the pulley.

             Kenneth L. Nelson testified that he had only been issued three citations alleging inadequate guards on moving machine parts at all the company’s plants since 2003. (Tr. 94). The company has up to 100 guards at each plant. Nelson testified that the MSHA inspectors were “a lot more aggressive” during the inspections at issue in these cases. (Tr. 95). He believed that MSHA was “judging us differently on our guards than they ever have in the past.” Id. Nelson objected to the fact that MSHA changed its guarding requirements but then inspected all of its plants at the same time so that it could not meet these new requirements before citations were issued. He said that he believes that MSHA previously inspected the head pulley in the same condition without issuing a citation. (Tr. 100-01). These inspections occurred when the unit was at a different location. (Tr. 107). The sides of the pulley, which protect the pinch points, have always been guarded. Id.

             In addition, Nelson testified that there is another conveyor right in front of the cited conveyor that is directly in front of the cited head pulley and that this conveyor restricts access to the cited area. (Tr. 100; Ex. R-178). Although he did not measure the height of the head pulley, he estimates that it was over six feet above the ground. (Tr. 111).

             The Commission addressed the issue of reasonable notice with respect to the Secretary’s guarding standard in Alan Lee Good d/b/a Good Construction, 23 FMSHRC 995 (Sept. 2001). The Secretary has been enforcing this standard for about 23 years. In Good Construction, the mine operator contended that it did not have adequate notice of the requirements of 30 C.F.R. § 56.14107(a) because the language of the safety standard “does not provide reasonably clear guidance regarding how any particular moving part should be guarded, allows inconsistent interpretation by inspectors, and is unconstitutionally vague based on the fact that other MSHA inspectors never cited these same conditions over the past 18 years.” Good Construction at 1002. The moving machine parts were guarded in that case, but the MSHA inspector determined that the guarding was insufficient.

             The Commission’s decision was split on the issue of how that particular case should be handled. Nevertheless, when put in the context of previous Commission decisions, I believe that the holding is essentially the same in both opinions with respect to how this issue should be analyzed in future cases, as summarized in the opinion of Commissioners Jordan and Beatty.

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

23 FMSHRC 1005 (citations and footnote omitted).  

             The language of the standard states that moving machine parts that can cause injury, including drive, head, tail, and take-up pulleys, must be guarded. In the preamble to the final rule, the Secretary emphasized the broad construction of this safety standard. The preamble states:

[T]he final standard requires the installation of guards to protect persons from coming into contact with hazardous moving machine parts. The standard clarifies that the objective is to prevent contact with these machine parts. The guard must enclose the moving parts to the extent necessary to achieve this objective.

53 Fed. Reg. 32496, 32509 (Aug. 25, 1988) (emphasis added). The preamble further provides:

Under the final rule, the standard applies where the moving machine parts can be contacted and cause injury. Some commenters believed that guards should provide protection against inadvertent, careless, or accidental contact but not against deliberate or purposeful actions. They consider guards which totally enclose moving parts as counter-productive to other safety considerations such as proper work procedures, training, and general attention to hazardous conditions

Id. In rejecting these comments, the Secretary stated that most injuries caused by moving machine parts occur when persons are “performing deliberate or purposeful work-related actions with the machinery” and that the installation of a guard would have prevented these injuries. Id. The Secretary stated that “[g]uards provide a physical barrier, which offers the most effective protection from hazards associated with moving machine parts.” Id. Thus, the Secretary provided notice to the regulated community that she would interpret this safety standard very broadly to protect persons from coming into contact with moving machine parts and that the standard covers deliberate actions by employees.

             The Secretary’s Program Policy Manual (“PPM”) provides additional information to the public about the Secretary’s interpretation of safety standards. The PPM provides, in part, as follows:

All moving parts identified under this standard are to be guarded with adequately constructed, installed and maintained guards to provide the required protection. The use of chains to rail off walkways and travelways near moving machine parts, with or without the posting of warning signs in lieu of guards, is not in compliance with this standard.

(Ex. G-6d; IV MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 56/57.14107 (2000) (“PPM”)). Although the PPM is not binding on the Secretary, it does provide the mining community with notice of MSHA’s interpretation of her safety standards.

             Finally, the Secretary published MSHA’s Guide to Equipment Guarding. (Ex. G-6c). Although this booklet is again not binding on the Secretary, it includes text and illustrative drawings to show what the agency considers to be adequate guarding under the safety standard.

             At the hearing, I ruled that the Nelson Quarries had adequate notice of the requirements of the standard because the violation was patently obvious. (Tr. 121, 790-92). Quite simply, a reasonably prudent person would recognize that the existing guarding did not protect persons from coming into contact with hazardous moving machine parts. A miner could approach the head pulley from the side and come in contact with moving parts that could injure a miner. Although Nelson Quarries correctly stated that material on this belt dumps onto another belt, there were accumulations in the area under the belt which would require shoveling from time to time. (Ex. R-178b). Access was limited from the front but not from the side. I credit the testimony of Inspector Dye as to the accessibility of moving machine parts.

             This plant is moved from location to location as the need arises. Although the plant is set up in the same basic configuration at each location, access to moving machine parts may be more limited at some locations and other MSHA inspectors may have overlooked the condition as a result. The interpretive material issued by MSHA, including its guide to equipment guarding, makes clear that the guards present at the time of the inspection were inadequate to protect miners. Nelson Quarries did not sustain its burden of showing that the lack of previous citations led it to believe that additional guarding was not required. I find that the Secretary provided adequate notice to the mining community that the guard provided at the head pulley was inadequate to meet the requirements of the standard.

             For these reasons, I affirm this citation as a non-S&S citation with moderate negligence. A penalty of $100.00 is appropriate.

             5. On November 21, 2005, Inspector Thomas Barrington, an electrical inspector from Salt Lake City, issued Citation No. 6317464 alleging a violation of section 56.12025. (Ex. G-8). The citation alleges that the grounding system on the 527 conveyor was not being maintained in that a ground resistance test measured 200 ohms to ground. Inspector Barrington determined that an injury was reasonably likely and that any injury would likely be fatal. He determined that the violation was S&S and that the negligence was moderate. The safety standard provides that “[a]ll metal enclosing or encasing electrical circuits shall be grounded . . . .” The Secretary proposes a penalty of $963.00 for this citation.

             Inspector Barrington testified that the grounding system on the conveyor was not effective because the resistance in the grounding circuit was too high to effectively open the circuit protective device. (Tr. 143). He used an analog volt/ohm meter to test the grounding system. There was a grounding wire present. When he tested the system, he stayed in the motor control center (MCC) with the meter and a lead was taken by a Nelson Quarries employee or another inspector to each motor at the plant. (Tr. 165-6). He tested the system several times to make sure that his readings were accurate. (Tr. 157). A grounding system must provide a continuous grounding medium back to the source and it must have low impedance. (Tr. 144). The phase-to-phase voltage on the conveyor was 480 volts while phase-to-ground was 277 volts. Any miner working in around the plant was exposed to the hazard and he could receive burns or could be electrocuted. (Tr. 155). The inspector determined that an injury is reasonably likely because the components at the plant are made of metal and the resistance is high. (Tr. 155, 158).

             Kenneth Nelson testified that it has performed the resistance and continuity test annually and whenever equipment is moved as required by MSHA. (Tr. 173). If the resistance is higher than expected, it can usually be corrected by cleaning corrosion from around the area where the grounding wire is attached to the equipment.

             I find that the Secretary established an S&S violation of the safety standard. I credit the inspector’s testimony that he correctly tested the grounding system. Although corrosion may have created the problem, the hazard was still present and serious. It was reasonably likely that someone would be injured or electrocuted if the condition were not corrected. A penalty of $500.00 is appropriate taking into consideration the penalty criteria.

             6. On November 21, 2005, Inspector Barrington issued Citation No. 6317465 alleging a violation of section 56.12025. (Ex. G-9). The citation alleges that the grounding system on the 614 conveyor was not being maintained in that a ground resistance test measured 2.5 ohms to ground. Inspector Barrington determined that an injury was reasonably likely and that any injury would likely be fatal. He determined that the violation was S&S and that the negligence was moderate. The Secretary proposes a penalty of $614.00 for this citation. 

             As with the previous citation, Inspector Barrington testified that the grounding system on the conveyor was not effective because the resistance in the grounding circuit was too high to effectively open the circuit protective device. (Tr. 159-60). He used an analog volt/ohm meter to test the grounding system. There was a grounding wire present. He tested the system several times to make sure that his readings were accurate. Because of the level of impedance on the grounding wire, the circuit breaker would not immediately trip. (Tr. 161). It would take several seconds before the breaker would trip. (Tr. 169). The metal components of the conveyor would become energized in the event of a fault and expose miners to an electrocution hazard. He testified that such an event was reasonably likely.

             My findings with respect to this citation are the same as with Citation No. 6317464. A penalty of $500.00 is appropriate.

             7. Prior to the hearing, the Secretary agreed to vacate Citation Nos. 6291635, 6291637, 6291642, and 6291648.

             D. CENT 2006-200-M, Plant 5. 

             1. On October 26, 2005, Inspector Dye issued Citation No. 6291576 alleging a violation of section 56.14107(a). (Ex. G-16). The citation alleges that there was inadequate guarding on the smooth head pulley on the #226 conveyor. The top of the belt was about 6 feet above the ground. The bottom of the pulley was adequately guarded, but the top was not. Inspector Dye determined that an injury was unlikely but that any injury would result in a disabling injury. She determined that the violation was not S&S and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation.

             Inspector Dye testified that although an unguarded smooth pulley is not as dangerous as an unguarded self-cleaning pulley, it still presents a hazard. (Tr. 324). There was a gap in the guarding for this pulley “where someone could reach in and make contact with the smooth head pulley.” (Tr. 325, 430). She measured the distance to the open area as six feet off the ground. (Tr. 327, 432). She believes that it was possible for someone cleaning up accumulations to get the shovel handle or their shirt caught in the pulley if it were operating. Plant 5 had been in operation since December 2004. There were between 40 and 60 machine guards at this plant. (Tr. 323). The plant is cleaned up after it is shut down. (Tr. 432).

             Michael Peres, a superintendent and safety director for Nelson Quarries, testified that the opening cited by Inspector Dye was about three inches wide and that the pulley was recessed about six inches. (Tr. 475-76). The pinch point for the pulley was further away from the opening. Mr. Peres has worked for Nelson Quarries for about 15 years and he has held about every position at the quarries. (Tr. 498).

             It is significant that the cited opening was about six feet above the ground. Nevertheless, the opening was large enough to pose a hazard. The pulley was recessed about six inches. Accumulations at the plant are generally cleaned up after it is shut down. I find that the Secretary established a violation but that the negligence was low. A penalty of $50.00 is appropriate. (Tr. 794).

             2. On October 26, 2005, Inspector Dye issued Citation No. 6291584 alleging a violation of section 56.14107(a). (Ex. G-17). The citation alleges that the tail pulley on the Thor radial stacker was not adequately guarded. The citation states that the tail pulley was guarded on the sides but not on the bottom. The pulley was a little under six feet above the ground. Grease fittings were within six inches of the pulley. Inspector Dye determined that an injury was unlikely but that any injury would result in a disabling injury. She determined that the violation was not S&S and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation.

             Inspector Dye testified that the smooth pulley was not guarded on the bottom. (Tr. 331). An employee could get under the pulley during cleanup operations or while greasing and his clothing could become entangled in the pulley. (Tr. 334). She does not know whether employees grease fittings around the pulley while the plant is operating. (Tr. 435-36).

             Mr. Peres testified that a miner would have to climb up on a concrete structure to be under the cited pulley. (Tr. 478; Ex. R-200k). Grease hoses were hanging down. The pulley was recessed within the structure of the radial stacker. (Tr. 480; Ex. R-200k).

             Although the possibility of an accident is low, there were exposed moving machine parts that posed a hazard to miners. I find that the Secretary established a violation but that the operator’s negligence was low. A penalty of $50.00 is appropriate. (Tr. 795).

             3. On October 26, 2005, Inspector Dye issued Citation No. 6291592 alleging a violation of section 56.14107(a). (Ex. G-18). The citation alleges that there was no guard on the alternator belt and pulley on the Dresser Haul truck No. 1008. The cited area is only accessed for maintenance or to check fluid levels. Inspector Dye determined that an injury was unlikely but that any injury would result in a disabling injury. She determined that the violation was not S&S and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation.

             Inspector Dye testified that the fan blades were guarded but that the belts and pulleys were not guarded. Miners may come in contact with the moving machine parts while checking fluid levels and performing maintenance. (Tr. 339-40). She stated that some fluids need to be checked while the engine is running. Often trucks are running when the operator conducts his pre-shift examination. At least two other citations had been previously issued to Nelson Quarries for failure to guard moving machine parts for a motor on a haul truck. (Tr. 342-43; Ex. G-18d). MSHA’s guarding manual covers the guarding of belts and pulleys in engine compartments on mobile equipment. (Tr. 345; Ex. G-6c, p. 25). Dye testified that hands and fingers could be severely injured as a result of this violation. (Tr. 347-48). She does not know whether employees check fluid levels while the truck is running, but there would be nothing to stop anyone from doing so. (Tr. 437). The belts and pulleys are recessed within the frame. The guards installed at the factory for the radiator fan were in place.

             Mr. Peres testified that fluid levels are checked with the engine off. (Tr. 481). Checking fluid levels while the engine is running will give inaccurate readings. In addition, oil cannot be added to the engine while it is running. The cited pulleys and belts were recessed in the engine compartment. (Tr. 482).

             Although the cited belt and pulley were recessed, they were required to be guarded under the safety standard. The chance of injury is not great, but the guarding standard is designed to prevent accidental injury. As stated above, the standard takes into account ordinary human carelessness. The violation was not serious. The citation is affirmed and a penalty of $60.00 is appropriate. (Tr. 797).

             4. On October 26, 2005, Inspector Dye issued Citation No. 6291593 alleging a violation of section 56.14107(a). (Ex. G-19). The citation alleges that there were no guards on the alternator or the fuel injector drive pulley on the Euclid haul truck No. 1017. Inspector Dye determined that an injury was unlikely but that any injury would result in a disabling injury. She determined that the violation was not S&S and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation. Inspector Dye testified that the conditions cited in this citation were quite similar to those in the previous citation. (Tr. 348-52). Mr. Peres testified that fluids are neither checked nor added while the engine is running. (Tr. 483-84).

             The cited pulleys were required to be guarded under the standard. As in the previous citation, the chance of an injury is not great but the standard was put into place to prevent accidental injuries. The violation was not serious. A penalty of $60.00 is appropriate. (Tr. 797).

             5. On October 26, 2005, Inspector Dye issued Citation No. 6291569 alleging a violation of section 56.14112(b). (Ex. G-20). The citation alleges that the guard for the tail pulley on the impactor belt was not secured on one side. Inspector Dye determined that an injury was unlikely but that any injury would result in a disabling injury. She determined that the violation was not S&S and that the negligence was moderate. The safety standard provides “guards shall be securely in place while machinery is being operated, except when testing or making adjustments which cannot be performed without removal of the guard.” The Secretary proposes a penalty of $60.00 for this citation.

             The inspector testified that vibration can cause a guard to become loose and fall from place. (Tr. 353). Because the guard was loose, there was an opening and, if someone were to trip and fall in the area, he could become entangled in the moving machine parts. (Tr. 354-59) No miners were testing or making adjustments to the machinery. (Tr. 358-59). The area of concern to the inspector was the area around the wire mesh. (Tr. 444).

             Peres testified that the pulley was guarded by a piece of solid metal that surrounded it. (Tr. 485; Ex. G-20c). That guard was provided by the manufacturer. The guard cited by the inspector was added by Nelson Quarries as an enhancement. Id. The mesh guard was added by Nelson Quarries because “we didn’t feel like the factory guard was adequate.” (Tr. 516). The part cited by MSHA, however, did not need additional guarding. The only reason the mesh was there was because the person who installed it neglected to cut it off. (Tr. 518).

             As I stated at the hearing, I find that the Secretary did not establish a violation. (Tr. 797-98). The solid metal guard covered the moving machine parts. I credit the testimony of Peres on this citation that the expanded metal guard was attached to protect other areas and it simply overlapped the solid metal guard. The cited guard was not loose. Consequently, I vacate this citation.

             6. On October 26, 2005, Inspector Dye issued Citation No. 6291578 alleging a violation of section 56.14112(b). (Ex. G-21). The citation alleges that the guard on the self-cleaning tail pulley for conveyor No. 534 was hanging down in the area of the rollers, that the top and end guards were damaged, that the drive belt guard was missing on the top and back, and that the lower guard was not securely in place. Inspector Dye determined that an injury was unlikely but that any injury would result in a disabling injury. She determined that the violation was not S&S and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation.

             The inspector testified that there were a number of conditions on the conveyor that concerned her. The guard on the side had come loose at the top and had fallen down. (Tr. 361; Ex. G-21c). This exposed several rollers under the belt. In addition, the openings in the top guard were too large to be effective. (Tr. 363, Ex. G-21d). The openings were about two to three inches wide. (Tr. 446). The drive guard belt was also missing. (Ex. G-21e). This area is not very high off the ground. (Tr. 364). She testified that no testing or repairs were being conducted at the time of the inspection. (Tr. 366). She was concerned that miners could get their fingers or hands entangled in the moving machine parts. She admitted that the tail pulley itself was adequately guarded. (Tr. 444). She also stated that the “troughing rollers” shown on Ex. G-21c are exempted under the guarding standard. (Tr. 446).

             Peres believes that the guard that was loose was still protecting the tail pulley. (Tr. 487; Ex. G-21c). The only exposed moving machine parts are the troughing rollers, which are not required to be guarded. He also testified that the pulley was about ten inches from the guard at the top. As a consequence, he does not believe that anyone could get caught in the pulley. (Tr. 488; Ex. G-21d). Finally, the drive belt was normally about six to seven feet above the ground. (Tr. 489). The inspector was able to reach the area because she was standing on top of accumulations.

             For the reasons set forth at the hearing, I affirm this citation. (Tr. 798-800). I find that the conditions cited by Inspector Dye violated the safety standard. The area was accessible. Although she had to stand on accumulations to see the drive belt, miners would be able to do so too. A penalty of $60.00 is appropriate.

             7. On October 26, 2005, Inspector Dye issued Citation No. 6291579 alleging a violation of section 56.14112(b). (Ex. G-22). The citation alleges that the guarding material on the tail pulley for conveyor No. 516 was not secured at the bottom and that this condition could allow miners to come into contact with moving machine parts on the belt. The inspector determined that an injury was unlikely but that any injury would result in a disabling injury. She determined that the violation was not S&S and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation.

             The inspector testified that there was a gap in the belting material that was being used as a guard. (Tr. 367; Ex. G-22c). The gap was present because the belting was not securely in place. (Tr. 368). As a consequence, Inspector Dye believed that someone could come into contact with the moving machine parts. (Tr. 370). The inspector could not remember how far back into the frame the tail pulley was recessed. (Tr. 450). Peres testified that the pulley was recessed inside the frame of the conveyor about six to eight inches. (Tr. 490).

             As I stated at the hearing, the Secretary established a violation because the gap presented a hazard to employees as illustrated in the photograph. (Tr. 800; Ex. G-22c). Because the pulley was recessed, the chance of an injury was not very great. A penalty of $60.00 is appropriate.

             8. On October 26, 2005, Inspector Dye issued Citation No. 6291572 alleging a violation of section 56.12004. (Ex. G-23). The citation alleges that the 480 volt overhead power cable for the 547 belt had four separate areas where damage had been done to the outer jacket, exposing the inner wires to mechanical damage. The cable was about 12 feet in the air and the inspector believes the copper wire was showing in one location. The inspector determined that an injury was unlikely but that any injury could result in a fatal accident. She determined that the violation was not S&S and that the negligence was moderate. The safety standard provides, in part, that “electrical conductors exposed to mechanical damage shall be protected.” The Secretary proposes a penalty of $60.00 for this citation.

             Inspector Dye testified that the outer jacket on the cable was damaged. (Tr. 386; Ex. G-23c & 23d). The plant was shut down so that cited conditions could be corrected as they were cited, but the plant had been running the previous day. (Tr. 389). She believes that copper wire was showing and she testified that employees of Nelson Quarries agreed with her. (Tr. 390, 454). The hazard created was that if a short developed as a result of this damage, anyone touching the metal frame of the conveyor could receive a fatal electric shock. (Tr. 391). Peres testified that he offered to take the cable down so that Inspector Dye could examine it more closely, but she said she could tell that bare wires were exposed. (Tr. 491). He stated that when he took the cable down to repair it, none of the copper wires were exposed.

             I reject the idea that the inspector could positively determine that copper wire was exposed in a small area of the suspended cable while she was standing on the ground. Nevertheless, the standard requires that electrical conductors exposed to mechanical damage be protected. Because the outer jacket protecting the electrical conductors had been damaged, the cable was required to be repaired. There was a potential for a short in the circuit because the damaged outer jacket would allow rain and snow to enter the cable. A penalty of $60.00 is appropriate.

             9. On October 26, 2005, Inspector Dye issued Citation No. 6291573 alleging a violation of section 47.41(a). (Ex. G-24). The citation alleges that the large diesel storage tank was not labeled for its contents so that employees would know what the tank contained. The inspector determined that an injury was unlikely but that any injury would result in a disabling injury. She determined that the violation was not S&S and that the negligence was moderate. The safety standard provides that a mine “operator must ensure that each container of a hazardous chemical has a label . . . with the appropriate information.” The Secretary proposes a penalty of $60.00 for this citation.

             Inspector Dye testified that a container is any “bag, barrel, bottle . . . storage tank, or the like.” (Tr. 392). She said that fuel tanks are included in this definition unless the tank is on mobile equipment. The cited tank was next to the parts trailer and it held about 7,500 to 8,000 gallons. (Tr. 394). The tank supplied fuel to the plant. Diesel fuel is a hazardous chemical because it can have adversely affect a person’s health. The MSDS for diesel fuel states that it is hazardous. (Tr. 397-98 ; Ex. G-24c). She believes that the health hazards could lead to “long-term damage.” Id.

             The Secretary established a non-S&S violation. This standard is important so that anyone on the property will know what is stored there without have to think about it. This provision is especially important for emergency responders who have never been to the plant. (Tr. 801–02). The cited standard has only been applied to small quarries relatively recently so I have reduced the negligence. I find that A penalty of $40.00 is appropriate.

             10. On October 26, 2005, Inspector Dye issued Citation No. 6291580 alleging a violation of section 56.4501. (Ex. G-25). The citation alleges that there was no valve on the bottom of the 500 gallon diesel fuel tank on the Spokane crusher to stop the flow of fuel at the source. The inspector determined that an injury was unlikely but that it could lead to a fatal accident. She determined that the violation was not S&S and that the negligence was moderate. The safety standard provides that “fuel lines shall be equipped with valves capable of stopping the flow of fuel at the source. . . .” The Secretary proposes a penalty of $60.00 for this citation.

             Inspector Dye testified that Nelson Quarries should have installed a valve to control the flow of fuel. (Tr. 399). There was no valve on the cited fuel line. The purpose of the standard is to allow the operator to shut off the tank if a leak develops. If the fuel keeps flowing, a fire hazard is presented which can result in a fatal accident. (Tr. 401-02). There was no berm around the tank to contain any leaking diesel fuel.

             I find that the Secretary established a violation. It is clear that there was no valve present. A penalty of $60.00 is appropriate.

             11. On October 26, 2005, Inspector Dye issued Citation No. 6291587 alleging a violation of section 56.6101(a). (Ex. G-26). The citation alleges that the area to the north and east of the cap storage magazine had dry grass and brush within nine feet of the magazine. The inspector determined that an injury was unlikely but that the violation could contribute to a fatal accident. She determined that the violation was not S&S and that the negligence was moderate. The safety standard provides that “areas surrounding storage facilities for explosive materials shall be clear of rubbish, brush, [and] dry grass . . . for 25 feet in all directions . . . .” The Secretary proposes a penalty of $60.00 for this citation.

             The inspector testified that the cap magazine qualifies as “storage facility for explosive materials.” (Tr. 403). The brush and grass was within nine feet of the magazine. (Tr. 404-05; Ex. G-26c, 26d & 26e). If a fire were to start in the brush or grass, the flames could get into the magazine through the air vents and cause an explosion. (Tr. 406). Peres testified that most of the growth cited by Inspector Dye was green, but he does not deny that dry grass was present. (Tr. 493, 522; Ex. G-26).

             This citation is affirmed as written. Although some of the brush was green, it is beyond dispute that brush and dry grass was present within 25 feet of the magazine. A penalty of $60.00 is appropriate.

             12. On October 26, 2005, Inspector Dye issued Citation No. 6291588 alleging a violation of section 56.4101. (Ex. G-27). The citation alleges that the storage area for explosive materials did not have a sign warning against smoking or open flames. There was a sign identifying it as an explosive storage area. The inspector determined that an injury was unlikely but that any injury could be fatal. She determined that the violation was not S&S and that the negligence was moderate. The safety standard provides that “readily visible signs prohibiting smoking and open flames shall be posted where a fire or explosion hazard exists.” The Secretary proposes a penalty of $60.00 for this citation.

             The inspector testified that an explosion hazard existed around the storage area. (Tr. 407). There were two magazines, one for explosives and the other for ANFO (Ammonium Nitrate/Fuel Oil). She was concerned about a fire starting and entering the magazines. (Tr. 408). Kenneth Nelson testified that there used to be no smoking/open flames signs on magazines but that the Kansas State Fire Marshall ordered the signs removed in 1994 to be replaced with a sign with black letters on a white background that said, “Explosives. Keep Off.” (Tr. 527). He stated that MSHA has inspected these magazines numerous times since then without issuing citations. He admitted that he may have been able to post both signs. (Tr. 528-29). Some of Nelson’s employees smoke while at work.

             The safety standard is clear on its face. Although the plant must comply with state regulations, it could also have included a no smoking sign. Because of the actions of the Fire Marshall and the fact that previous MSHA inspections had not identified the violation, I reduce the negligence to low. A penalty of $40.00 is appropriate.

             13. On October 26, 2005, Inspector Dye issued Citation No. 6291590 alleging a violation of section 56.14100(b). (Ex. G-28). The citation alleges that there were a number of defects affecting safety on Dresser haul truck No. 1008. The tether strap for the operator’s door was missing. The inner door handle was missing. The glass on the door would not stay up exposing the operator to dust and noise. One of the tether straps for the operator’s seat was broken off. The tail lights did not work. The inspector determined that an injury was reasonably likely and that any injury could be fatal. She determined that the violation was S&S and that the negligence was moderate. The safety standard provides that “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.” The Secretary proposes a penalty of $135.00 for this citation.

             Inspector Dye testified that the door tether keeps the door from opening all the way. Because there is no handrail on the walkway, the door is tethered to help keep the operator from falling when getting out of the haul truck. (Tr. 410). The truck is used to haul material from the pit to the plant. The tether straps are a safety feature because they keep the door from opening beyond the point where it should be opened. (Tr. 411-12, 460). The tether strap for the seat helps keeps the seat inside the cab of the truck. The haul truck sometimes travels over rough terrain and the seat tether helps keep the seat in place. Inspector Dye believes that the inside door handle is an important safety feature because the operator may need to exit the truck quickly in an emergency. (Tr. 415-16). She was also concerned that the truck operator was being constantly exposed to noise and dust because the door window would not stay up. She admitted that MSHA’s standards do not require that windows be installed on trucks. (Tr. 462-64). She also said that tail lights are important so that any vehicles behind the haul truck would know where it is and where it is going. It is often windy and dusty in Kansas, which obscures the vision of equipment operators. (Tr. 413-14). Although Inspector Dye admitted that she did not know exactly how long these conditions existed on the truck, it was apparent that the conditions had existed for some time. (Tr. 418-19).

             Inspector Dye testified that, given the number of defective conditions on the truck, it was reasonably likely that the violation would contribute to a fatal injury. (Tr. 419). The truck operator could fall from the cab, he could be trapped inside the cab in the event of an accident, and he could be thrown around inside the cab in the event another vehicle collided with the truck. For this reason, she determined that the violation was S&S.

             Mr. Peres testified that the leather strap for the door on the haul truck is not a safety item. (Tr. 494). It is there to keep the door from slamming back against the side of the cab and the bed. The company had ordered a new handle for the door but it had not yet arrived. He did not explain this to the MSHA inspector. (Tr. 521).

             For the reasons set forth in Inspector Dye’s testimony, I affirm this citation. Taken together, the safety defects cited by the inspector created a significant hazard to the truck operator. I credit the inspector’s conclusion that these defects were not corrected in a timely manner. I also find that the violation was S&S because it was reasonably likely that the hazard contributed to by the violation would result in a serious injury. A penalty of $135.00 is appropriate.

             14. On October 26, 2005, Inspector Dye issued Citation No. 6291594 alleging a violation of section 56.14100(b). (Ex. G-29). The citation alleges that there was only one operable backup light and no operating tail lights on the Euclid haul truck No. 1017. The inspector determined that an injury was unlikely but that any injury could be permanently disabling. She determined that the violation was not S&S and that the negligence was moderate. The Secretary proposes a penalty of $60.00 for this citation.

             The inspector testified that tail lights are necessary in dusty environments and in the dark so that the truck can be seen from behind. (Tr. 423-24). In addition, when the back up light comes on, anyone behind the truck will know that the truck will be backing up. The truck backs up when it dumps at the crusher.

             I find that inadequate backup lights and tail lights are defects that affect safety. I also find that these defects were not corrected in a timely manner. A penalty of $60.00 is appropriate.

             15. On October 26, 2005, Inspector Dye issued Citation No. 6291591 alleging a violation of section 56.14132(a). (Ex. G-30). The citation alleges that the backup alarm on the Dresser haul truck No. 1008 was not working. The truck is regularly used to haul material from the pit to the crusher. The inspector determined that an injury was reasonably likely and that any injury could be fatal. She determined that the violation was S&S and that the negligence was moderate. The safety standard provides that “manually operated horns or other audible warning devices provided on self-propelled mobile equipment as a safety device shall be maintained in a functional condition.” The Secretary proposes a penalty of $135.00 for this citation.

             The inspector testified that a backup alarm is considered to be an audible warning device as that term is used in the safety standard. (Tr. 425). A backup alarm lets people in the area know that the vehicle will be backing up. Nelson Quarries did not offer any explanation for this condition. She believes that it was reasonably likely that someone would be fatally injured if the cited condition were not corrected. (Tr. 427-28).

             Peres testified that pedestrians are never on the ground while haul trucks are operating. (Tr. 495-96). In addition, over-the-road trucks are never in the area where the haul truck operates. Only one haul truck is operating at any given time.

             It is clear that a backup alarm is a safety device and that it was not maintained in a functional condition. Many people have been killed or injured at mines because of faulty backup alarms. Because there are no pedestrians at this mine while haul trucks are operating, I find that the violation was not S&S. A penalty of $60.00 is appropriate.

             16. Prior to the hearing, the Secretary agreed to vacate Citation No. 6291581 and Nelson Quarries agreed to withdraw it contest of Citation Nos. 6291574, 6291582, and 6291585.

             E. CENT 2006-201-M, Plant 5.