**FEDERAL MINE SAFETYAND HEALTH REVIEW COMMISSION**

OFFICE OFADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIAAVE., N.W., SUITE 520N

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9950/ FAX: 202-434-9949

 

February 21,2020
| SECRETARY  OF LABOR,

MINE  SAFETY AND HEALTH      

ADMINISTRATION  (MSHA),

                            Petitioner,

 

                        v.

 

RAIN  FOR RENT,

                            Respondent.                                                                               |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. WEST 2016-0730

A.C.  No. 04-01891-418057

 

 

 

Mine:  Eliot Plant |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------|

**DECISION ANDORDER**

 

Appearances:               AndrewR. Tardiff, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,Virginia, for the Petitioner

 

                                    BryonJ. Walker, Esq., Rose Law Firm, Little Rock, Arkansas, for the Respondent

 

Before:                        JudgeRae

 

**I.                  ****INTRODUCTION**

 

A.    Statement of theCase

 

This case is before me upon apetition for assessment of civil penalty filed by the Secretary of Labor (“theSecretary”) pursuant to Section 105(d) of the Federal Mine Safety and HealthAct of 1977, as amended, (“the Mine Act”), 30 U.S.C. § 815(d).[1]At issue are two citations issued to Respondent Western Oilfields SupplyCompany, doing business as Rain for Rent (“RFR”), under Section 104(a) of theMine Act.

 

A hearing was held in San Jose, Californiaon November 26, 2019, at which time testimony was taken and documentaryevidence was submitted. The parties filed post-hearing briefs on January 28,2020. I have reviewed all of the evidence at length and have cited to thetestimony, exhibits, and arguments I found critical to my analysis and rulingherein without including a detailed summary of the testimony given by eachwitness. After consideration of the evidence and observation of the witnessesand assessment of their credibility, I uphold the Section 104(a) citations aswritten for the reasons set forth below. 

 

B.     Stipulations

 

The parties havestipulated to the following facts: 

1.                 RFR provides temporary liquid handling solutions, including pumps,tanks, filtration, and spill containment to different industries, includingmine operators in the United States, Canada, and the United Kingdom.

 

2.                 On the date of the subject citations, RFR provided services as anindependent contractor to CEMEX Construction Materials Pacific LLC, whichoperates the Eliot Plant, Mine Safety and Health Administration (“MSHA”) I.D.No. 04-01891, in Alameda County, California. 

 

3.                 The case is subject to the jurisdiction of the Federal Mine Safety andHealth Review Commission (“FMSHRC”) and the assigned Administrative Law Judge(“ALJ”). 

 

4.                 The MSHA inspector was acting in his official capacity when issuing thecitations.

 

5.                 The citations were properly served by a duly authorized representativeon the date and place stated therein, and may be admitted into evidence for thepurpose of establishing their issuance, and not for the truthfulness orrelevance of any statements asserted therein.

 

6.                 RFR had no history of MSHA violations as of the date the citations wereissued.

 

7.                 The air compressor referenced in Citation No. 8785486 was a Quincymodel, with a 30 gallon air receiver tank, which was mounted on the Ford F-550company service truck (company # 2102).

 

8.                 During the subject inspection, RFR did not produce to the MSHAinspector, in response to the MSHA inspector’s request, any documents showingthat the air compressor referenced in Citation No. 8785486 had been inspectedby an inspector holding a valid National Board of Boiler and Pressure VesselInspectors (“National Board” or “Board”) Commission and in accordance with theapplicable chapters of the National Board Inspection Code (“NBIC”).

 

9.                 30 C.F.R. § 56.4402 does not require any specific labeling on a safetycan, other than that the labeling “indicate the contents.” 

 

10.             MSHA has neither published any guidance, nor promulgated any rules orregulations that defined “labeled” or “indicate,” as those terms are used in 30C.F.R. § 56.4402.

 

11.             There is no requirement under the Mine Act that labeling of a safety canbe in a specific location on the can, in a specific size or color, or be in aspecific language.

12.             The safety can which is the basis for Citation No. 8785487 was red incolor at the time of the subject inspection.

 

13.             RFR and its representatives have at all times cooperated with theinvestigation.

 

14.             RFR demonstrated good faith in addressing the conditions in the subjectcitations.

 

15.             The alleged violation in Citation No. 8785487 was terminatedimmediately.

 

16.             The alleged violation in Citation No. 8785486 has been terminated.

 

Jt.Ex. 1.[2]

** **

**II.               ****BACKGROUND**

 

Rain for Rent is a globalcontractor supplying liquid handling solutions to various industries. It wasproviding services on the Eliot Mine sand and gravel mine property on July 6,2016 when MSHA inspector Nicholas R. Basich[3]conducted a regular inspection. He issued the two citations herein. Tr. 15; Ex.S-3; Jt. Ex. 1. 

 

During the inspection of RFR’s FordF-550 truck, Inspector Basich observed a Quincy air compressor and 30-gallon airreceiver tank in the bed of the truck. Tr. 15-16; Ex. S-3, S-5 at 3; Jt. Ex. 1.Basich looked for evidence that the receiver tank was inspected, and noted thatit displayed no evidence that an inspector commissioned by the National Boardperformed an inspection. Tr. 15-16, 26. Basich then asked the driver of the RFRtruck to produce evidence that the tank had been inspected by a NationalBoard-commissioned inspector. Tr. 15, 17, 18, 43. After searching the truck, theRFR driver informed Basich that he did not have a permit or other proof of aconforming inspection. The RFR driver also telephoned the RFR office but wasstill unable to produce the documentation at which time Basich issued CitationNo. 8785486. Tr. 18. 

 

Next, Inspector Basich observedtwo Eagle Manufacturing Company 5-gallon safety cans in the cargo bed of thetruck. Tr. 29, 30. The safety cans were identical in design, with each beingred in color and having a yellow stripe running horizontally around the upperportion of the cans. Tr. 31, 60; Ex. S-7; Jt. Ex. 1. However, the exterior of onesafety can was labeled with the word “diesel,” whereas the other safety can didnot have any similar writing. Tr. 29, 59. After the RFR driver stated that the safetycan without writing held gasoline, Basich issued Citation No. 8785487. Tr. 29;Ex. S-6, S-7. Shortly thereafter, the RFR driver wrote the word “gasoline” onthe safety can and terminated the citation. Tr. 31, 32; Jt. Ex. 1. 

 

**III.            ****LEGALPRINCIPLES**

 

A.   Gravity

 

Gravity is the degree of seriousness ofthe violation. *Hubb Corp*., 22 FMSHRC 606, 609 (May 2000) (citing *ConsolidationCoal Co*., 18 FMSHRC 1541, 1549 (Sept. 1996)). The Commission has indicatedthat the focus of the gravity inquiry “is not necessarily on the reasonablelikelihood of serious injury, which is the focus of the [significant andsubstantial] inquiry, but rather on the effect of the hazard if it occurs.” *Consolidation*,18 FMSHRC at 1550; *see also Harlan Cumberland Coal Co*., 12 FMSHRC 134,140-41 (Jan. 1990) (ALJ) (explaining that some violations are seriousnotwithstanding the likelihood of injury, such as a violation demonstratingrecidivism, or a violation that could compound the effects of otherconditions).

 

B.    Negligence

** **

      Negligence is conduct that fallsbelow the high standard of care established by the Mine Act. 30 C.F.R. §100.3(d). Operators must avoid conditions and practices that could causeinjuries. *Id*. Negligence considers what actions a reasonably prudentperson—familiar with the mining industry, the facts, and the protective purposeof the cited regulation—would have taken. *Leeco, Inc*., 38 FMSHRC 1634,1637 (July 2016) (citing *Brody Mining, LLC*, 37 FMSHRC 1687, 1702 (Aug.2015)). An ALJ may “evaluate negligence from the starting point of atraditional negligence analysis” rather than consulting the Secretary’sdefinitions. *Brody Mining, LLC*, 37 FMSHRC at 1702.

**IV.            ****FINDINGSOF FACT AND CONCLUSIONS OF LAW**

 

**A.   **Citation No. 8785486in violation of 30 C.F.R. §56.13015

 

1.      Fact ofViolation

 

The condition or practice cited byBasich was that the 30-gallon pressure air receiver tank located in the bed ofthe mechanic’s Ford F-550 truck did not have a current record of inspection.Ex. S-2. The Secretary assessed the violation as unlikely to cause injury, butof a fatal nature to one miner and the result of moderate negligence. Theproposed penalty is $114.00.

 

The mandatory standard requires thatcompressed air receivers and other pressure vessels shall be inspected byinspectors holding a valid National Board Commission and in accordance with theapplicable chapters of the National Board Inspection Code (“NBIC”). Records oftheinspections shall be kept in accordance with the NBIC and shall bemade available to the Secretary or his authorized representative. 30 C.F.R.§56.13015 (a) and (b). 

 

The applicable Chapter II of the NBICrequires that “inspections of ... pressure vessels as provided for injurisdictional regulations, will be made at the time of installation and atregular intervals thereafter.” R-10 at 5. The purpose of the NBIC is “tomaintain the integrity of such ... vessels after they have been placed intoservice...by providing rules and guidelines for inspection afterinstallation....thereby helping to ensure that these objects may continue to besafe.” Ex. R-10 at 5. 

 

2.      Findings of Factand Analysis

 

Basich testified that regularinspections of a pressurized tank once it has left the manufacturer iscritical. Tanks are handled multiple times thereafter in shipment, installationand pressurization. Such handling can cause fractures in the tank that areinvisible to the naked eye yet serious enough to turn the tank into a “bomb”when pressurized during normal use. Shrapnel from the tank could easily causefatal injuries should a miner be exposed to such an event. National Boardinspectors perform tests that measure the thickness of the tank wall andinspect for any cracks, scars or other signs of damage using specializedequipment to ensure their continued safety. Once the tank is inspected, it isdocumented on paper with the name of the certified inspector, name of theircompany and the date on which the inspection was performed. 

Therecord indicates that the RFR tank was installed on the F-550 truck on December17, 2014, one year and seven months prior to Basich’s inspection. It was thenplaced into operation at the mine on February 25, 2015, one year and fivemonths prior to the inspection. Kelly George, Vice President of RFR testifiedthat the RFR trucks are driven to multiple work sites across state lines withfrequency. Tr. 70. It is therefore evident that any one of these transportationcircuits as well as more than one year’s normal use and wear and tear on thetank could cause undetectable damage resulting in a catastrophic injury. 

 

Rain for Rent contests that violation onseveral bases, essentially arguing that the manufacturer’s plate issued by theAmerican Society of Mechanical Engineers (“ASME”) (which was on the tank)complied with the mandatory standard and that the Secretary’s actions werearbitrary and capricious, and deprived the Respondent of fair notice and dueprocess. None of these arguments are persuasive or relevant.

 

Respondent cites to Chapter IV of theNBIC in support of its argument that the ASME plate on the tank was incompliance with the cited standard. Chapter IV, however, expressly “limits itsapplication to the inspection during construction of and assembly of newpressure vessels.” Ex. R-10 at 4. Respondent further relies on *D&HGravel*, 31 FMSHRC 272 (2009)(ALJ) in support of its position that the Secretary’sinterpretation of the standard is contrary to Commission precedent. Interestingly,Respondent failed to properly cite the case (or make mention of the fact) inits brief that *D&H Gravel* is an ALJ decision which holds noprecedential value. I find, as a matter of law, the decision in that case was amisinterpretation of the mandatory standard and Chapter II of the NBIC.

            Notonly does RFR cite an inapplicable chapter of the NBIC and a decision of noprecedential value, but its position flies directly in the face of theprotective purpose of the Mine Act and could certainly not be so interpreted bya reasonable person familiar with the mining industry charged with being awareof the Secretary’s rules and regulations. 

 

Respondent also argues in its brief:

 

The California permit, like themanufacturer’s plate with an ASME certification, does not say “Nationally BoardCertified” on its face. The arbitrariness of choosing to accept one and not theother is egregious in light of the fact the California permit does not evenrepresent an inspection by an individual holding a National BoardCertification. See Cal. Code Regs. tit. 8,§ 779. Issuing a citation withoutconsidering the manufacturer’s inspection plate with the ASME stamp, whichFMSHRC precedent expressly finds is sufficient, shows that the action wasarbitrary and capricious. See D&H Gravel, 31 FMSHRC at 280.

 

RFRbrief at 12. While difficult to make out the logic of the argument, it is clearthat it misplaced. As found above, the SOL has not accepted the ASME stamp orthe CA permit as evidence of compliance with the cited standard, nor have I.Again, reliance on D&H Gravel is misplaced. There is no “FMSHRC precedence”that finds the ASME stamp sufficient.

RFRfurther contends that Inspector Basich issued his citation for the operator’sfailure to comply with California law depriving it of fair notice. This is notthe case. Basich found a violation of the unambiguous cited mandatory standardwhen he found no Commission-certified inspection on the tank or documentaryevidence of the same. He did not apply California Law.

Rainfor Rent’s due process argument is based, again, on D&H Gravel and istherefore, again, misplaced and irrelevant.

 

I hold that the SOL has proven by apreponderance of the evidence that a person with a valid National BoardCommission did not inspect the tank within the plain and unambiguous languageof 30 C.F.R. §56.13015(a). The standard provided the operator with adequatenotice that such an inspection was required. I also find RFR failed to providethe Secretary through its authorized MSHA inspector documentary proof therequired inspection in violation of 30 C.F.R. §56.13015(b). 

 

3.      Negligence andGravity

 

Basich testified that he assessed thenegligence as moderate because it was an open and obvious condition that RFRshould have been aware of. Vice President Kelly George, who holds degrees inoccupational safety and health and jurisprudence, testified that he was awarethat California air tank inspectors were not required to be commissioned by theNational Board and he could not ensure that RFR tanks were inspected bycommissioned inspectors. I find moderate negligence is appropriate, althoughonly just. I find the violation is reasonably serious and could have resulted ina fatal injury to one person should the unlikely event of a tank explosionoccur.

 

**B.    **Citation No.8785487 inviolation of 30 C.F.R. §56.4402

1. Facts of Violation

 

The condition or practice Basich citedduring his July inspection was that one of two 5 gallon safety cans located inthe bed of the Ford F-550 truck was not labeled to indicate its contents. Itwas full of gasoline according to the truck driver. It is accessed as unlikelyto cause and accident or injury resulting in lost workdays or restricted dutyaffecting one miner and the result of moderate negligence. Ex. S-6. TheSecretary has proposed a civil penalty of $114.00.

 

The cited mandatory standard requires“[s]mall cans of flammable liquids drawn from storage shall be kept in safetycans labeled to indicate the contents. 30 C.F.R. §56.4402.

 

Basich testified that he found the citedred can was not labeled to indicate its contents. “So you couldn’t tell lookingat the outside of the can what was inside the can.” Tr. 29; Ex. S-7. The can isvisibly old, dented and scratched. A similar red can was found as well whichhad a label on it indicating that it contained diesel fuel. Tr. 59. Basich wasconcerned with the failure to label the can as misuse of it could lead to afire. Tr. 14. At the time he issued the violation, it was late in the daytowards the end of the shift and the gas can was full. Tr. 64.

 

B. Findings of Fact and Analysis

 

The Secretary asserts that the meaningof “contents” in this context means the name of the actual substance within thecan. The Respondent, to simplify its myriad of arguments, urges that the colorof the can, the printed warnings such as “flammable, explosive, and dangerous”and the like satisfy the language of the standard. 

 

I agree with the Secretary’sinterpretation of this clearly worded standard. The word “contents” asInspector Basich indicted, answers the question, “What’s inside?” The responseis a thing -a noun, not an adjective describing the properties of what may beinside the can if it is filled with the intended contents – gasoline. That thered color of the can indicates the can should be filled with gasoline, incontrast to a yellow can which is suggested for diesel fuel, as RFR argues, isirrelevant. Nothing in the manufacturer’s literature or the National FireProtection Code provisions submitted by RFR in support of the assertion thatthe red can is a sufficient indication of the contents therein, rules out theuse of a red can for other substances. RFR also points to MSHA HazardousCommunication (“HazCom”) and OSHA standards as well as the MSHA Program PolicyLetter (“PPL”) No. P13-IV-01 as proof that the cited can satisfies therequirements of §56.4402. Aside from being under entirely different sections ofC.F.R. from what was cited here, the hazcom provisions offer no support ofRFR’s position. The PPL requires a container to be labeled to include “thechemical identity” in addition to the appropriate warnings (flammable, toxic,explosive, etc.). Ex. R-4. Additionally, the PPL also states that OSHA requireslabels to include the product identifier and chemical identity and have aMaterial Safety Data Sheets (“MSDS”) on hand to cross-reference for eachhazardous chemical used at the mine. The significance of this is, an MSDScannot be cross-referenced to “flammable” or any other adjective describing theproperty of a particular chemical without the specific identification of thechemical in question.

 

Respondent once again misguidedly cites *BellaireCorporation*, 12 FMSHRC 1726 (1990)(ALJ) as precedence for finding the redcan was sufficiently labeled. Again, RFR fails to properly cite or refer to thecase as an ALJ decision, not Commission precedent. Furthermore, the issue inBellaire was entirely different from the instant case. In fact, theAdministrative Law Judge stated, “[t]he issue is whether the cans containinggasoline were properly ‘identified.’ The cited safety standard expresslyrequires only ‘proper identification,’ not ‘proper labeling.’” *Bellaire*at 1730. 

 

The language of the standard in questionis unambiguous. Any reasonable person familiar with the mining industry wouldknow that a “label indicating contents” means what the particular substance isinside the can. I find the Secretary has met his burden of proving thisviolation.

 

**C.   **Negligence andGravity

 

I find the violation to be reasonablyserious. Should the can be improperly handled, it could lead to serious burnsto the driver of the truck. I agree with Basich that it would be unlikely.

 

I find the negligence is properlyassessed at moderate. The driver of the truck knew the can contained gasolineas opposed to the other red can containing diesel – a nonflammable fuel. However,the can was still full at the end of the shift and he was not the only minerwith access to the can. Having both red cans containing different substances onhand could easily lead an inattentive miner to confuse the two and mishandle ormisuse it resulting in injuries. 

 

 

**V.               ****PENALTIES**

 

Section 110(i)of the Mine Act grants the Commission the authority to assess all civilpenalties provided for by the Act. *Mize Granite Quarries, Inc.*, 34FMSHRC 1760, 1763 (Aug. 2012) (citing**30 U.S.C. § 820(i)). Indetermining penalty amounts, Section 110(i) directs the Commission to consider:

 

[T]he operator’shistory of previous violations, the appropriateness of such penalty to the sizeof the business of the operator charged, whether the operator was negligent,the effect on the operator’s ability to continue in business, the gravity ofthe violation, and the demonstrated good faith of the person charged inattempting to achieve rapid compliance after notification of a violation.

 

30U.S.C. § 820(i). 

 

            TheCommission and its ALJs are not bound by the penalties proposed by theSecretary, nor are they governed by MSHA’s Part 100 regulations, although ALJpenalty assessments “must reflect proper consideration” of the Section 110(i)criteria. *Am. Coal Co.*, 38 FMSHRC 1987, 1992-93 (Aug. 2016) (citationsomitted). In addition to considering the Section 110(i) criteria, the judgemust provide a factual basis upon which the Commission can perform its reviewfunction. *See Martin Co. Coal Corp.*, 28 FMSHRC 247, 265-66 (May 2006)(citing *Sellersburg*, 5 FMSHRC 287, 292-93 (Mar. 1983)). My analysis ofthe Section 110(i) factors is set forth below.

 

The parties havestipulated that RFR had no history of violations at the time these citationswere issued and that the violations were abated in good faith. There is noevidence of record of the operator’s inability to pay the proposed assessmentsand find that it is a large, global company and therefore find the penaltieswill not affect the operator’s ability to continue in business. The findings asto gravity and negligence involved in each citation are set forth above. 

 

After considering the sixstatutory penalty criteria, I assess a penalty of $114.00for Citation No. 8785486 and $114.00 for Citation No. 8785487.

** **

**ORDER**

** **

****Rain for Rent ishereby **ORDERED**to pay a total penalty of $228.00for the violations herein within thirty (30) days of the date of this Decisionand Order.[4]

 

 

 

 

                                                                                    /s/Priscilla M. Rae

Priscilla M. Rae

# Administrative Law Judge

 

 

Distribution: 

 

Andrew Tardiff,Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite401, Arlington, VA 22202

 

Byron Walker,Rose Law Firm, 120 East Fourth Street, Little Rock, AR 72201

----

[1] This case waspreviously before the Commission. *Rain for Rent*, 40 FMSHRC 976 (July2018), *aff’g*39 FMSHRC 1448 (ALJ 2017). The United States Court ofAppeals for the District of Columbia Circuit remanded this case in light of theSupreme Court’s decision in *Lucia v. SEC*, 138 U.S. 2044 (2018). *SeeW. Oilfields Supply Co. v. FMSHRC*, No. 18-1269 (D.C. Cir. Mar. 22, 2019). TheCommission subsequently remanded this case to the undersigned for a hearing anddecision on the merits. 41 FMSHRC 243 (May 2019).

[2] In thisdecision, the abbreviation “Tr.” refers to the transcript of the hearing. TheSecretary’s exhibits are numbered Ex. S-2 to S-7. The Respondent’s exhibits arenumbered Ex. R-1 to R-12. The stipulations are the only joint exhibit, Jt. Ex.1. References to the Secretary’s Post-Hearing Brief are designated “SB,” andreferences to the Respondent’s Post-Hearing Brief are designated “RB.” 

 

[3] Basich hasserved as a mine safety and health inspector with MSHA for seven years. Tr. 9,10. Prior to becoming a mine inspector, Basich was employed in the constructionindustry, where he held supervisory positions. Tr. 10, 11. Basich attended theMine Safety and Health Academy, and has specifically received training onpressure vessels and fire prevention. Tr. 12. 

 

[4] Payment shouldbe sent to: Mine Safety and Health Administration, U.S. Department of Labor,Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.