**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OF ADMINISTRATIVELAW JUDGES

721 19th ST.SUITE 443

DENVER, CO 80202-2500

TELEPHONE: 303-844-5266/ FAX: 303-844-5268

 

 
| SECRETARY OF LABOR,

MINE SAFETY AND HEALTH        

ADMINISTRATION (MSHA),

             Petitioner,

 

             v.

 

 

 

P.W. GILLIBRAND OF TEXAS, INC.,

              Respondent.

 

                                              |   |   | CIVIL PENALTY PROCEEDINGS

 

Docket No. CENT 2021-0104

A.C. No. 41-03618-529109

 

 

 

 

 

Mine: Voca West |
|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**DECISION**

 

Appearances:              MariaC. Rich-DoByns, CLR, U.S. Department of Labor, MSHA, 1100 Commerce Street, Room462, Dallas, TX 75242

 

                                    MeghanNeal, P.W. Gillibrand Co., Inc., 1000 Oglebay Norton Drive, Brady, TX 76825

 

 

Before:                                    Judge Simonton 

 
    - INTRODUCTION

** **

This case is before me on apetition for assessment of civil penalty filed by the Secretary of Labor,acting through the Mine Safety and Health Administration, against P.W.Gillibrand of Texas, Inc. (“PWG” or “Respondent”), pursuant to the Federal MineSafety and Health Act of 1977 (Mine Act), 30 U.S.C. § 801.[1] This case involves twoSection 104(a) citations with a total proposed penalty of $250.00. Respondenthas withdrawn its contest of Citation No. 9516972, so only Citation No. 9516971 remains in dispute. Jt. Stip. 9.

The parties presented testimony anddocumentary evidence regarding the citation at issue at a virtual hearing heldon September 23, 2021. MSHA mine safety and health specialist Ty Fishertestified for the Secretary. PWG environmental health and safety manager JimmyPalacio testified for Respondent. After fully considering the testimony andevidence presented at hearing and the parties’ post-hearing briefs, I **AFFIRM**Citation No. 9516971, as modified herein.

 
    - STIPULATIONS OF FACT

** **

At hearing, the parties agreed tothe following stipulations:

 
    -  P.W. Gillibrand, at all times relevant to these     proceedings, engaged in mining activities and operations at the Voca West     (Mine I.D. 41-03618) (the “Voca West Mine”) in McCulloch County, Texas.

 
    -  P.W. Gillibrand is subject to the jurisdiction of the     Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§  et seq.  (the     “Mine Act”).

 
    -  P.W. Gillibrand’s mining operations affect interstate     commerce within the meaning and scope of § 4 of the Mine Act, 30 U.S.C. §     803.

 
    - Respondent is an “operator” as defined in § 3(d) of the     Mine Act, 30 U.S.C. § 803(d), at the Mine where the contested citations in     these proceedings were issued.

 
    - The Administrative Law Judge has jurisdiction over these     proceedings pursuant to § 105 of the Mine Act.

 
    - The individual whose signature appears in Block 22 of the     contested citations at issue in this proceeding is an authorized     representative of the United States of America’s Secretary of Labor,     assigned to MSHA, and was acting in his official capacity when issuing the     citations at issue in these proceedings.

 
    - The citations at issue in this proceeding were properly     served upon P.W. Gillibrand, as required by the Mine Act.

 
    - The penalties associated with the violations in this docket     if imposed, will not affect the Mine’s ability to remain in business.

 
    - The Respondent agrees to withdraw contest of Citation No.     9516972 and agrees to pay the assessed penalty of $125.00.

 

Tr. 7-8, 12.

** **
    - FINDINGS OF FACT AND SUMMARY     OF TESTIMONY

** **

PWG operates the Voca West mine, asand plant located in McCulloch County, Texas. Tr. 22, 82; Jt. Stip. 1. OnOctober 7, 2020, MSHA mine safety and health specialist Ty Fisher[2] arrived at themine to conduct a regular EO-1 inspection. Tr. 23. While inspecting the site,he was accompanied by three members of mine management: shift supervisor MikeWeeks, environmental health and safety manager Jimmy Palacio, and manager TonyVargas. Tr. 26-27. Fisher traveled throughout the mine and inspected the pit,tire plant, fuel island, shop, and offices. Tr. 28.

 

While inspecting the shop area,Fisher issued a citation when he discovered there were no readily visiblewarning signs prohibiting smoking or open flames at the grease station used toservice equipment. Tr. 28-29, 76; Ex. S-1-1. Fisher explained at hearing thatthere were three barrels present at the grease station. Tr. 29. One 55-gallonbarrel contained a red grease and was hooked up to a grease gun. Tr. 30, 38,79, 111; Exs. S-1-2, S-2-1A, S-2-9. That barrel also had grease on the outsideof it and was connected to an air pump located on top of the barrel. Tr. 38;Ex. S-2-9. A second 55-gallon barrel was mostly empty except for green greaseresidue along the inside of it. Tr. 30, 39, 79; Exs. S-1-2, S-2-1A, S-2-11. Athird, 33-gallon barrel was located below the grease gun to catch drips, butalso contained four inches of combustible trash inside. Tr. 30-31, 34-35, 79;Exs. S-1-2, S-2-1A, S-2-8A.

 

Fisher testified that he believedthe grease barrels posed a fire hazard because the combustible materials storedin the open barrel could be easily ignited by a spark and potentially cause thegrease to burn. Tr. 35, 40. Fisher noted that grease fires emit toxic fumes andare harder to extinguish than other types of fires. Tr. 40. To terminate theviolation, the mine installed a warning sign at the grease station. Tr. 52, 85;Ex. S-2-12.

 

PWG’senvironmental health and safety manager, Jimmy Palacio,[3] testified for Respondent. Examiningthe safety data sheet for the green grease, he explained that he did notbelieve the green grease posed a fire hazard. Tr. 94; Ex. R-E-4. Palacio didnot believe a warning sign cautioning against smoking and open flame would be areasonable precaution to implement for this material. Tr. 105-06.

** **
    - DISPOSITION

 

During his inspection on October 7,2020, Fisher issued 104(a) Citation No. 9516971, which alleged:

 

The grease stationarea at the shop had no warning signs prohibiting no smoking or open flamesreadily visible. The combustible grease barrels (3) that are used to greaseequipment if ignited are a fire hazard to miners working near them, exposingthem to burn injuries and smoke inhalation. There was no ignition sourceobserved in the immediate are. The maintenance shop has an available fullyfunctional fire extinguisher nearby.

 

Ex. S-1-1; Tr. 28.

 

Fisherdesignated the citation as a non-significant and substantial violation of 30C.F.R. § 56.4101 that was unlikely to cause an injury that could reasonably beexpected to result in “lost workdays or restricted duty,” would affect oneminer, and was caused by PWG’s moderate negligence. Ex. S-1-1. 

 
    - Fact of Violation

 

The Commissionhas long held that “[i]n an enforcement action before the Commission, theSecretary bears the burden of proving any alleged violation.” *Jim WalterRes., Inc.*, 9 FMSHRC 903, 907 (May 1987); *Wyoming Fuel Co.*, 14FMSHRC 1282, 1294 (Aug. 1992). The Commission has described the Secretary’sburden as:

 

The burden ofshowing something by a “preponderance of the evidence,” the most commonstandard in the civil law, simply requires the trier of fact “to believe thatthe existence of a fact is more probable than its nonexistence.” *RAG CumberlandRes. Corp.*, 22 FMSHRC 1066, 1070 (Sept. 2000); *Garden Creek PocahontasCo.*, 11 FMSHRC 2148, 2152 (Nov. 1989). For the reasons that follow, I findthat the Secretary has presented sufficient evidence to show that PWG violated30 C.F.R. § 56.4101.

 

30 C.F.R. §56.4101 provides that “[r]eadily visible signs prohibiting smoking and openflames shall be posted where a fire or explosion hazard exists.” The Secretaryasserts that the mine’s grease station posed a fire hazard. Sec’y Br. at 5-6. Atthe grease station, there were three barrels: one closed barrel containing ared grease, one closed barrel with residue of a green grease coating theinside, and one open barrel catching drips of the red grease with about fourinches of trash inside it. Respondent presented testimony and documentaryevidence regarding the flammability of the green grease but failed tomeaningfully address the relevant properties of the red grease. The safety datasheet for the green grease conveys that that the grease is “not consideredflammable or combustible, but this product will burn if involved in a fire.” Ex.R-E-1. The grease will also emit toxic fumes when burned. *Id*. Fishertestified that the grease at the grease station was a combustible liquid, and,while it did not pose an explosion hazard, it did present a fire hazard eventhough the grease was not flammable. Tr. 57-58.

 

As Fishertestified at hearing, the green grease at issue here “is not the only firehazard.” Tr. 76. There were two greases present alongside paper and othertrash. While the flammability of the red grease was not established, it isclear that the paper and rags present in the open barrel posed a fire hazardbecause they are undoubtedly flammable. Given the presence of that trash, andits proximity to grease that emits toxic fumes when burned, I find that thecondition of the grease station at Voca West posed a fire hazard. 30 C.F.R. §56.4101 requires signage to be posted where a fire or explosion hazard exists,and by failing to post signage at the grease station, PWG violated thestandard.

 
    - Gravity

 

Fisherdesignated the citation as unlikely to cause an injury that could be reasonablyexpected to result in lost workdays or restricted duty. Ex. S-1-1. At hearing,Fisher explained that there was no potential ignition source at the greasestation, and that the area is only used to service equipment at certain times,so there was low exposure to the hazard. Tr. 41, 45. He marked “lost workdaysor restricted duty” because, if a fire were to occur in the area, the mostlikely injuries would be smoke inhalation or burns. Tr. 46. There were clearand open escape routes on three sides of the grease station, so someoneaffected by the hazard would be able to get away from it. Tr. 46. Because thecitation is marked “unlikely,” it is not considered a significant andsubstantial violation. Tr. 46. Respondent did not contest the gravitydesignations for this violation, and I find the designations made by theinspector to be appropriate. 
    - Negligence

 

Under the Mine Act, operators areheld to a high standard of care, and “must be on the alert for conditions andpractices in the mine that affect the safety or health of miners and to takesteps necessary to correct or prevent hazardous conditions or practices.” 30C.F.R. § 100.3(d). MSHA’s regulations define reckless disregard as conductwhich exhibits the absence of the slightest degree of care, high negligence asactual or constructive knowledge of the violative condition without mitigatingcircumstances; moderate negligence as actual or constructive knowledge of theviolative condition with mitigating circumstances; and low negligence as actualor constructive knowledge of the violative condition with considerablemitigating circumstances. 30 C.F.R. § 100.3: Table X.

 

Fisherdetermined that the violation was a result of PWG’s moderate negligence,explaining at the hearing that “the operator should have known to put upwarning signs prohibiting smoking and no open flames,” but there weremitigating circumstances. Tr. 47. The grease station had been put in only oneor two months before the inspection, and supervisors were unaware that therewas no signage posted. Tr. 47. Fisher also stated that there were numerousother signs prohibiting smoking and open flames throughout the mine site, which“showed that they do their due diligence and it was just an oversight.” Tr. 47.

 

PWG should haveknown to put up a warning sign at the grease station. However, given theconsiderable mitigating circumstances, I reduce PWG’s negligence from moderateto low for this citation. 

** **
    - PENALTY

** **

It is wellestablished that Commission administrative law judges have the authority toassess civil penalties de novo for violations of the Mine Act. SellersburgStone Company, 5 FMSHRC 287, 291 (Mar. 1983). The Act requires that inassessing civil monetary penalties, the Commission ALJ shall consider the sixstatutory penalty criteria:

(1) theoperator’s history of previous violations, (2) the appropriateness of suchpenalty to the size of the business of the operator charged, (3) whether theoperator was negligent, (4) the effect on the operator’s ability to continue inbusiness, (5) the gravity of the violation, and (6) 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).

 

            For Citation No. 9516971, the Secretary proposeda regularly assessed penalty of $125.00. PWG has a minimal violation historyand is a relatively small operator. Tr. 24-25, Ex. S-5. The parties stipulatedthat the penalty will not affect PWG’s ability to continue in business. Jt.Stip. 8. As discussed above, I find that this non-S&S violation wasunlikely to result in an injury causing lost workdays or restricted duty andwas the result of PWG’s low negligence. Finally, PWG demonstrated good faith inquickly installing a sign to achieve compliance with the cited standard. Inlight of these considerations, I find that the proposed penalty of $125.00 isappropriate. 

 

            For Citation No. 9516972, the Secretary hasproposed a regularly assessed penalty of $125.00. PWG has withdrawn its contestof this violation and agreed to pay the proposed penalty. Jt. Stip 9. Asrequired by the Mine Act, I have considered the representations anddocumentation submitted and conclude that the proposed penalty is appropriateunder the criteria set forth in Section 110(i) of the Act.

 
    - ORDER

 

It is hereby **ORDERED**to paythe Secretary the total sum of **$250.00** within 40 days of this order.[4]

 

 

/s/David P. Simonton

David P. Simonton

AdministrativeLaw Judge

 

 

Distribution: (Email[5]) 

 

Maria C. Rich-DoByns, CLR, U.S. Department of Labor, MSHA,1100 Commerce Street, Room 462, Dallas, TX 75242 (dobyns.maria@dol.gov)

 

Jimmy Palacio, P.W. Gillibrand of Texas, Inc., 1000 OglebayNorton Drive, Brady, TX 76825 (jimmy.palacio@pwgtx.com)

 

Meghan Neal, P.W. Gillibrand Co., Inc., 1000 Oglebay NortonDrive, Brady, TX 76825 (meghan.neal@pwgcoinc.com)

----

[1]In this decision,the joint stipulations, transcript, Secretary’s exhibits, and Respondent’sexhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S–#,” and “Ex. R–#,”respectively.

[2]Ty Fisher hasworked for MSHA for two years and 10 months. Tr. 19. He has worked in themining industry for many years, including as a safety director and as afirefighter. Tr. 20-21.

[3]Jimmy Palacio hasworked for PWG for 18 months, oversees three mines, and has over seven years ofexperience working in mine safety and health. Tr. 81.

[4]Please pay penalties electronically at Pay.Gov, a service of the U.S.Department of the Treasury, at https://www.pay.gov/public/form/start/67564508.Alternatively, send payment (check or money order) to: U.S. Department ofTreasury, Mine Safety and Health Administration

P.O. Box 790390, St. Louis, MO63179-0390. Please include Docket and A.C. Numbers. 

[5]Forthe foreseeable future, Federal Mine Safety and Health Review Commission(FMSHRC) notices, decisions, and orders will be sent only through electronicmail. Because FMSHRC will not be monitoring incoming physical mail or faxes,parties are encouraged to submit all filings through the agency’s electronicfiling system. If you are not able to file through our electronic filingsystem, please send an email copy and we will file it for you.