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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

April 19, 2022 

DECISION AND ORDER

Appearances: Tina D. Davila, U.S. Department of Labor, Office of the Solicitor, 525 

Griffin Street, Suite 501, Dallas, TX 75202 

Andy Carson, Cactus Canyon Quarries Inc., 7232 Co. Road 120, Marble 

Falls, TX 78654 

Before: Judge Simonton 

I. INTRODUCTION

This case is before me upon a petition for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration, against Cactus 

Canyon Quarries, Inc. (“Cactus Canyon” or “Respondent”), pursuant to the Federal Mine Safety 

and Health Act of 1977 (Mine Act), 30 U.S.C. § 801.1

 This case involves three Section 104(a) 

citations. 

The parties presented testimony and documentary evidence at a virtual hearing held on 

September 21–22, 2021. MSHA Inspector Ty Fisher testified for the Secretary. Cactus Canyon 

employees Esmael Garcia and Jesus Garcia and president Andy Carson testified for Respondent. 

After fully considering the testimony and evidence presented at hearing and the parties’ posthearing briefs, I AFFIRM Citation No. 9641812, as modified herein, and VACATE Citation 

Nos. 9641813 and 9641814. 

1 In this decision, the joint stipulations, transcript, Petitioner’s exhibits, and Respondent’s 

exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. P–#,” and “Ex. R–#,” respectively.

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner,

 v. 

CACTUS CANYON QUARRIES INC., 

 Respondent.

CIVIL PENALTY PROCEEDING

Docket No. CENT 2021-0090 

A.C. No. 41-00009-527340 

Mine: Fairland Plant & Qys
II. STIPULATIONS OF FACT

At hearing, the parties agreed to the following stipulations:

1. Cactus Canyon Quarries, Fairland Plant & Qys is a mine as defined under section 3(h) of 

the Mine Act, 30 U.S.C. § 802(h).

2. The mine is subject to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq.

3. Respondent is subject to the jurisdiction of the Federal Mine Safety and Health Review 

Commission and the presiding Administrative Law Judge has the authority to hear the 

case and issue a decision.

4. At all times relevant to these proceedings, the products of the subject mine enter into 

commerce or the operations of products thereof which affect commerce within the 

meaning and scope of the Mine Act.

5. Copies of the citations and contest are authentic, and a copy was served on the 

Respondent by an authorized representative of the Secretary employed by the Mine 

Safety and Health Administration.

6. The individual whose signature appears on block 22 of the citation at issue in this 

proceeding is an authorized representative of the United States of America, Secretary of 

Labor assigned to MSHA, and was acting in his official capacity when issuing the 

citations at issue in this proceeding.

7. Respondent timely contested the violations.

8. Respondent abated the citations timely and in good faith.

Tr. 10-18.

III. FINDINGS OF FACT AND SUMMARY OF TESTIMONY

Cactus Canyon operates Fairland Plant and Qys, a small mine located in Marble Falls, 

Texas, that produces and sells over thirty colors of various size marbles to the terrazzo industry. 

Tr. II 79. On November 5, 2020, MSHA mine safety and health specialist Ty Fisher,

2 who was a 

mine safety and health inspector for MSHA at that time, conducted an inspection of the mine. 

2 At the time of the hearing, Ty Fisher had worked at MSHA for two years and ten months. Tr. I

117. He has worked in the mining industry for well over 30 years. See Tr. I 287.
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Tr. I 117-18. During the inspection, Fisher issued the three citations contested in this 

proceeding.

Fisher testified that he issued one citation when he determined that the low brake pressure 

alarm on the #34 yellow International end dump truck at the mine was not functioning. Tr. I

118; Ex. P-3. He explained that the purpose of the vehicle’s low brake pressure alarm is to alert 

the driver when the reservoir air tank reaches 50 or 60 percent of its normal operating capacity. 

Tr. I 118-19. When pressure is lost in the tank, less pressure is applied when the driver engages

the brakes, and the alarm exists to warn the driver of this reduced braking capability. Tr. I 118-

19. Fisher testified that the cited truck was loaded at the time of inspection, and a loaded truck 

with reduced braking capacity is hazard because an operator may not be able to stop the vehicle.

Tr. I 121, 184. To terminate the citation, the mine repaired the alarm that same day. Ex. P-3 at

2.

Cactus Canyon employee Esmael “Izzy” Garcia3 confirmed that at the time of the 

inspection the truck was loaded and available to be driven, and that the low brake pressure alarm

on the truck did not function when tested. Tr. I 53-54. He said this truck is used two to three 

times per day. Tr. I 57-58. He accompanied the inspector during the inspection and helped him 

test all of the trucks. Tr. II 28. He recounted that, on this truck, every component of the brake

system was fully functional other than the low brake pressure alarm. Tr. II 31. When asked if 

the low brake pressure alarm is part of the truck’s brake system, he answered that it is not. Tr. II 

72. Esmael Garcia expressed his understanding that a low brake pressure alarm does not affect 

any part of the brake system. Tr. II 37. In other words, whether the alarm is working or not, it 

has no bearing on whether the vehicle can properly brake or not; a nonfunctioning alarm will not 

cause the truck to lose braking capability. Tr. II 39-40. He further explained that in a situation 

where the air pressure was low and the alarm did not activate, the driver of the vehicle would

nevertheless be on notice that the pressure was low because the truck is equipped with pressure 

gauges for both the air tanks in the vehicle. Tr. II 38, 72. Both of these gauges were functioning

properly. Tr. I 216.

Cactus Canyon employee Jesus Garcia4 also testified that the low brake pressure alarm 

was not working during the inspection, and that the truck in question is generally used two to 

three times per day. Tr. I 91-93. Before the inspection at issue, he did not know the purpose of 

the low brake pressure alarm and said at hearing that in his 40 years at the mine, “no one has

ever said anything about those alarms.” Tr. I 92. Jesus Garcia fixed the low brake pressure 

alarm to terminate the citation. Tr. II 7.

At hearing, mine president Andy Carson did not contest that the low brake pressure alarm

on the #34 truck was not functioning. However, he asserted that the alarm was not a part of the

truck’s brake system, since it “reports on the status of the system” but “does not affect the system 

itself.” Tr. II 94. He testified that the alarm was essentially unnecessary at the mine because the 

3 Esmael Garcia has worked at Cactus Canyon for 15 years as a general laborer and mechanic. 

Tr. I 43-47. He holds a commercial driver’s license. Tr. II 27.

4 Jesus Garcia has worked as a laborer at Cactus Canyon for approximately 40 years. Tr. I 81-83.
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gauges worked, and the alarm’s purpose was to give a driver time to pull off the road or 

highway, which would not be necessary at the mine because it has no traffic and imposes a speed 

limit of 10 miles per hour. Tr. II 93, 97. 

After issuing the citation for the brake pressure alarm, Fisher issued citations for two 

other trucks in service at the mine, both of which were cited for inoperable windshield wipers. 

Tr. I 151-52, 158-59; Exs. P-8, P-10. The first was the yellow #3 International end dump truck, 

and the second was the white Ford F8000 end dump truck parked next to it. Exs. P-8, P-10; Tr. I 

158. Through conversations with the miners on site, Fisher determined that both trucks were 

available and ready to be used. Tr. I 152, 158-59. When tested, the windshield wipers on both 

trucks failed to function. Tr. I 151, 158. Fisher testified that he believed the nonfunctioning 

wipers posed a hazard because, if a storm were to come on suddenly and the trucks were not near 

a parking area or somewhere else that they could be parked instantaneously, they may need to be 

operated in the inclement weather. Tr. I 155. He also noted that the wipers are necessary

because there could be dusty conditions where dust needs to be wiped off the windshield if the 

sunlight hits it and causes a reflection the driver cannot see through. Tr. I 156. To terminate 

these citations, the mine repaired the wipers on both trucks. Exs. P-8 at 2, P-10 at 2.

Esmael Garcia, Jesus Garcia, and Andy Carson all acknowledged that the windshield 

wipers were not functioning on these two trucks. See Tr. I 60-61, 69, 110; Tr. II 102. However,

they all testified that windshield wipers are essentially unnecessary on the trucks at the mine 

because of certain unique facts about this operation and the product it produces. Cactus Canyon

produces terrazzo marbles as well as some landscaping stones. Tr. II 79-81. While the 

landscaping stones can get wet, Carson explained that the terrazzo marbles cannot get wet or

dusty. Tr. II 81. This is because the product is eventually mixed with epoxy, so water will ruin 

the mixture, and any dust will likewise ruin the final product by changing the end color. Tr. II 

81. Accordingly, the mine needs to pay particular attention to keeping the product dry and dust 

free. Tr. II 81-82. Both Esmael Garcia and Jesus Garcia confirmed that the mine does not 

operate in inclement weather and testified that all employees at the mine are aware of this policy. 

Tr. I 65; Tr. II 9, 57, 59. Further highlighting the mine’s adherence to the policy, Esmael Garcia

testified that in his 15 years of working at the mine he has never been driving one of the trucks 

when it started raining. Tr. I 65. 

Due to the unique nature of the product the mine produces, Cactus Canyon must wash its

trucks very frequently. Andy Carson testified that the mine produces over 30 colors of terrazzo

marbles. Tr. II 79-80. Esmael Garcia testified that the trucks need to be clean so that the various

colors do not mix with one another. Tr. I 55. He specified that the trucks are washed out 

between uses, and that the windshields are washed in addition to the bed and back of the trucks. 

Tr. I 55-56. Jesus Garcia also testified that the trucks are washed before being loaded with a 

different color and that when performing this task, employees wash the entire truck, not just the 

truck bed. Tr. II 14-15. 
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Fisher testified that if there had been signage in the vehicles prohibiting their use during

any hazard that would occur because of obstructed vision, he would not have written the citations

for nonfunctioning windshield wipers. Tr. I 286. He did explain that had this been the case, he 

would have still recommended that the mine fix the wipers because, though sometimes 

acceptable, “administrative controls are never a good way to go.” Tr. I 286.

IV. DISPOSITION

A. Citation No. 9641812

During his inspection on November 5, 2020, Fisher issued section 104(a) Citation No.

9641812, which alleged:

The air brake system on the #34 yellow International end dump truck with serial 

#1HSLCHYN5GHA6607 & model #1754 with a Manufactures date of 

06/27/1986 was not maintained in functional condition. When inspected the 

operator (CDL license holder) demonstrated the correct method of testing the low 

brake pressure alarm, the low brake pressure alarm system failed to work in two 

attempts. This safety defect is an intricate part of the air brake system and when it 

is not maintained in a functional state affects the safe operation of the truck 

exposing the operator to injuries from a failed brake system.

Ex. P-3 at 1. Fisher designated the citation as a non-significant and substantial violation of 30 

C.F.R. § 56.14101(a)(3) 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 Cactus 

Canyon’s moderate negligence. Ex. P-3; Tr. I 134-35.

i. 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). To 

prevail, the Secretary must prove any cited violation “by a preponderance of the evidence.”

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 Cactus Canyon 

violated 30 C.F.R. § 56.1401(a)(3).

The regulation mandates that “[a]ll braking systems installed on the equipment shall be 

maintained in functional condition.” 30 C.F.R. § 56.1401(a)(3). The parties agree that the #34 

yellow International end dump truck in question was equipped with a low pressure warning 

signal, and that the signal was not functioning at the time of the inspection. Tr. I 53, 91, 118. 

The Secretary maintains that the low brake pressure alarm on the truck is a part of the

equipment’s air brake system. Tr. I 150; Petitioner’s Post-Hearing Brief (“Sec’y Br.”) at 3. The 
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Secretary asserts that because the alarm is a component of the braking system, and because the 

alarm was not functioning, the fact of violation should be affirmed. Sec’y Br. at 3.

Cactus Canyon asserts that 30 C.F.R. § 56.14101(a)(3) is inapplicable to the 

nonfunctioning low brake pressure alarm cited by the inspector. Respondent’s Post-Hearing 

Brief (“Resp. Br.”) at 17-20. Respondent argues that the low brake pressure alarm is not a part 

of the vehicle’s “brake system” because the alarm cannot cause the brakes to fail; it is merely a 

signal that reports on the functioning of the air brake system. Id. at 19. Accordingly, 

Respondent maintains the violation should be vacated. Despite Respondent’s fixation on this

point, this inquiry does not center on a determination of whether the alarm’s status as functional 

or not functional affects the braking capability of the vehicle. In fact, it is reasonably apparent 

from the facts established at hearing that the nonfunctioning alarm, which had not functioned in a 

long time, had no bearing on the actual braking capability of the truck. The low brake pressure 

alarm is a signal that alerts the vehicle’s operator to a loss of air pressure. Tr. I 118-19, 190-91. 

The signal was not functioning, but at the time of inspection, the truck’s brakes worked just fine. 

Tr. I 58, 141; Tr. II 31-32.

The proper inquiry here is simply whether the low brake pressure alarm is a component 

of the #34 truck’s “braking systems,” and thus must be maintained in functional condition under 

30 C.F.R. § 56.14101(a)(3). In Daanen & Jansen, Inc., the Commission considered this same 

standard in a case involving rear adjusting bolts that had become frozen in place. 20 FMSHRC 

189 (Mar. 1998). In that case, the respondent asserted that “the standard’s plain language 

requires a finding of violation only when the braking system fails to serve its primary purpose of 

stopping and holding the vehicle.” Id. at 191-92. The Secretary countered that “the plain 

language of the standard mandates a finding of violation when a component of the braking 

system is not maintained in functional condition, regardless of whether the braking system is 

capable of holding and stopping the vehicle.” Id. at 192. Alternatively, the Secretary argued that 

her interpretation of the standard, as outlined in MSHA’s Program Policy Manual, was 

reasonable and entitled to deference. Id. The Commission determined that the language of

section 56.14101(a)(3) supported at least two plausible and divergent interpretations, and 

accordingly found that it was ambiguous. Id. at 192-93. The Commission then examined the 

Secretary’s interpretation and found that it was consistent with the language of the regulation, 

that it advanced the Mine Act’s goal of protecting miner safety, that it had been consistently 

applied, and that it gave meaning to all subsections of the standard. Id. at 193-94.

In making its findings, the Commission in Daanen & Jansen looked at the common 

usage of the word “system,” and determined that, “[b]ecause the definition of the term ‘system’

entails an interrelationship of component parts, it follows that for the system to be considered 

functional, each of its component parts must be functional.” Id. at 193. Additionally, the 

Commission explained that the Secretary’s interpretation of the standard allows for a violation to

be issued before the entire braking system fails, and that this preventative interpretation advances 

the Mine Act’s goal of protecting miners because it seeks to cure defects before accidents occur. 

Id. The Commission also determined that the Secretary’s interpretation of the standard 
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embodied in the citation had been consistently applied and was succinctly stated in MSHA’s

Program Policy Manual. 5 Id. at 194.

As in Daanen & Jansen, it is undisputed in this case that the component at issue failed to 

perform its designated function—the low brake pressure alarm did not work. As anyone who 

drives a car can understand, a brake system on a vehicle serves the common purpose of slowing

and stopping the vehicle when its operator determines that doing so is desired or necessary. 

Even if the low brake pressure alarm does not actually cause the vehicle to slow or stop, it serves 

this common purpose by alerting the driver of the truck to reduced braking capacity. As Fisher 

explained at hearing, if the brake pressure is low and the alarm is not working, an operator may 

not be on notice that the truck has reduced braking capability and the truck might become a 

runaway. Tr. I 184, 198, 211. Obviously, this functionality is directly related to the purpose of 

the braking system as a whole. The alarm’s inclusion as part of the system is further 

demonstrated in a handout carried by the inspector to help him explain the components of brake 

systems to mine operators. Ex. P-7, at 5; Tr. I 149-50.

Respondent highlighted the fact that the low brake pressure alarm is essentially redundant

where the truck in question had fully functional, accurate pressure gauges that convey to the 

operator the air pressure in both air tanks at any given time. Resp. Br. at 20. This safety feature, 

though it may be redundant, does not obviate the requirement to maintain the alarm under section 

56.14101(a)(3). The standard requires that “all” components be functional, and, since the 

warning signal is a component of the braking system and was not functioning, Cactus Canyon 

has violated the standard. 

I find that the low brake air pressure alarm is, unquestionably, a component of the brake 

system of the #34 dump truck, that the alarm was not functioning at the time of inspection, and 

thus conclude that Cactus Canyon violated section 56.14101(a)(3). Accordingly, Citation No. 

9641812 is AFFIRMED, as modified below.

ii. Gravity

Fisher designated the citation as unlikely to cause an injury that could reasonably be 

expected to result in lost workdays or restricted duty. Ex. P-3. He explained at hearing that he 

marked the citation as “unlikely” because the brakes had no air leaks at the time of inspection, 

the horn on the truck is electric and would not use any air from the air tank when used, the air 

tanks are drained of moisture daily, and there is only one slope on the mine site. Tr. I 140-41. 

He further explained that he marked “lost workdays or restricted duty” because the driver is the 

only person who was likely to be affected by the hazard, and whiplash would be the most likely 

injury. Tr. I 143-44.

5 MSHA’s preventative interpretation analyzed in Daanen & Jansen remains the same all these 

years later: “Standard [56].14101(a)(3) should be cited if a component or portion of any braking 

system on the equipment is not maintained in functional condition even though the braking 

system is in compliance with (1) and/or (2) above.” IV MSHA, U.S. Dep’t of Labor, Program 

Policy Manual, Parts 56/57, at 51 (2003). 
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I find the gravity designations made by the inspector to be appropriate. The 

nonfunctioning low brake pressure alarm was unlikely to cause an injury because the air tanks 

were holding pressure, the tanks are drained of moisture daily, and there is only one slope at the 

mine site. The #34 truck is only used two or three times per day on mostly flat ground at low 

speeds. Tr. I 143-44. Fisher determined only one person—the driver—would be affected by this 

violation. Tr. I 144. I find that Fisher properly designated this violation as unlikely to cause an 

injury that could result in lost workdays or restricted duty and as affecting one person. 

iii. 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).

Fisher determined this violation was the result of Cactus Canyon’s moderate negligence because 

“no one seemed to know that the trucks had a low brake pressure alarm system.” Tr. I 144-45.

Pursuant to the Secretary’s regulations, negligence is considered moderate when “the operator 

knew or should have known of the violative condition or practice, but there are mitigating 

circumstances.” 30 C.F.R. § 100.3: Table X.

Unlike MSHA, however, the Commission and its judges determine whether an operator 

has met its duty of care using a traditional negligence analysis, considering the “totality of the

circumstances holistically,” including “what actions would have been taken under the same 

circumstances by a reasonably prudent person familiar with the mining industry, the relevant 

facts, and the protective purpose of the regulation.” Brody Mining, LLC, 37 FMSHRC 1687, 

1702 (Aug. 2015). In this case, Carson and his employees were unaware of the existence of the

low brake pressure alarm but should have been aware of it. Esmael Garcia had his commercial 

driver’s license and had been trained to perform the tests that would have detected the 

nonfunctioning alarm. Tr. II 29-30. A reasonably prudent person familiar with the mining 

industry likely would have taken the vehicle out of service until each component of the braking 

system was working properly. However, since Carson and his employees were not aware of the

alarm and utilized the functioning gauges to determine whether the air tanks were holding 

pressure, I reduce Cactus Canyon’s negligence from moderate to low for this citation.

B. Citation Nos. 9641813 and 9641814

Fisher issued nearly identical citations for the yellow #3 International end dump truck 

and the white Ford F8000 end dump truck, stating for each that the windshield wipers:

did not work when tested. This condition increases the risk of collision with other

equipment during dusty or inclement weather conditions exposing miners to 

injury. The loader was not taken out of service, marked or tagged out of service, 

parked in a designated area for equipment with defects, or was there any posting 

warning of this defect. Mine operator stated that the truck was parked in an area 

for operational and ready to be used equipment with another truck. There was no 

tag or energy isolation locking device on the truck.
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Exs. P-8 at 1, P-10 at 1. Fisher designated the citations as non-significant and substantial 

violations of 30 C.F.R. § 56.14100(c) that were unlikely to cause injuries that could reasonably 

be expected to result in “lost workdays or restricted duty,” would affect one miner, and were

caused by Cactus Canyon’s moderate negligence. Exs. P-8 at 1, P-10 at 1.

i. Fact of Violation

The cited standard mandates that

[w]hen defects make continued operation hazardous to persons, the defective 

items including self-propelled mobile equipment shall be taken out of service and 

placed in a designated area posted for that purpose, or a tag or other effective 

method of marking the defective items shall be used to prohibit further use until 

the defects are corrected.

30 C.F.R. § 56.14100(c).

Fisher testified that at the time of inspection the windshields of the two cited trucks were

not perfectly clean but were “good.” He explained, however, that the defective wipers made 

continued operation hazardous because dust can come up from equipment traveling throughout 

the mine site, and obstructed vision could cause an injury. Tr. I 273. He also testified that a 

storm requiring the use of the wipers could come on suddenly, even though the mine does not 

generally operate in inclement weather. Tr. I 155-56. Accordingly, the Secretary asserts that

these citations should be upheld because the operation is inherently dusty, and the water used to 

control dust as well as the water used to wash out the trucks could cause dust to stick to the

windshields and impair visibility. Sec’y Br. at 9-10. The Secretary contends that because the 

windshields could get dusty, continued operation of these two trucks was hazardous.

Cactus Canyon argues that these citations should be vacated because there was “no 

likelihood” of an obscured windshield that could be corrected by functioning windshield wipers. 

Resp. Br. at 16-17. At hearing, Carson expressed his opinion that “the hazard determination that 

there was some sort of danger. . . to health or safety does not have support.” Tr. II 101. 

Given the relevant facts, I agree. The standard mandates that defective equipment be

taken out of service “[w]hen defects make continued operation hazardous to persons.” 30 C.F.R. 

§ 56.14100(c). It is undisputed that the windshield wipers were not functioning on either of

these two trucks. See Tr. I 60-61, 69, 109-110. The broken wipers made the equipment 

defective. However, these defects did not make continued operation hazardous to persons at the 

mine. It is well established that Cactus Canyon does not operate in windy or rainy conditions 

and washes its trucks very frequently. Additionally, these vehicles are never operated outside of 

the mine, and are only used on site over a short distance at a maximum speed of 10 miles per 

hour. Tr. II 48, 93. Given these very unique facts, I find that the Secretary has failed to establish

that the broken windshield wipers made continued operation of these two trucks hazardous. 
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I find it is worth noting here that Fisher acknowledged that Cactus Canyon employees 

told him they shut down operations in the rain and that he considered the fact that employees

shut down the plant “when they’re supposed to.” Tr. I 236, 238. He later testified that had there 

been a notice in the vehicles informing employees not to operate in the rain, he would not have 

written the citations for the nonfunctioning wipers. Tr. I 283-84. While it may not have been 

established to the inspector’s liking at the time of inspection, I find that there was a wellunderstood policy at the mine to discontinue operations in windy and rainy conditions or when

there was a sufficient chance of such conditions. Though unwritten, the very policy that would

have prevented Fisher from issuing these citations was in place and adhered to by all employees.

In almost any other situation involving motor vehicles, it would be hazardous to operate without 

functioning wipers. In this unique circumstance, however, I find the Secretary has failed to meet 

its burden of proving a violation of section 56.14100(c) by a preponderance of the credible 

evidence. Accordingly, Citation Nos. 9641813 and 9641814 are VACATED.

V. 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 Co., 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. 9641812, the Secretary proposed a regularly assessed penalty of 

$123.00. Ex. P-2. Cactus Canyon has a minimal violation history and is a relatively small 

operation. Id. Respondent presented no evidence regarding whether payment of the proposed 

penalty would affect its ability to continue in business. As discussed above, I find that this nonsignificant and substantial violation was unlikely to result in an injury causing lost workdays or 

restricted duty and was the result of Cactus Canyon’s low negligence. Finally, Cactus Canyon 

demonstrated good faith in achieving rapid compliance after the citation was issued. Jt. Stip. 8. 

Considering these factors, I find that the proposed penalty of $123.00 is appropriate for this 

violation. 
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VI. ORDER

It is hereby ORDERED that Citation No. 9641812 is AFFIRMED, as modified to 

reduce the degree of negligence to “low,” and that Citation Nos. 9641813 and 9641814 are 

VACATED. Respondent is hereby ORDERED to pay the Secretary $123.00 within 40 days of 

this order.6

David P. Simonton 

Administrative Law Judge 

Distribution: (Electronic and U.S. First Class mail) 

Tina D. Davila, U.S. Department of Labor, Office of the Solicitor, 525 Griffin Street, Suite 501, 

Dallas, TX 75202, davila.tina@dol.gov 

Andy Carson, Cactus Canyon Quarries Inc., 7232 County Road 120, Marble Falls, TX 78654, 

acarsonmarblefalls@aol.com

6 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.