**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICE OF THE CHIEF ADMINISTRATIVELAW JUDGE

721 19th ST.SUITE 443

DENVER, CO 80202-2500

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

 

 

** **

**DECISION ANDORDER**

 

Appearances:              MariaC. Rich-DoByns, CLR, U.S. Department of Labor, MSHA, 1100 Commerce Street, Room462, Dallas, TX 75242

 

                                    MicahFlippen, Billy Cooper Stone Co., Inc., P.O. Box 678, Jarrell, TX 76537

 

Before:                                    Judge Simonton 

 
    - INTRODUCTION

** **

This case is before me on apetition for assessment of civil penalty filed by the Secretary of Labor,acting through the Mine Safety and Health Administration, against Billy CooperStone Co., Inc., (“Cooper Stone” or “Respondent”), pursuant to the Federal MineSafety 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 penaltyof $1,757.00. 

 

The parties presented testimony anddocumentary evidence regarding the citation at issue at a virtual hearing held onNovember 15, 2023. MSHA Inspector Jason Hoermann testified for the Secretary. BillyCooper Stone Co., Inc., owner Micah Flippen and employee Dan Wilson testifiedfor the Respondent. After fully considering the testimony and evidence presentedat hearing and the parties’ post-hearing briefs, I **AFFIRM**Citation Nos. 9741862and 9741863, as modified herein.

 

 
    - STIPULATIONS OF FACT

At hearing, the parties agreed tothe following stipulations:

 
    - Billy Cooper Stone Co., Inc., at all times relevant to     these proceedings, engaged in mining activities and operations at the Cooper     Stone Mine (Mine I.D. 41-03401) (“Cooper Stone”) in Williamston County,     Texas.

 
    - Billy Cooper Stone Co., Inc., is subject to the     jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.     §§  et seq.  (the “Mine Act”).

 
    - Billy Cooper Stone Co., Inc.’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 Billy Cooper Stone Co., Inc., 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. 9741859     and agrees to pay the assessed penalty of $905.00.

 
    - The Respondent agrees to withdraw contest of Citation No.     9741860 and agrees to pay the assessed penalty of $905.00.

 
    - The Respondent agrees to withdraw contest of Citation No.     9741861 and agrees to pay the assessed penalty of $905.00.

 
    - The Parties agree that Citation No. 9741864 be modified     from “Fatal” injury to “Permanently Disabling”, and the penalty be modified     from $905.00 to $407.00. For support of this modification, the Respondent     asserts that the expected injury would not be as serious as alleged; the     welder does not produce a high voltage. The Secretary under these specific     circumstances agrees that the expected injury is more appropriately     described as “Permanently Disabling.”

 
    - The moving machine parts described in Citation No. 9741862     are required to be guarded to protect persons from contact per 30 C.F.R. §     56.14107(a). 

 
    - The area described in Citation No. 9741863 is a roadway,     over which vehicular traffic may travel.

 
    - The area described in Citation No. 9741863 is within the     property boundaries of Cooper Stone, LLC, 3786 FM 487, Jarrell, Texas     76537.

 
    - Cooper Stone abated Citation No. 9741863 by placing berms     along the roadway.

 

Tr. 6.

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**                  III.        ****FINDINGSOF FACT AND SUMMARY OF TESTIMONY**

** **

Billy Cooper StoneCo., Inc., operates the Cooper Stone Mine, a dimensional stone mine located in WilliamstonCounty, Texas. Tr. 13, 18-19; Jt. Stip. 1. On April 19, 2023, MSHA InspectorJason Hoermann arrived at the mine to conduct a regular EO-1 inspection. Tr. 21.While inspecting the site, he was accompanied by two members of mine management,Dan Trejo and Dan Wilson. Tr. 23. 

 

While inspectingthe rock chopper area, Hoermann issued a citation for a splitter that did nothave the proper guards. Tr. 34; Ex. S-1-1. Hoermann testified at hearing thatthe lack of guards on the machine presented an entanglement hazard. Tr. 36. Whilehe could not recall at hearing whether he determined if the splitter was lockedout or not, he stated that he would generally make a note during his inspectionprocess if a piece of machinery was locked out. Tr. 40-41. His notes from thisinspection did not state that the machine was locked out at the time he issuedthe citation. Tr. 41; Ex. S-3-2. Concerning the splitter’s condition, rock waslying on the belt, dirt debris was located on top of a catch table, and ahammer and gloves that are typically used to clean off the machine were nearby.Tr. 41-42; Ex. S-1-4, S-1-5, S-1-6. No guards were lying in the area or installedon the machine and there were no signs of repair. Tr. 42-43. Hoermann testifiedthat he would have issued the citation regardless of whether the splitter waslocked out or not because this evidence indicated that it had been used in acondition without guards, exposing miners to a hazard. Tr. 41-43, 80. 

 

Dan Wilson, one ofthe members of mine management who accompanied Inspector Hoermann on April 19,2023, testified for the Respondent. He testified that the splitter had not beenin use on the day of the inspection, nor was he aware of its use in the 70 daysprior to that when he started his employment with Cooper Stone. Tr. 128-29. Hedid not check on the day of the inspection if the splitter was tagged out or notbut stated that the splitter had been de-energized. Tr. 132-33. He alsotestified that it is common practice for employees to lay equipment downwherever there is space when it is not needed, as an explanation for the toolslocated in the splitter’s vicinity. Tr. 131-32. Micah Flippen, owner of CooperStone, also testified that it was normal for employees to lay tools and otherequipment “anywhere they wish[ed]” and that the company made every effort toensure the machine was de-energized. Tr. 165-66. To demonstrate that the machinehad been locked out at the time of the citation, the Respondent submitted aphotograph that could not be authenticated by Dan Wilson, who was present onthe day of the inspection. Tr. 146-47; R-1. 

 

When traveling onroads to inspect another area of the mine, Hoermann issued a citation for a missingberm on a 40-foot section of roadway. Tr. 50. The road appeared to be heavily traveledwith equipment tracks and was narrow at only fifteen feet with an eight-footdrop-off leading to a pond. Tr. 51, 55-56. The inspector determined that this combinationof conditions created a rollover hazard for vehicles traveling along the road.Tr. 57. Inspector Hoermann did not observe machinery operating on the road ormining equipment in the area but noted that there were signs that the area hadbeen mined for dimensional stone, as evidenced by Vermeer saw cuts. Tr. 94-95,109. He also testified that the area was moist where the berm had sloughed off.Tr. 95. Cooper Stone promptly terminated the violation by replacing the missingberm with blocks. Tr. 61-62. 

 

Concerning theownership of the road, Hoermann determined the road belonged to Cooper Stonebecause the road connected into a network of other roads and there was no signageor other indicators that demonstrated ownership by an entity other than CooperStone. Tr. 60-61. He also stated that if a mine’s employees are traveling in anarea, it is the mine’s responsibility to correct any hazard an employee may beexposed to. Tr. 84. The Respondent presented evidence that the road was underthe control of Heartland Quarries, a separate entity that leased the road from CooperStone, and asserted that Heartland was responsible for its maintenance. Tr. 136-39,169-70, Ex. R-2, R-5. Mine employee Dan Wilson testified that HeartlandQuarries had created new roads and manipulated roads that had been used by CooperStone in the past at its own discretion. Tr. 138-39. He admitted that the roadwhere the citation was issued had been used by Cooper Stone in the past, butthat it was not a normal travel way for Cooper Stone employees. Tr. 154-56,161. Micah Flippen testified further that Heartland Quarries was in the processof stripping the area and had been manipulating the road and that Cooper Stonewas not managing either the berm or the road at the time of the citation. Tr.166, 169. Further, he testified that the largest piece of equipment owned by CooperStone is a “skid steer that is maybe six feet wide” and that they would notbuild a road that was so much wider than their equipment. Tr. 167. He alsostated that rain had occurred in the area recently, explaining the moist groundthat the inspector observed at the location of the citation, and that it wasprobable that the berm had sloughed off due to this recent rain. Tr. 169.

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**                                                        IV.        ****DISPOSITION**

 

**A.   ****Citation No. 9741862**

 

During hisinspection on April 19, 2023, Hoermann issued 104(a) Citation No. 9741862,which alleged:

 

The head pulley for the discharge belt andthe chopper chains were not guarded on the No. 3 Hydrasplit Chopper. The headpulley guards were missing[,] and the chain guard was lying on the ground. Thiscondition exposes miners using the chopper to an entanglement hazard resultingin serious injuries. 

 

Ex. S-1-1; Tr. 35-36.

 

Hoermann designated the citation asa non-significant and substantial violation of 30C.F.R. § 56.14107(a) that was unlikely to cause an injury thatcould reasonably be expected to be “permanently disabling,” would affect oneminer, and was caused by Respondent’s moderate negligence. Ex. S-1-1. 

 

**1.    ****Fact of Violation**

 

The Commission haslong held that “[i]n an enforcement action before the Commission, the Secretarybears 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 burden of showing something by a “preponderance of the evidence,”the most common standard in civil law and the standard applicable here, simplyrequires the trier of fact “to believe that the existence of a fact is moreprobable than its nonexistence.” *RAG Cumberland Res. Corp.*, 22 FMSHRC 1066,1070 (Sept. 2000); *Garden Creek Pocahontas Co.*, 11 FMSHRC 2148, 2152(Nov. 1989). 

 

30 C.F.R. § 56.14107(a)statesthat “[m]oving machine parts shall be guarded to protect persons fromcontacting gears, sprockets, chains, drive, head, tail, and takeup pulleys,flywheels, couplings, shafts, fan blades, and similar moving parts that cancause injury.” 

 

            The Secretary asserts that it isundisputed by both parties that the machine did not have proper guards at the timeof the citation and that there was no indication of ongoing repair.Sec’y Br. at 10-11.Further, the inspector testified that there was substantial evidence that the machinehad been used without guards and that he would have issued the citation anywayregardless of whether the splitter was properly locked out. Tr. 41-43. CooperStone contends that the machine was in fact locked out and tagged out at thetime the citation was issued but failed to present any testimonial evidence tothat effect. Resp Br. at 1-2. While the Respondent submitted a photograph thatappeared to show that the machine was locked and tagged out, this photographcould not be authenticated at hearing. Especially critical is the failure toestablish when the splitter was locked and tagged out. Therefore, I cannotplace much evidentiary weight on the photograph. Tr. 146-47; Ex. R-1. I doplace weight on and credit the inspector’s testimony that, even had thesplitter been locked and tagged out, he would have issued the citation given theevidence it had been used without the presence of the required guards. Accordingly,I find that the Secretary has presented sufficient evidence to show that CooperStone violated 30 C.F.R. § 56.14107(a).

 

**2.    ****Gravity**

 

Hoermann designated the citation asunlikely to cause an injury that could be reasonably expected to result in apermanently disabling injury. Ex. S-1-1. He testified at hearing that he selected“unlikely” because the machine was not in use at the time of his inspection andthe machine was a spare. Tr. 43. He selected permanently disabling because the pulleylocated on the machine could grab loose clothing or a hand, leading to crushinginjuries and possible amputation. Tr. 43-44. Because the splitter was not inimmediate use, it was unlikely to cause injury, so Hoermann marked the gravityas not significant and substantial. Tr. 44. Hoermann also testified that oneperson would be affected since one person would be injured by the head pulleyat a time. Tr. 44. Respondent did not contest the gravity designations for thisviolation, and I find the designations made by the inspector to be appropriate.

**3.    ****Negligence**

Under the Mine Act, operators are heldto a high standard of care, and “must be on the alert for conditions andpractices in the mine that affect the safety or health of miners and to takesteps 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 exhibitsthe absence of the slightest degree of care, high negligence as actual or constructiveknowledge of the violative condition without mitigating circumstances; moderatenegligence as actual or constructive knowledge of the violative condition withmitigating circumstances; and low negligence as actual or constructiveknowledge of the violative condition with considerable mitigating circumstances.30 C.F.R. § 100.3: Table X.

 

Hoermann marked the violation as moderatenegligence because the violation was visible and it was obvious that the machinewas unguarded, and because the operator had been cited in the past “for anotherguarding violation.” Tr. 44-45. At the time of this citation, management statedthat they did not know that the cited machine was unguarded, and nevermentioned that the machine was locked out or was down for repairs during theinspection. Tr. 45-46. Hoermann testified that the operator should have beenaware that machine parts should be guarded, but the Assessed Violation HistoryReport does not indicate any such prior machine related guarding violations.Tr. 45. Ex. S-4-1. Because there is no evidence of the operator’s previous historyregarding such guarding violations, I lower the negligence from moderate tolow. 

 

**B.   ****Citation No.9741863**

 

During hisinspection on April 19, 2023, Hoermann issued 104(a) Citation No. 9741863,which alleged:

 

The roadway going to the upper bench atthe main pit was missing a 40 ft section of berm. The roadway had an 8 ft dropoff on the North side and tire tracks were observed within 2 ft from the edge.The roadway is used by mobile equipment to move blocks from the pit to the sawarea. This condition exposes equipment operators to a [roll-over] hazardresulting in serious injuries. 

 

Ex. S-2-1; Tr. 55-56.

 

Hoermann designated the citation asa significant and substantial violation of 30 C.F.R. § 56.9300(a) that was reasonably likely to cause an injury thatcould reasonably be expected to result in “lost workdays or restricted duty,” would affectone miner, and was caused by Respondent’s moderate negligence. Ex. S-2-1. 

** **

**1.    ****Fact of Violation**

 

30 C.F.R. § 56.9300(a) providesthat “[b]erms or guardrails shall be provided and maintained on the banks ofroadways where a drop-off exists of sufficient grade or depth to cause avehicle to overturn or endanger persons in equipment.” 

 

The Secretary argues that CooperStone violated this standard by failing to have a berm on a narrow road with aneight-foot drop-off. Owner operator Flippen testified that the road was not underRespondent’s control, and that the area was not actively being mined by CooperStone. Instead, the road was being controlled and manipulated by Cooper Stone’s,lessee, Heartland Quarries. I find that the ownership of the road in thismatter is irrelevant to the issuance of a citation, because if a mine’semployees are traveling on a road, per inspector Hoermann’s credited testimony itis that mine’s duty to ensure that the road is in compliance with all safetyregulations. Tr. 84. I also note the parties stipulated to the fact that theroad in question is within the property boundaries of Cooper Stone. Jt. Stip.15. It is also undisputed that the road in question was missing a berm at thetime of the citation. I affirm the finding that there was a violation of 30C.F.R. § 56.9300(a).

 

**2.    ****Gravity andS&S**

 

Hoermann designated the citation asreasonably likely to cause an injury that could reasonably be expected toresult in “lost workdays or restricted duty.” Ex. S-2-1. He explained athearing that the road was narrow and very compacted, which indicated heavy use.Tr. 57. He selected “lost workdays and restricted duty because the equipmentwould likely roll over on its side, leading to broken bones, sprains, contusions,and cuts. Tr. 57-58. The Respondent did not contest the gravity of the expectedinjury. I affirm the finding that the injury would likely result in lost workdaysor restricted duty to one miner.

The citation was also designated assignificant and substantial. To establish that a violation is significant andsubstantial, the Secretary of Labor must prove: (1) the underlying violation ofa mandatory safety standard; (2) the violation was reasonably likely to causethe occurrence of the discrete safety hazard against which the standard isdirected; (3) the occurrence of that hazard would be reasonably likely to causean injury; and (4) there would be a reasonable likelihood that the injury inquestion would be of a reasonably serious nature. *Peabody Midwest Mining,LLC*, 42 FMSHRC 379, 383 (June 2020). The Commission has explained that “theproper focus of the second step of the [S&S] test [is] the likelihood ofthe occurrence of the hazard the cited standard is designed to prevent.” *NewtownEnergy, Inc*., 38 FMSHRC 2033, 2037 n.8 (Aug. 2016). 

 

The Secretary has established a violationand therefore satisfies step 1. But the Secretary has failed to satisfy step 2because she has not shown that the occurrence of a roll-over hazard isreasonably likely to occur to one of Respondent’s employees. There are too many intervening factors to establish thatthe rollover hazard was reasonably likely, particularly concerning the lack ofevidence demonstrating Respondent’s use of the road. At the hearing, theinspector testified that he did not see equipment working in the area and thatmine management were unaware of the berm’s condition. Tr. 59, 109. Further,Respondent presented testimony at trial that indicates that the road was not inuse at the time of the inspection. Tr. 166-69. Additionally, Cooper Stonecontends that their equipment is significantly narrower than the road itself.Tr. 167. The danger to Respondent’s employees presented by the missingberm remained relatively remote given these facts. Accordingly, the bermviolation was not S&S and I lower the likelihood of injury to unlikely. 

**3.    ****Negligence**

 

Hoermann determined that the violationwas a result of Cooper Stone’s moderate negligence. It was visible and obviousthat the 40-foot section of berm was missing, but the mitigating circumstancesof nobody using the road at the time of inspection and the lack of reportingabout the situation decreased the negligence to moderate. Tr. 59. Further, theinspector determined that the road belonged to Cooper Stone because the road tiedinto the network of roads leading to the pit and there was no signage or barriersto indicate the road belonged to another entity. Tr. 60.

 

            As stated above, it is the mine’s duty toensure compliance with safety regulations if their employees are traveling on aroad, regardless of the actual ownership of the road. However, given the considerablemitigating circumstances and the low frequency that Cooper Stone was using theroad at the time of the citation, I reduce Cooper Stone’s negligence from moderateto low for this citation. 

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**                                                                V.        ****PENALTY**

** **

It is wellestablished that Commission administrative law judges have the authority toassess civil penalties de novo for violations of the Mine Act*. SellersburgStone Company*, 5 FMSHRC 287, 291 (Mar. 1983). The Act requires that inassessing civil monetary penalties, the Commission ALJ shall consider the sixstatutory penalty criteria:

 

(1) the operator’s history of previous violations, (2)the appropriateness of such penalty to the size of the business of the operatorcharged, (3) whether the operator was negligent, (4) the effect on theoperator’s ability to continue in business, (5) the gravity of the violation,and (6) the demonstrated good faith of the person charged in attempting toachieve rapid compliance after notification of a violation.

 

30 U.S.C. §820(i).

 

            For CitationNo. 9741862, the Secretary proposed a regularly assessed penalty of $407.00. Asdiscussed above, there is no evidence aside from the inspector’s unsupported testimonyregarding the operator’s prior machine guarding violation history.It is undisputed that Cooper Stone is a smalloperator with approximately 30 employees. Tr. 21.Theparties also stipulated that the penalty will not affect Cooper Stone’s abilityto continue in business. Jt. Stip. 8. As discussed above, I find that this non-S&Sviolation was unlikely to result in an injury causing permanently disablinginjuries and was the result of Cooper Stone’s low negligence. Finally, CooperStone demonstrated good faith by quickly terminating the citation. In light ofthese considerations, I find that a penalty of $350.00 is appropriate. 

 

            ForCitation No. 9741863, the Secretary has proposed a regularly assessed penaltyof $1,350.00. The mine operator has had berm violations in the past. Ex. S-4-1.The parties stipulated that the penalty will not affect Cooper Stone’s abilityto continue in business. Jt. Stip. 8. As discussed above, I find that this is anon-S&S violation that was unlikely to result in an injury causing lostworkdays or restricted duty and was the result of Cooper Stone’s low negligence.Finally, Cooper Stone Co., Inc., demonstrated good faith by quickly remedyingthe citation, even under the belief that they were not responsible for themissing berm. I have considered the representations and documentation submittedand conclude that a penalty of $600.00 is appropriate under the criteria setforth in Section 110(i) of the Act.

 

 
    - ORDER

 

It is hereby **ORDERED**thatCitation No. 9741862 is **AFFIRMED**as modified to reduce the negligence tolow and that Citation No. 9741863 is **AFFIRMED**, as modified to reduce thelikelihood of injury or illness to “Unlikely”, reduce the negligence to low,and to remove the S&S designation. Billy Cooper Stone Co., Inc, is **ORDERED**to pay the Secretary the total sum of **$950.00** within 40 days of thisorder.[2]

 

 

 

 

                                                                                    /s/David P. Simonton

David P. Simonton

Administrative Law Judge

 

 

 

 

Distribution: (Electronic and Certified mail) 

 

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

 

Micah H. Flippen, Owner, Cooper Stone LLC, P.O. Box 678,Jarrell, TX 76537, micah.flippen@cooperstone.com

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

[2]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 ofTreasury, Mine Safety and Health Administration

P.O. Box 790390, St. Louis, MO63179-0390. Please include Docket and A.C. Numbers.