**FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

 

 
| SECRETARY OF  LABOR 

 MINE SAFETY AND  HEALTH

 ADMINISTRATION  (MSHA),

                Petitioner,

 

                        v.

 

IMI AGGREGATES,  LLC,

                Respondent.                                                        |   |   | CIVIL  PENALTY PROCEEDING

 

    Docket No.  LAKE 2021-0122

    A.C. No.  12-02430-533325

 

    Mine: Fall  Creek Sand & Gravel          |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**DECISION AND ORDER**

 

Appearances:              LydiaJ. Faklis, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago,Illinois, for the Petitioner, 

 

Brad Wales, SafetyManager, IMI Aggregates, LLC, Greenfield, Indiana, for the Respondent, 

 

Donna V. Pryor,Esq., Husch Blackwell LLP, Denver, Colorado, for the Respondent.[1]

 

Before:                                   Judge Sullivan

 

**                                                         I.        ****INTRODUCTION**

 

This case isbefore me upon a Petition for the Assessment of Civil Penalty filed by theSecretary of Labor (“Secretary”), on behalf of the Mine Safety and Health Administration(“MSHA”), against IMI Aggregates, LLC (“IMI” or “Respondent”), pursuant tosection 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),30 U.S.C. § 815(d). The Secretary seeks civil penalties totaling $298.00 fortwo alleged violations of mandatory safety standards.

 

The partiespresented testimony and documentary evidence during a virtual hearing via Zoomfor Government on February 23, 2022. MSHA Inspector Jeffrey Cook testified onbehalf of the Secretary and IMI maintenance employee Evan Young testified onbehalf of the Respondent. Both parties subsequently filed post-hearing briefson April 6, 2022.[2]

**                   II.        ****GENERALFACTUAL AND PROCEDURAL BACKGROUND**

 

IMI owns andoperates crushed stone, sand, and gravel mines throughout Indiana, includingthe Fall Creek Sand & Gravel Mine (“Fall Creek”) in Fortville. On March 3,2021, MSHA Inspector Jeffrey Cook conducted an EO-1 regular inspection of Fall Creek.He had previously inspected Fall Creek, though it had been several years sinceit was part of his assigned rotation of mines. Tr. 20, 60-61.

 

Inspector Cookbegan his inspection at Fall Creek’s meeting shop area and continued to thehaul roads, conveyors, plant, mobile equipment, and review of the mine’s paperwork.During his inspection, Inspector Cook issued two citations. Tr. 20-22. Thefirst, Citation No. 9443972, was issued because a stretch of roadway lacked aberm of at least mid-axle height of the largest vehicle that traveled on it. Thisalleged violation of 30 C.F.R. § 56.9300(b) wasdesignated as significant and substantial (S&S). To abate the citation, IMIbuilt a berm approximately 125 feet long on the edge of the relevant roadway beforethe end of the day. Tr. 33-34; Sec’y Ex. 3, 5.

 

The other issued citation,No. 9443973, was for inadequate guarding of a tail pulley and feed drive chain,in violation of 30 C.F.R.§ 56.14107(a). Tr.21-22, Sec’y Ex. 11, at 1. During his follow-up inspection on March 15, 2021, InspectorCook issued Order No. 9443990 for IMI’s failure to abate the original citation,in violation of section 104(b) of the Mine Act, 30 U.S.C. § 814(b). OnMarch 29, MSHA Inspector Barry Hayes terminated both the citation and orderafter concluding that IMI had abated the violation by placing appropriateguards on the tail pulley and feed drive chain. Tr. 59.

 

IMI contested the twopenalties that MSHA assessed in connection with the violations, $159.00 and$139.00 respectively, and this case was docketed before the Commission. Atissue are the two alleged violations and the associated findings, includingwhether the first violation was S&S, and if one or more of the violationsis upheld, the penalty or penalties to be assessed.

 

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

** **

**A.   ****Citation No.9443972 for Alleged Violation of Section 56.9300**

** **

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

** **

At Fall Creek, mobileequipment travels between the mine shop and either the plant or hopper on aparticular roadway. At hearing, Inspector Cook testified that on the day ofinspection, he saw pickup trucks, service trucks, and a Caterpillar 980G wheelloader travel on the roadway. The Caterpillar 980G wheel loader, the largestvehicle to utilize the roadway, was described as a “rubber-tired piece ofequipment . . . used to move sand and dirt and rock . . . to load into thehopper to process.” Tr. 22, 24-25. Inspector Cook also noted that the Caterpillar980G was not carrying a load and was, in his estimation, moving five to tenmiles per hour. Tr. 61-62.

 

While on theroadway, Inspector Cook noticed a section that he suspected should have a bermat its edge, given his view of the drop-off from the edge. Tr. 22; Sec’y Ex. 1(providing a photo of section’s edge taken by inspector). At hearing, InspectorCook defined a “berm” as “an earthen structure that helps redirect equipmentaway from an overturn hazard.” Tr. 23. He subsequently issued Citation No.9443972, alleging that IMI violated section 56.9300(b), in that:

 

TheMain Shop elevated roadway was not bermed to mid-axle height of the mobileequipment (Caterpillar 980G) that travels the roadway. The area not adequatelybermed was approximately 125 feet long with a drop[-]off of approximately 32inches. This condition exposes miners to lost workday type injuries. There wereseveral tire tracks along the edge of the unbermed roadway at the time of theinspection. Mine and [m]ine management have continuous access to this conditiondaily under continued mining operations.

 

Sec’y Ex. 5.

 

In designating thecitation as S&S, Inspector Cook indicated that the Caterpillar 980G’s travelalong the edge of the unbermed roadway was reasonably likely to cause an injurythat could be reasonably expected to result in lost workdays or restricted dutyof one miner, the equipment’s operator. Sec’y Ex. 11, at 1. Moreover, InspectorCook categorized the violation as resulting from IMI’s moderate negligence. *Id.*

 

**2.    ****Analysis**

 

Section 56.9300provides in relevant part:

 

(a)Berms or guardrails shall be provided and maintained on the banks of roadwayswhere a drop-off exists of sufficient grade or depth to cause a vehicle tooverturn or endanger persons in equipment.

(b)Berms or guardrails shall be at least mid-axle height of the largestself-propelled mobile equipment which usually travels the roadway.

 

30 C.F.R. § 56.9300. “Berm” is defined to “mean[] a pile ormound of material along an elevated roadway capable of moderating or limitingthe force of a vehicle in order to impede the vehicle’s passage over the bankof the roadway.” 30 C.F.R. § 56.2.

 

It is undisputedthat the cited section of roadway did not have a berm, and, therefore, itlogically follows that a berm greater than or equal to the 34-inch mid-axleheight of the Caterpillar 980G was not present either.[3] Tr. 82; Sec’yEx. 1.

 

The Secretarycontends that the drop-off from the roadway was of a sufficient depth or grade undersection 56.9300(a) for the requirements of section 56.9300(b) to apply. Sec’yBr. 14-15. In contrast, IMI maintains that a berm was *not*required alongthe section of roadway in question because, from its edge, there was not “adrop-off of sufficient grade or depth to cause” any vehicle that traveled overit, including the Caterpillar 980G, “to overturn or endanger persons inequipment.” In its post-hearing brief, IMI further argued that the Secretary’sevidence submitted at hearing supporting the citation was insufficient toestablish that a berm was required under section 56.9300(a). Resp’t Br. 5.

 

In *LakeviewRock Prod., Inc.*, 33 FMSHRC 2885, 2989 (Dec. 2011), the Commission held thatan evidentiary hearing should decide any unresolved dispute over whether “adrop-off exist[ed] of sufficient grade or depth to cause a vehicle to overturnor endanger persons in equipment.” *Id.* Further, 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 defined the Secretary’s burden as apreponderance of the evidence, “which 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).

 

The evidence presentedon the cited section of roadway’s depth and grade of the drop-off, and thedanger it posed to vehicles operating on the roadway, is as follows. Athearing, Inspector Cook described the slope away from the edge as being “steep,”and the drop-off to be “fairly abrupt” before it “smooth[ed] out into a ditch”three to four feet away. Tr. 30-31, 68-69; Sec’y Ex. 1 (providing a picture of theedge, including the ditch). Inspector Cook explained that he positioned himselfover the edge of the road and, holding a tape measure vertically, “eyeballed”the depth of the ditch to be 32 inches at that point along the road. He attributedhis reluctance to go farther down the side due to the brush, muddy conditions,and his consequential inability to know what was in the ditch. Tr. 30-32, 62;Sec’y Ex. 1.1 & Resp’t Ex. 3.1 (including annotations to show where theinspector stood along the edge). To measure the length of the roadway, that hebelieved was subject to the drop-off, he “stepped off” 125 feet. Tr. 29-32, 62.

 

Inspector Cookalso testified to evidence of tire tracks in the mud along the edge (clearly shownin Sec’y Ex. 1), and how driving close to the edge of an inadequately bermedroad could cause a vehicle to fall off the road either in whole or in part. Heexplained that, once one or more of its wheels goes over the edge of the citedroad and onto a muddy slope of the observed depth and grade, a truck the sizeand design of the Caterpillar 980G may overturn. Tr. 36-39, 62-63.

 

Evan Young, amaintenance mechanic who has worked at Fall Creek for four years, accompaniedInspector Cook during the inspection. Tr. 81, 86. In his testimony, Youngestimated that only 40 to 50 feet of the roadway at issue had a drop-off fromits edge. Tr. 88-89. While Young confirmed that the inspector had attempted tomeasure the drop-off, he did not agree that it was 32 inches in depth. Tr. 82. Nothaving measured the drop-off himself, Young stated “if I had to guess, it wasroughly two feet.” He also described the area beyond the roadway’s edge as “notstraight up and down,” but rather “a slope.” Tr. 82-83. Additionally, Youngtestified that while it was possible for a Caterpillar 980G to overtravel theedge of the roadway, in his opinion, the vehicle would not “roll” over once on theslope. Tr. 79, 87.

I credit InspectorCook over Young on the question of whether a Caterpillar 980G would overturn inthis instance if it overtraveled the bermless side of IMI’s roadway, for a fewreasons. First, the inspector is significantly more experienced in thesematters than Young. At the time of hearing, Inspector Cook had approximatelyseven years of experience as a MSHA metal and nonmetal mine inspector inaddition to having worked 11 years for a coal mine operator earlier in hiscareer. Along with initial MSHA authorized representative training, InspectorCook has partaken in annual trainings as well. He testified to conductingapproximately 80 mine inspections per year, including regular inspections, spotinspections, health inspections, hazard inspections, among others. Tr. 18-20,60. With his background, Inspector Cook made at least some effort to measurethe drop-off alongside the cited section of IMI’s roadway. In contrast, Youngdisputed the measurement based strictly on his forced “guess” regarding thedepth of the drop-off. Tr. 30-32, 62, 82-83.

 

As far as thegrade and slope of the drop-off, the two witnesses’ accounts did notappreciably differ. While Young described the drop-off as not “straight up anddown by any means,” there is no record evidence that only such drop-offs couldresult in a vehicle overturning off a roadway’s edge. MSHA updated its safetystandards pertaining to loading, hauling, dumping, machinery, and equipment in1988, after an increase in machinery and equipment-related injuries. *See*Safety Standards for Loading, Hauling, and Dumping and Machinery and Equipmentat Metal and Nonmetal Mines, 53 Fed. Reg. 32496, 32500 (Aug. 25, 1988). Includedin the revised standards was an update to then-section 56/57.9022, now section56/57.9300, titled “Berms or guardrails.” By MSHA’s calculation, 90 fatalitieshad occurred across a 15-year period in instances in which a berm could haveminimized the seriousness of mine roadway accidents. The rule adopted imposedberm or guardrail requirements when the drop-off is “of a *sufficient*grade*or* depth” to result in a vehicle overturning or otherwise endangeringpersons in the vehicle. 30 C.F.R. § 56.9300(a) (emphases added).

 

Young’s opinionthat no vehicle, including the Caterpillar 980G, would roll over afterovertraveling the cited roadway section was based on his experience as both a mechanicand a miner. Tr. 83. However, he did not reference any specific experience of avehicle remaining upright in such an overtraveling scenario. In contrast,Inspector Cook testified to witnessing the aftermath of a vehicle overtravelinga road’s edge that lacked a berm. In that instance, he recounted that a truckwith an estimated 16-inch mid-axle height had overturned when it went off aroadway with a nine-inch drop-off. Tr. 37-38.

 

In arguing thatthe citation should be vacated, IMI cites *Knife River Corp., N.W.*, 32FMSHRC 912, 915-16 (July 2010) (ALJ), where a Commission Judge found that theSecretary did not prove that the drop-off at issue was of sufficient depth orgrade to lead to a vehicle overturning. Resp’t Br. at 6. Significantly, thatcase did not involve a standard mine roadway missing an adequate berm orguardrail, but rather an elevated scale on which vehicles would stop to beweighed. The question was whether, on the far side of the 9-inch high “rubrail”built into the scale at its edge, there was a drop-off of sufficient depth orgrade to result in a vehicle overturning in the event of overtravel.

 

In *Knife River*,**the Judge vacated the citation because the Secretary failed to provide asufficient explanation of what would occur in such an event—finding theSecretary’s testifying authority in the case to be “silent on informationregarding how the height or grade of the scales considering all relevantfactors such as their width, size of the trucks and the like would trigger”section 56.9300(a). *Id.* at 915. Given the lack of evidence of what wouldoccur to a truck had the rubrail not prevented it from going over the edge ofthe scale, the Judge refused to draw inferences on her own from the photographsof the scales that the Secretary introduced. *Id.* at 915-16.

 

Here, I havereviewed the photograph Inspector Cook took of the roadway section at issue. Sec’yEx. 1. As the inspector admitted, the photograph is not nearly as clear andaccurate as one would wish. Tr. 66. Shadows and brush somewhat obscure thedetails of the depth and grade of the drop-off. However, under thecircumstances, the photograph provides sufficient additional support forInspector Cook’s conclusion that there was a distinct risk that once aCaterpillar 980G’s wheel or wheels overtraveled the muddy edge of the roadway,the vehicle would overturn. The grade and depth of the roadside drop-off shownin the photograph is generally consistent with the inspector’s testimony on thesubject. Tr. 38-39.

 

Accordingly, I donot find that *Knife River*, a case involving an elevated scale, rubrail,and drop-off, anywhere near analogous to the muddy roadway and drop-offpresented in this case. The Secretary has carried his burden of proof withrespect to the violation of section 56.9300 and the citation is affirmed.[4]

 

**3.    ****S&Sand Gravity of the Violation**

 

Aviolation is S&S if, “based upon the particular facts surrounding theviolation, there exists a reasonable likelihood that the hazard contributed towill result in an injury or illness of a reasonably serious nature.” *MathiesCoal Co.*, 6 FMSHRC 1, 3-4 (Jan. 1984) (citing *Cement Div.,**Nat’lGypsum Co.*, 3 FMSHRC 822, 825 (Apr. 1981)). In *Mathies*, the fourelements or steps required for an S&S finding were expressed as follows:

 

(1) theunderlying violation of a mandatory safety standard; (2) a discrete safetyhazard -- that is, a measure of danger to safety -- contributed to by theviolation; (3) a reasonable likelihood that the hazard contributed to willresult in an injury; and (4) a reasonable likelihood that the injury inquestion will be of a reasonably serious nature.

 

*Id.* at 3-4 (footnoteomitted).

 

More recently, theCommission restated *Mathies* Step 2 in terms of finding that “theviolation was reasonably likely to cause the occurrence of the discrete safetyhazard against which the standard is directed.” *NewtownEnergy, Inc.*, 38 FMSHRC 2033, 2037 (Aug. 2016).[5] Notably,an S&S determination is based on the facts existing at the time of citationissuance and assumes normal mining operations will continue. *U.S. SteelMining Co.*, 6 FMSHRC 1573, 1574 (Jan. 1984); *Black Beauty Coal Co.*,34 FMSHRC 1733, 1740 (Aug. 2012) (“[t]he [S&S] evaluation is made inconsideration of the length of time that the violative [berm] condition existedprior to the citation and the time it would have existed if normal miningoperations had continued.”).

 

In itspost-hearing brief, IMI did not take separate issue with the S&Sdesignation. However, because IMI’s evidence was relevant to some of the *Mathies*elements, I will analyze whether the Secretary met his burden of proving that thesection 56.9300 violation is S&S.

 

**a.    *****Mathies*****Step 1 & Step 2**

 

Step 1of the Commission’s S&S analysis is satisfied above, as noted in myconclusion that the bermless section of IMI roadway constituted a violation. Asfor Step 2, the hazard posed by IMI’s failure to provide the berm—as requiredby the standard—is that a vehicle will overtravel the edge of the road, andbecome, in whole or part, subject to the 32-inch drop-off and slope down intothe immediately adjacent ditch. *See Black Beauty*, 34 FMSHRC at 1741 (notingthat MSHA berm standards anticipate danger of “loss of vehicle control near theedge of” an elevated roadway). As Inspector Cook explained, a berm maintainssafety by redirecting equipment back into the roadway in the event of theequipment operator “hav[ing] a health issue, [being] distracted, lots of thingscan happen.” Tr. 38.[6]

 

Athearing, IMI hardly disputed that, absent an adequate berm on the pertinentroadway section, a vehicle, including the Caterpillar 980G, could go off theroad. For example, Young admitted that any vehicle using that section of roadway“can drive off there, they could have drove off it . . . .” Furthermore, hespecifically agreed with the “possibility” that a Caterpillar 980G couldovertravel. Tr. 87.

 

In fact,the Secretary’s evidence raised the likelihood of vehicular overtravel beyond a“possibility” to a “reasonable likelihood.” Here, IMI’s operations included numerousvehicles using the road in question for two-way traffic each day, including theCaterpillar 980G, which Young estimated travels on the roadway four times aday. Tr. 24, 87-88. Significantly, this two-way traffic pattern apparentlynecessitated vehicular travel up to the very edge of the unbermed section ofroadway, as evidenced by Inspector Cook’s photograph of tire tracks. Tr. 36;Sec’y Ex. 1. Given this evidence, I conclude that over time, without a berm toprevent vehicular overtravel, such was bound to occur. *See LRock Indus.*,39 FMSHRC 1429, 1434 (July 2017) (ALJ) (finding that absent a berm,“overtravelling . . . was reasonably likely to occur, given that there wasfrequent traffic in the area and tire tracks relatively close to thedropoff.”).

 

As forthe consequences of a Caterpillar 980G falling off the roadway in such afashion, the berm standard, by its terms, goes much of the way towardsestablishing Step 2 of the *Mathies* analysis. A berm is only requiredunder section 56.9300(a) when overtravel could take a vehicle into a “drop-off . . . ofsufficient grade or depth to cause a vehicle to overturn or endanger persons inequipment.” I have already credited Inspector Cook over maintenancemechanic Young on the question of whether an IMI vehicle overtraveling the edgeof the pertinent roadway would result in a rollover, given the establishedslope and drop-off. Thus, Step 2 is satisfied as well.

 

**b.    *****Mathies*****Step 3 & Step4****

 

Athearing, there was a dispute over what injuries would likely occur in the eventof a rollover as well as the nature of the injuries. I thus examine whetherSteps 3 and 4 of the S&S test have been established.

 

Inspector Cook testifiedthat if a Caterpillar 980G were to overturn off a roadway, the miner-operatorcould expect to suffer cuts, contusions, sprains, and strains which may resultin lost workdays. Moreover, Inspector Cook categorized those injuries asserious in nature. Tr. 39. In contrast, Young disputed that overtravel would resultin a rollover and further contested that a rollover of “[Caterpillar 980G]loader or haul truck or that sort of stuff” would result in any injury to theequipment operator. He based his opinion on the “safety belts and all therollover protection” in the vehicle, as well as the roadway’s height. Tr. 89.

 

Inspector Cook wasnot as expansive in his explanation as he could have been regarding theconsequences of a vehicular rollover in this instance. *Cf. Acha Const.*,*LLC*, 38 FMSHRC 3025, 3032-33 (Dec. 2016) (ALJ) (detailing testimony oninjuries reasonably likely to result from lack of required berm). However,based on his much greater experience in these matters, including hisfamiliarity with the consequences of vehicular rollover, I credit him overYoung and find that there was both a reasonable likelihood that equipmentrollover would result in an injury and that there was a reasonable likelihoodthat an injury suffered would be of a reasonably serious nature. *See WolfRun Mining Co.*, 36 FMSHRC 1951, 1958-59 (Aug. 2014) (“not[ing] that aninspector’s judgment is an important element in an S&S determination” aspart of *Mathies* Step 3 and under Step 4 crediting inspector’s testimonyregarding the severity of injuries that had resulted to miner in a similarsituation); *see also Consol Pa. Coal Co.*, 43 FMSHRC at 149.

 

Moreover, eventhough a Caterpillar 980G may be equipped with rollover protection andseatbelts, redundant safety measures are not to be considered in determiningwhether a violation is S&S. *See**Cumberland Coal Res. v. FMSHRC*,717 F.3d 1020, 1029 (D.C. Cir. 2013); *Knox Creek Coal Corp. v. Sec’y ofLabor*, 811 F.3d 148, 162 (4th Cir. 2016); *Buck Creek, Inc. v. FMSHRC*,52 F.3d 133, 135 (7th Cir. 1995); *Brody Mining, LLC*, 37 FMSHRC 1687,1691 (Aug. 2015); *see, e.g.*,*Acha*, 38 FMSHRC at 3032 (determiningberm standard violation to be S&S after refusing to consider equipment’srollover protection and seatbelts because they were redundant safety measures).

 

Accordingly, theSecretary has satisfied all four elements of the *Mathies* test. Therefore,I conclude that Citation No. 9443972 was appropriately designated as S&S. Forthe same reasons, I affirm Inspector Cook’s gravity designation as reasonablylikely to result in lost workdays/restricted duty for the equipment operator.

 

**4.    ****Negligence**

 

The Commission“may evaluate negligence from the starting point of a traditional negligenceanalysis.” *Brody Mining*, 37 FMSHRC at 1702. This analysis asks whetheran operator has met “the requisite standard of care—a standard of care that ishigh under the Mine Act.” *Id.* Considerations include “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 regulations.” *Id.*; *see also A.H. Smith Stone Co.*,5 FMSHRC 13, 15 (Jan. 1983). The Commission has explained that an ALJ “isnot limited to an evaluation of allegedly ‘mitigating’ circumstances” andshould consider the “totality of the circumstances holistically.” *Id.; seealso* 30 C.F.R. § 100.3(d) (stating that operators 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.”).

 

As previouslymentioned, various types of equipment traveled the roadway multiple times aday, every day at Fall Creek. Tr. 40, 88. The Caterpillar 980G, specifically, traveledthe roadway at least four times a day. Tr. 88. Moreover, the lack of a berm wasobvious, as seen in Inspector Cook’s photographs of the roadway. *See*Sec’yEx. 1, 1.1. Inspector Cook also documented in his notes that Brad Wales, IMI’ssafety manager, stated that Young oversaw the area and should have recognizedthe hazard associated with not having a berm. Sec’y Ex. 6 (“Safety mgr. statedEvan was in charge of the area and should have recognized the hazard.”); *seealso* Tr. 40 (“[Wales] said that [foreman] should have recognized thehazard.”). Given that the roadway lacked a berm for at least 45 feet and IMI’sown acknowledgement that it should have recognized the hazard, I affirm thelevel of negligence as moderate.

 

**B.   ****Citation No. 9443973for Alleged Violation of Section 56.14107(a)**

 

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

 

Continuing hisinspection, Cook observed a hopper discharge conveyor (*hereinafter*“conveyor”), which he described is used to take “material from the hopper . . .to another part of the mine, to the plant.” Tr. 42. Inspector Cook noted thatthe conveyor beneath the hopper was surrounded by cattle gates, one on theleft-hand side, one on the right-hand side, and one on the front side. On oneof the gates was a sign that said, “Danger Falling Material” and a padlock. Tr.41, 52-53; Sec’y Ex. 7, 7.1; Jt. Stip. 18.

 

Below the conveyorwas a feed drive chain and tail pulley. It is undisputed that neither wasindividually guarded. Tr. 44, 91; Sec’y Ex. 7.1, 9.1, 10.1. At hearing, Youngtestified that there are 20 to 30 other tail pulleys and like machinerycomponents at Fall Creek, all of which were individually guarded, and had beensince he started working there. Tr. 92-94.

 

Due to the lack ofindividual guarding, Inspector Cook issued another 104(a) Citation, No.9443973, which alleged:

** **

Thetail pulley on the Hopper Discharge conveyor under the feed hopper was notguarded to prevent contact. The drive chain for the feed conveyor under thehopper was not guarded to prevent contact. There were cattle gates placedaround the base of the hopper structure indicating area guarding but did notprevent access to the rotating machine parts. This condition exposes miners topermanently disabling injury hazards.

 

Sec’y Ex. 11.

 

Inspector Cookdesignated the citation as a non-S&S violation of 30 C.F.R. § 56.14107(a)that was unlikely to cause an injury but could be reasonably expected to resultin a permanently disabling injury had one occurred, which would affect oneminer, and was a result of IMI’s moderate negligence. Sec’y Ex. 11. 

 

**2.    ****Analysis**

 

Section56.14017(a) provides that “[m]oving machine parts shall be guarded to protectpersons from contacting gears, sprockets, chains, drive, head, tail, and takeuppulleys, flywheels, couplings, shafts, fan blades, and similar moving partsthat can cause injury.” 30 C.F.R. § 56.14017(a). It is undisputed thatboth the feed drive chain and tail pulley constitute “moving machine parts”under section 56.14107(a). *See Moline Consumers Co.*, 15 FMSHRC 1954,1959-60 (Sept. 1993) (ALJ) (“standard is obviously intended to protectindividuals from moving component parts rather than the machine itself.”). 

 

In adopting section56.14107(a), MSHA explained that it revised existing standards to “clarif[y]that the objective is to prevent contact with [hazardous moving] machine parts[,]”and that “[t]he guard must enclose the moving parts to the extent necessary toachieve this objective.” Safety Standards for Loading, Hauling, and Dumping andMachinery and Equipment at Metal and Nonmetal Mines, 53 Fed. Reg. 32496, 32509(Aug. 25, 1988). Consequently, a Court interpreting the standard has held that“[b]oth the regulation and [this] explanation clearly require guards aroundmoving parts,” and “[w]hen the meaning of a regulatory provision is clear onits face, the regulation must be enforced in accordance with its plain meaning.”*Mainline Rock & Ballast, Inc., v. Sec’y of Labor*, 693 F.3d 1181,1185 (10th Cir. 2012) (quoting *Walker Stone Co. v. Sec’y of Labor*, 156F.3d 1076, 1080 (10th Cir. 1998)).

 

To prove aviolation of section 56.14107(a), the Secretary must show that an unguardedmoving machine part “can cause injury.” The Commission has interpreted asimilar guarding standard to require proof of “a reasonable possibility ofcontact and injury.” *Thompson Bros. Coal Co.*, 6 FMSHRC 2094, 2096 (Sept.1984); *see also**Nelson Quarries, Inc.*, 36 FMSRHC 3143, 3146 (Dec.2014) (ALJ) (interpreting section 56.14107(a) to require proof of reasonablepossibility of injury). Here, there is no dispute that contact with either thetail pulley or the drive chain while in motion can cause injury.[7]

 

At issue iswhether the feed drive chain and tail pulley were properly guarded to preventinjury as required by section 56.14107(a). The Secretary contends that both thefeed drive chain and tail pulley were not properly guarded because, even withthe cattle gates and padlock, the moving machine parts were still accessible tominers who may need to enter the hazardous area near the exposed moving machineparts. Sec’y Prehrg. Rep. 5; Sec’y Br. 24-27. IMI, on the other hand, arguesthat it did not violate section 56.14107(a) because the tail pulley wassufficiently guarded by location, miners were unable to access the area withoutpermission, and would not do so when the machinery was operating. Resp’tPrehrg. Rep. 4; Resp’t Br. 7-9.

 

In decidingwhether to affirm or vacate the citation, I must first address whether IMIminers could complete their duties while remaining outside the cattle gates,thus establishing the cattle gates as adequate guarding, or whether there wasany need for miners to get inside the gates and closer to the conveyor and its otherwiseunguarded feed drive chain and tail pulley. Regarding a miner’s need to enterthe enclosure to conduct maintenance, neither Inspector Cook nor Young wereclear in their testimony. In response to my question on how often a miner wouldgo inside the cattle gates, Young stated flatly “[n]ever.” However, he thenqualified that answer with his explanation that “[a]ll of our grease lines andeverything . . . they’re routed and attached to the cattle panel on theleft-hand side. . . . [T]hat you can access by the cattle gate.” Tr. 94.

Inspector Cookinitially testified that a miner would need to enter the cattle gates to beclose to the tail pulley and feed drive chain to grease and otherwise maintainthem. Tr. 46-49; Sec’y Ex. 8.1, 9.1. He later stated, however, that contactwith the moving machine parts was unlikely, “[b]cause of the extended greaselines and the cattle gates being there,” and that he had seen no footprintevidence of miners having been there. Tr. 55. He nevertheless continued tomaintain that a miner could enter the enclosure to conduct maintenance on themoving machine parts. Tr. 56.

 

However, I neednot resolve the issue of whether maintaining the machinery would evernecessitate entry into the enclosure, because Young conceded that miners wouldat a minimum need to enter it for another maintenance responsibility—to cleanup falling debris from the conveyor. Tr. 95; Sec’y Ex. 7.1 (providing photo ofcattle gates that includes “Danger Falling Material” signage). Contact with unguardedmoving machine parts while cleaning around the machinery has been recognized asa danger that guarding standards are designed to protect against. *See, e.g.*,*Dix River Stone Inc.*, 29 FMSHRC 186, 202 (Sept. 2016) (ALJ). Significantly,Inspector Cook explicitly testified to his familiarity with a fatality thatresulted from a miner shoveling around an unguarded tail pulley as part of hismaintenance duties. Tr. 65.

 

IMI maintainsthat, under applicable MSHA guidance, the cattle gates nevertheless providedsufficient “area” guarding of conveyor components when miners were cleaning updebris. Resp’t Br. at 7-8; Resp’t Ex. 5, at 28 (U.S. Dep’t of Labor, MSHA, MSHA’sGuide to Equipment Guarding (Rev. 2004)). IMI relies on the gates, padlock, andtestimony that miners were trained to follow IMI’s policy of not entering thegates without (1) prior permission; and (2) before doing so, locking andtagging out the power supply to the conveyor, located nearby, so that theconveyor and its components could not run. Resp’t Br. at 8-9; Tr. 64, 85, 90,95.

 

The Secretarycontends that such facts and operator policies are insufficient to establishcompliance with section 56.14107(a). Drawing on his experience, Inspector Cookexplained how a miner might not take the time to shut down the plant, butrather could run into the area without doing so to quickly perform an assignedtask. Tr. 55-56. The inspector opined that, as of the date of his inspection, aminer could have easily climbed over the cattle gates and been in position tocontact the unguarded tail pulley and drive chain. Specifically, Inspector Cookstated that a miner could climb over the cattle gates on the left side andfront side of the conveyor and could also crawl under the cattle gate on theright side. Tr. 52-53; Sec’y Ex. 7, 7.1. While Young disagreed that a minerwould be able to fit under the right-side cattle gate, he agreed that a minercould climb over one of the gates, albeit in violation of IMI rules and thetraining it provides its miners. Tr. 90-91.

 

I find theforegoing evidence sufficient to establish a violation of section 56.14107(a)under reviewing court and Commission precedent. When analyzing the reasonablepossibility of injury from unguarded moving parts, the Commission has long considered“*all**relevant* exposure and injury variables, e.g., accessibilityof the machine parts, work areas, ingress and egress, work duties, and asnoted, the vagaries of human conduct.” *Thompson Bros.*, 6 FMSHRC at 2096-97(emphasis added). While the scenario outlined by the inspector here may be onethat would be out of the ordinary, it is by no means so inconceivable as totake it out of the purview of the standard. *See**id.* at 2096 (holdingthe guarding standard to protect against “contact stemming from inadvertentstumbling or falling, momentary inattention, or ordinary human carelessness.”);*see also Mainline*, 693 F.3d at 1186 (ratifying Commission’s approach in *Thompson*and using it to interpret section 56.14107(a)).

 

Acknowledging theCommission’s stated concern regarding all possible “vagaries of human conduct”and that “momentary inattention or ordinary human carelessness” must beprotected against, Commission Judges, in deciding whether a guarding standardhas been violated, have refused to presume that miners will always followoperator rules and protocols, including lock and tag out policies. *See, e.g.*,*Climax Molybdenum Co.*, 38 FMSHRC 2453, 2460 (Sept. 2016) (ALJ) (rejectinglock and tag out policy as relevant consideration because “‘[e]ven a skilledemployee may suffer a lapse of inattentiveness, either from fatigue orenvironmental distractions,’ and enter the area without first shutting down”equipment) (quoting *Great W. Elec. Co.*, 5 FMSHRC 840, 842 (May 1983)); *DixRiver Stone Inc.*, 29 FMSHRC at 203 (rejecting evidence on miners alwaysfollowing lock and tag out policy because “the history of mining is repletewith injuries and fatalities which occurred when previous practices that‘always’ were implemented, were not.”); *Teichert Aggregates*, 39 FMSHRC1098, 1101 (May 2017) (ALJ) (“pulley guarding needed to account for theunlikely event of a miner entering the area without following [lock and tag]out policy.”).[8]

 

While not bindingCommission precedent, I find the reasoning in these cases persuasive and applyit to this case and its similar facts. Consequently, despite the evidence on mineradherence to IMI’s policies, such as on locking and tagging out power suppliesand keeping the cattle gates locked, I conclude that there is a possibilitythat those policies would not prevent a miner from entering the enclosure andcontacting moving machine parts.

 

Similarly, thecattle gates were not a sufficient physical deterrent under the standard. *SeeYaple Creek Sand & Gravel*, 11 FMSHRC 1471 (Aug. 1989) (ALJ) (holdingthat a gate four to five feet from an unguarded drive chain assembly on ahopper feeder conveyor belt did not satisfy section 56.14107). Young conceded that,even when the gates were padlocked, a miner could enter the enclosure by climbingover one of them, given its height. Tr. 90-91. Thus, his testimony contradictsRespondent’s post-hearing brief that characterizes the area in question as “inaccessible.”*See* Resp’t Br. at 9 (citing *Melgaard Constr. Co.*, 26 FMSHRC 720,726 (Aug. 2004) (ALJ)).

 

Commission Judgeshave held that applicable standards require moving machine parts to be guardedin locations that are climbing-accessible. *See, e.g.*,*Brown Bros.Sand Co.*, 17 FMSHRC 578, 581 (Apr. 1985) (ALJ). Consequently, a barrier thatcan be easily defeated by climbing over it is not recognized as sufficientguarding under MSHA standards. *See Teichert*, 39 FMSHRC at 1101 (findinga guarding violation where climbing over or through handrail would expose minerto moving machine parts). According to the MSHA guidance document IMI submittedat hearing and relied heavily upon in its brief, barriers must be “difficult todefeat” and “prevent entry of a miner into an area containing moving machineparts” to be considered adequate “area guarding.” Resp’t Ex. 5, at 28. I findthat was not the case with the cattle gates around the conveyor at the time IMIwas cited for violating section 56.14107(a) and affirm the citation.[9]

 

**3.    ****Gravity**

 

Inspector Cookdesignated the citation as “unlikely” to cause an injury, given the extendedgrease lines, positioning of cattle gates, and lack of footprints near theconveyor. Tr. 55. If an injury did occur, Inspector Cook found that it couldresult in “one” miner suffering a “permanently disabling” injury. Sec’y Ex. 11;Tr. 54-55. Because the citation is marked as “unlikely,” it is not considered anS&S violation. 

 

Inspector Cook, givenhis experience, provided credible testimony that contact with an unguarded feeddrive chain and tail pulley could result in entanglement hazards and result in amputations,cuts, and appendages. Tr. 18, 44. Inspector Cook specifically recalled afatality two months prior during another inspection of an unguarded tailpulley. Tr. 18, 44. He noted that if an injury were to occur, it would likelyimpact one miner who would be performing maintenance. Tr. 65. Moreover, Youngtestified that there was no guard directly over the tail pulley or feed driveand admitted that if a miner were to get caught in either of the moving machineparts while conducting maintenance, he or she could experience a permanentlydisabling injury including amputated fingers, serious lacerations, and brokenbones. Tr. 92.

 

Given the factsabove, I affirm the assessed likelihood, severity, and number of personsaffected.

 

**4.    ****Negligence**

 

In hisdetermination, Inspector Cook found that IMI was moderately negligent becauseother tail pulleys around the mine were adequately guarded and that thisparticular tail pulley could have been readily guarded as well. Tr. 56. He alsoexplained that while IMI took efforts to put up cattle gates, a padlock, and asign, such efforts were insufficient. Tr. 56.**During the testimony ofIMI’s only witness,**Young stated that, aside from the tail pulley anddrive chain at issue, a lot of other pulleys at the mine *were* properlyguarded, estimating the number to be about 20 to 30. Tr. 93.

 

It is plausiblethat a reasonably prudent person familiar with the mining industry under thesame circumstances, would have placed individual guards on the tail pulley anddrive chain to protect miners from the moving machine parts, just as IMI did onapproximately 20-30 other tail pulleys and drive chains elsewhere at the plant.Moreover, because the tail pulley and drive chain at issue were visiblyunguarded, as noted by both Inspector Cook and Young, it is evident that IMIwas aware that the components at issue were not guarded separately.

 

Considering thetotality of the circumstances, I find that the inspector was correct in findingthat IMI was moderately negligent.

 

**                                                              IV.        ****PENALTY**

 

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 the ALJ shall consider sixstatutory penalty criteria in assessing civil monetary penalties:

 

(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).

 

In the fifteenmonths preceding the issuance of Citation Nos. 9443972 and 9443973, MSHA issuedseven violations to Fall Creek. *See*MSHA, *Mine Data Retrieval System*,https://www.msha.gov/mine-data-retrieval-system (last visitedJune 1, 2022). IMI, a relatively small operator, agreed in conjunction with theSecretary that the proposed penalty would not affect its ability to continue inbusiness. Jt. Stip. 8.

 

**A.   ****Citation No.9443972**

 

For Citation No.9443972, the Secretary proposed a penalty of $159.00. I determined IMI’snegligence to be moderate. *See*discussion *supra* Part III.A.4. Ialso determined the gravity of the violation to be S&S, to affect oneperson, and to be reasonably likely to cause a lost workdays/restrictedduty-type injury. *See*discussion *supra*Part III.A.3. Moreover,IMI demonstrated good faith by building a berm that was higher than 34 inches onthe same day that it was cited. *See* Sec’y Ex. 3; Tr. 33, 90. Consideringthe six criteria set forth under section 110(i) of the Mine Act in conjunctionwith the relevant facts, I hereby assess a penalty of $159.00 for Citation No.9443972.

** **

**B.   ****Citation No.9443973**

 

For Citation No.9443973, the Secretary proposed a penalty of $139.00. I determined IMI’snegligence was moderate. *See*discussion *supra* Part III.B.4. Ialso determined the gravity of the violation to be non-S&S, to affect oneperson, to have an unlikely likelihood of injury, and if occurred, to result ina permanently disabling injury. *See*discussion *supra* Part III.B.3.After receiving the citation, IMI maintained that the cattle gates constitutedsufficient guarding and did *not*remedy the issue, neither on the day asthe initial inspection nor by the time of the subsequent inspection on March15, 2021. This prompted MSHA to issue a 104(b) order for IMI’s failure totimely abate the alleged violation. Consequently, credit is not due to theRespondent for its abatement efforts with respect to the guarding violation. Tr.56-57. Considering the six criteria set forth under section 110(i) of the MineAct in conjunction with the relevant facts, I hereby assess a penalty of$139.00 for Citation No. 9443973.

** **

**                                       V.        ****CONCLUSIONAND ORDER**

 

In light of theforegoing, it is hereby **ORDERED**that Citation Nos. 9443972 and 9443973are **AFFIRMED**. Respondent IMI Aggregates, LLC, is hereby **ORDERED**topay a penalty of **$298.00** within 30 days of the date of this decision.[10] Accordingly,this case is **DISMISSED.**

** **

 

 

 

/s/ John T.Sullivan

John T. Sullivan

                                                                                    AdministrativeLaw Judge

 

 

Distribution(First Class Mail and E-mail):

 

LydiaJ. Faklis, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S.Dearborn St., Room 844, Chicago, IL 60604 (faklis.lydia.j@dol.gov) 

 

BradWales, Safety Manager, IMI Aggregates, LLC, 8032 N. SR 9, Greenfield, IN 46140(brad.wales@irvmat.com)

 

Donna V. Pryor,Esq., Husch Blackwell LLP, 1801 Wewatta St., Suite 1000, Denver, CO 80202 (donna.pryor@huschblackwell.com)

----

[1] Mr. Walesconducted direct and cross-examination of witnesses on the Respondent’s behalf duringthe hearing in this case, while Ms. Pryor submitted Respondent’s post-hearingbrief.

[2] In this decision,the joint stipulations, transcript, Secretary’s exhibits, and Respondent’s 

exhibitsare abbreviated as “Jt. Stip.,” “Tr.,” “Sec’y Ex. #,” and “Resp’t Ex. #”respectively.

[3] It is alsoundisputed that the largest vehicle that utilizes the cited section of roadwayis the Caterpillar 980G, and that it has a mid-axle height of 34 inches. Jt.Stip. 16; Tr. 28; Sec’y Ex. 2.1. This measurement provided the basis undersection 56.9300(b) for the height of the berm that IMI built to abate thecitation. Tr. 90; Sec’y Ex. 3.

[4] Throughout theproceeding, IMI mentioned the undisputed fact that the section of relevant roadwaydid not have a berm during previous MSHA inspections, including prior onesconducted by Inspector Cook, and yet no citation had ever been issued. Jt.Stip. 15; Tr. 82; Resp’t Br. at 3. However, by this point it is axiomatic thatthe Secretary cannot be estopped fromenforcing a regulation against an operator simply because the operator had notbeen cited for violating the regulation in the past. *See, e.g.*,*CactusCanyon Quarries, Inc. v. Sec’y of Labor*, 953 F.3d 790, 793 (D.C. Cir. 2020). This of course includes the authority to enforcesection 56.9300. *See**Palmer Coking Coal Co.*,**22FMSHRC 887, 890 (July 2000) (ALJ) (“[o]perator is in no worse position than ifMSHA had cited the condition five years ago. It simply would have had tocorrect the condition and pay the civil penalty at that time.”).

[5]Asshown herein it makes no difference which version of Step 2 is applied in thiscase. *See Consol Pa. Coal Co.*, 43 FMSHRC 145, 148-49 & n.6 (Apr.2021).

[6] In its SafetyStandards for Loading, Hauling, and Dumping and Machinery and Equipment atMetal and Nonmetal Mines, MSHA explains that, when a roadway berm is required,it must be of at least the greatest mid-axle height of the equipment using theroad to “(1) ensure under-carriage contact with the restraint, (2) alert theequipment operator of the hazardous situation, (3) moderate the force ofthe equipment, (4) provide corrective action, and (5) assist the operator inregaining control of the equipment.” 53 Fed. Reg. at 32501.

[7] After observingthe unguarded components, Inspector Cook concluded that a permanently disablinginjury could have occurred if a miner encountered the machine parts while inmotion. The inspector specified that permanently disabling entanglements, whichcause amputations, cuts, and contusions, could occur because of the unguardedmoving machine parts. He reiterated how dangerous such hazards can be andreferenced a fatality that occurred two months prior because of an unguardedtail pulley. Tr. 44, 54-55; Sec’y Ex. 11. Young agreed with this assessment ofthe type of injuries that may result if a miner were to contact the unguardedmoving machinery. Tr. 91.

Moreover, theapplication of safety standards does not require proof that the equipment atissue was operating at the time of the inspection. Here, both witnesses testifiedas to whether, in their opinion, the conveyor had been in use recently. InspectorCook determined that the conveyor was recently used when he inspected themachinery based on the condition of the conveyor belt, describing it as cleanand without rust on the rollers. Conversely, Young did not say that theconveyor ran recently, but rather that IMI was not running the machine at thetime of inspection. Tr. 54, 94. I need not decide between these partiallyconflicting accounts. *See Mid-Continent Coal & Coke Co.*, 3 FMSHRC2502, 2504 (1981) (holding that a temporary interruption in mining activitiesin preparation for further mining and production did not suspend regulatoryrequirements); *Crimson Stone v. FMSHRC*, 198 F. Appx. 846, 850 (11th Cir.2006) (finding that the inspector did not have to catch the dry plant conveyoroperating with its guard torn off to justify a citation for the violation).

[8]*See also CalcoInc.*, 15 FMSHRC 480, 484 (Mar. 1993) (ALJ) (refusing to consider lock andtag out policy, even though it was “uncontrovert[ibly] . . . always follow[ed]”because guarding standard does not recognize any such policy as an exception); *NelsonQuarries*, 36 FMSRHC at 3146 (taking lock and tag out policy into accountonly in finding section 56.14107(a) violation not to be S&S).

[9] As with the bermviolation, IMI argues that the citation should be vacated because previous MSHAinspections had not resulted in a citation for a guarding violation withrespect to the conveyor. Tr. 86; Resp’t Br. at 8. The court in *Mainline*disposed of this contention, stating “MSHA cannot be estopped from enforcingits regulations simply because it did not previously cite the mine operator. .. . . ‘Those who deal with the [g]overnment are expected to know the law andmay not rely on the conduct of government agents contrary to the law.’” 693F.3d at 1187 (quoting *Emery Mining Corp. v. Sec’y of Labor*, 744 F.2d1411, 1416 (10th Cir. 1984)).

[10] 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.