**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICE OF ADMINISTRATIVELAW JUDGES

721 19th ST.SUITE 443

DENVER, CO 80202-2500

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

 

 
| SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH        

 ADMINISTRATION (MSHA),

             Petitioner,

 

 

             v.

 

 

CACTUS CANYON QUARRIES INC.,

              Respondent.                                               |   |   | CIVIL PENALTY PROCEEDING

 

Docket No. CENT 2021-0090

A.C. No. 41-00009-527340

 

 

 

 

 

 

Mine: Fairland Plant & Qys |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

** **

**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 

 
    - 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’post-hearing briefs, I **AFFIRM**Citation No. 9641812, as modified herein,and **VACATE**Citation Nos. 9641813 and 9641814.

 
    - STIPULATIONS OF FACT

 

At hearing, theparties agreed to the following stipulations:

 
    - 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).

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

 
    - 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.

 
    - 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.

 
    - 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.

 
    - 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.

 
    - Respondent timely contested the violations.

 
    - 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. 

 

 

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” Garcia[3] 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 Garcia[4] 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 

 

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. 

 

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 

 

 

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 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.

 

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.

 

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. 

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 well-understood 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 non-significant 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. 

 

 

 

** **

**                                                                 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]

 

 

 

 

 

 

/s/ David P. Simonton

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

 

----

[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.

[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.

[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.

[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).  

[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.