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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

721 19th ST. SUITE 443

DENVER, CO 80202-2500

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

February 7, 2022

DECISION

Appearances: Maria C. Rich-DoByns, CLR, U.S. Department of Labor, MSHA, 1100 

Commerce Street, Room 462, Dallas, TX 75242

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

Brady, TX 76825

Before: Judge Simonton 

I. INTRODUCTION

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

of Labor, acting through the Mine Safety and Health Administration, against P.W. Gillibrand of 

Texas, Inc. (“PWG” or “Respondent”), pursuant to the Federal Mine Safety and Health Act of 

1977 (Mine Act), 30 U.S.C. § 801.1

 This case involves two Section 104(a) citations with a total 

proposed penalty of $250.00. Respondent has withdrawn its contest of Citation No. 9516972, so 

only Citation No. 9516971 remains in dispute. Jt. Stip. 9.

The parties presented testimony and documentary evidence regarding the citation at issue 

at a virtual hearing held on September 23, 2021. MSHA mine safety and health specialist Ty 

Fisher testified for the Secretary. PWG environmental health and safety manager Jimmy Palacio 

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

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

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

 Petitioner,

 v.

P.W. GILLIBRAND OF TEXAS, INC.,

 Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. CENT 2021-0104

A.C. No. 41-03618-529109

Mine: Voca West
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testified for Respondent. After fully considering the testimony and evidence presented at hearing 

and the parties’ post-hearing briefs, I AFFIRM Citation No. 9516971, as modified herein.

II. STIPULATIONS OF FACT

At hearing, the parties agreed to the following stipulations:

1. P.W. Gillibrand, at all times relevant to these proceedings, engaged in mining activities 

and operations at the Voca West (Mine I.D. 41-03618) (the “Voca West Mine”) in 

McCulloch County, Texas.

2. P.W. Gillibrand is subject to the jurisdiction of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. §§ et seq. (the “Mine Act”).

3. P.W. Gillibrand’s mining operations affect interstate commerce within the meaning and 

scope of § 4 of the Mine Act, 30 U.S.C. § 803.

4. 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.

5. The Administrative Law Judge has jurisdiction over these proceedings pursuant to § 105 

of the Mine Act.

6. 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.

7. The citations at issue in this proceeding were properly served upon P.W. Gillibrand, as 

required by the Mine Act.

8. The penalties associated with the violations in this docket if imposed, will not affect the 

Mine’s ability to remain in business.

9. The Respondent agrees to withdraw contest of Citation No. 9516972 and agrees to pay 

the assessed penalty of $125.00.

Tr. 7-8, 12.

III. FINDINGS OF FACT AND SUMMARY OF TESTIMONY

PWG operates the Voca West mine, a sand plant located in McCulloch County, Texas. 

Tr. 22, 82; Jt. Stip. 1. On October 7, 2020, MSHA mine safety and health specialist Ty Fisher2

arrived at the mine to conduct a regular EO-1 inspection. Tr. 23. While inspecting the site, he 

2 Ty Fisher has worked for MSHA for two years and 10 months. Tr. 19. He has worked in the 

mining industry for many years, including as a safety director and as a firefighter. Tr. 20-21.
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was accompanied by three members of mine management: shift supervisor Mike Weeks, 

environmental health and safety manager Jimmy Palacio, and manager Tony Vargas. Tr. 26-27. 

Fisher traveled throughout the mine and inspected the pit, tire plant, fuel island, shop, and 

offices. Tr. 28.

While inspecting the shop area, Fisher issued a citation when he discovered there were no 

readily visible warning signs prohibiting smoking or open flames at the grease station used to 

service equipment. Tr. 28-29, 76; Ex. S-1-1. Fisher explained at hearing that there were three 

barrels present at the grease station. Tr. 29. One 55-gallon barrel contained a red grease and was 

hooked up to a grease gun. Tr. 30, 38, 79, 111; Exs. S-1-2, S-2-1A, S-2-9. That barrel also had 

grease on the outside of it and was connected to an air pump located on top of the barrel. Tr. 38; 

Ex. S-2-9. A second 55-gallon barrel was mostly empty except for green grease residue along 

the inside of it. Tr. 30, 39, 79; Exs. S-1-2, S-2-1A, S-2-11. A third, 33-gallon barrel was located 

below the grease gun to catch drips, but also contained four inches of combustible trash inside. 

Tr. 30-31, 34-35, 79; Exs. S-1-2, S-2-1A, S-2-8A.

Fisher testified that he believed the grease barrels posed a fire hazard because the 

combustible materials stored in the open barrel could be easily ignited by a spark and potentially 

cause the grease to burn. Tr. 35, 40. Fisher noted that grease fires emit toxic fumes and are 

harder to extinguish than other types of fires. Tr. 40. To terminate the violation, the mine 

installed a warning sign at the grease station. Tr. 52, 85; Ex. S-2-12.

PWG’s environmental health and safety manager, Jimmy Palacio,3 testified for 

Respondent. Examining the safety data sheet for the green grease, he explained that he did not 

believe the green grease posed a fire hazard. Tr. 94; Ex. R-E-4. Palacio did not believe a 

warning sign cautioning against smoking and open flame would be a reasonable precaution to 

implement for this material. Tr. 105-06.

IV. DISPOSITION

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

which alleged:

The grease station area at the shop had no warning signs prohibiting no smoking 

or open flames readily visible. The combustible grease barrels (3) that are used to 

grease equipment if ignited are a fire hazard to miners working near them, 

exposing them to burn injuries and smoke inhalation. There was no ignition 

source observed in the immediate are. The maintenance shop has an available 

fully functional fire extinguisher nearby.

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

3 Jimmy Palacio has worked for PWG for 18 months, oversees three mines, and has over seven 

years of experience working in mine safety and health. Tr. 81.
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Fisher designated the citation as a non-significant and substantial violation of 30 C.F.R. § 

56.4101 that was unlikely to cause an injury that could reasonably be expected to result in “lost 

workdays or restricted duty,” would affect one miner, and was caused by PWG’s moderate 

negligence. Ex. S-1-1. 

A. Fact of Violation

The Commission has long held that “[i]n an enforcement action before the Commission, 

the Secretary bears the burden of proving any alleged violation.” Jim Walter Res., Inc., 9 

FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992). The 

Commission has described the Secretary’s burden as:

The burden of showing something by a “preponderance of the evidence,” the most 

common standard in the civil law, simply requires the trier of fact “to believe that the existence 

of a fact is more probable than its nonexistence.” RAG Cumberland Res. Corp., 22 FMSHRC 

1066, 1070 (Sept. 2000); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989). 

For the reasons that follow, I find that the Secretary has presented sufficient evidence to show 

that PWG violated 30 C.F.R. § 56.4101.

30 C.F.R. § 56.4101 provides that “[r]eadily visible signs prohibiting smoking and open 

flames shall be posted where a fire or explosion hazard exists.” The Secretary asserts that the 

mine’s grease station posed a fire hazard. Sec’y Br. at 5-6. At the grease station, there were 

three barrels: one closed barrel containing a red grease, one closed barrel with residue of a green 

grease coating the inside, and one open barrel catching drips of the red grease with about four 

inches of trash inside it. Respondent presented testimony and documentary evidence regarding 

the flammability of the green grease but failed to meaningfully address the relevant properties of 

the red grease. The safety data sheet for the green grease conveys that that the grease is “not 

considered flammable or combustible, but this product will burn if involved in a fire.” Ex. R-E1. The grease will also emit toxic fumes when burned. Id. Fisher testified that the grease at the 

grease station was a combustible liquid, and, while it did not pose an explosion hazard, it did 

present a fire hazard even though the grease was not flammable. Tr. 57-58.

As Fisher testified at hearing, the green grease at issue here “is not the only fire hazard.” 

Tr. 76. There were two greases present alongside paper and other trash. While the flammability 

of the red grease was not established, it is clear that the paper and rags present in the open barrel 

posed a fire hazard because they are undoubtedly flammable. Given the presence of that trash, 

and its proximity to grease that emits toxic fumes when burned, I find that the condition of the 

grease station at Voca West posed a fire hazard. 30 C.F.R. § 56.4101 requires signage to be 

posted where a fire or explosion hazard exists, and by failing to post signage at the grease 

station, PWG violated the standard.

B. Gravity

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

expected to result in lost workdays or restricted duty. Ex. S-1-1. At hearing, Fisher explained 

that there was no potential ignition source at the grease station, and that the area is only used to 
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service equipment at certain times, so there was low exposure to the hazard. Tr. 41, 45. He 

marked “lost workdays or restricted duty” because, if a fire were to occur in the area, the most 

likely injuries would be smoke inhalation or burns. Tr. 46. There were clear and open escape 

routes on three sides of the grease station, so someone affected by the hazard would be able to 

get away from it. Tr. 46. Because the citation is marked “unlikely,” it is not considered a 

significant and substantial violation. Tr. 46. Respondent did not contest the gravity designations 

for this violation, and I find the designations made by the inspector to be appropriate. 

C. Negligence

Under the Mine Act, operators are held to a high standard of care, and “must be on the 

alert for conditions and practices in the mine that affect the safety or health of miners and to take 

steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d). 

MSHA’s regulations define reckless disregard as conduct which exhibits the absence of the 

slightest degree of care, high negligence as actual or constructive knowledge of the violative 

condition without mitigating circumstances; moderate negligence as actual or constructive 

knowledge of the violative condition with mitigating circumstances; and low negligence as 

actual or constructive knowledge of the violative condition with considerable mitigating 

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

Fisher determined that the violation was a result of PWG’s moderate negligence, 

explaining at the hearing that “the operator should have known to put up warning signs 

prohibiting smoking and no open flames,” but there were mitigating circumstances. Tr. 47. The 

grease station had been put in only one or two months before the inspection, and supervisors 

were unaware that there was no signage posted. Tr. 47. Fisher also stated that there were 

numerous other signs prohibiting smoking and open flames throughout the mine site, which 

“showed that they do their due diligence and it was just an oversight.” Tr. 47.

PWG should have known to put up a warning sign at the grease station. However, given 

the considerable mitigating circumstances, I reduce PWG’s negligence from moderate to low for 

this citation. 

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 Company, 5 

FMSHRC 287, 291 (Mar. 1983). The Act requires that in assessing civil monetary penalties, the 

Commission ALJ shall consider the six statutory penalty criteria:

(1) the operator’s history of previous violations, (2) the appropriateness of such penalty to 

the size of the business of the operator charged, (3) whether the operator was negligent, 

(4) the effect on the operator’s ability to continue in business, (5) the gravity of the 

violation, and (6) the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation.
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30 U.S.C. § 820(i).

For Citation No. 9516971, the Secretary proposed a regularly assessed penalty of 

$125.00. PWG has a minimal violation history and is a relatively small operator. Tr. 24-25, Ex. 

S-5. The parties stipulated that the penalty will not affect PWG’s ability to continue in business. 

Jt. Stip. 8. As discussed above, I find that this non-S&S violation was unlikely to result in an 

injury causing lost workdays or restricted duty and was the result of PWG’s low negligence. 

Finally, PWG demonstrated good faith in quickly installing a sign to achieve compliance with 

the cited standard. In light of these considerations, I find that the proposed penalty of $125.00 is 

appropriate. 

For Citation No. 9516972, the Secretary has proposed a regularly assessed penalty of 

$125.00. PWG has withdrawn its contest of this violation and agreed to pay the proposed 

penalty. Jt. Stip 9. As required by the Mine Act, I have considered the representations and 

documentation submitted and conclude that the proposed penalty is appropriate under the criteria 

set forth in Section 110(i) of the Act.

VI. ORDER

It is hereby ORDERED to pay the Secretary the total sum of $250.00 within 40 days of 

this order.4

David P. Simonton

Administrative Law Judge

4 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health Administration

P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.
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Distribution: (Email5

) 

Maria C. Rich-DoByns, CLR, U.S. Department of Labor, MSHA, 1100 Commerce Street, Room 

462, Dallas, TX 75242 (dobyns.maria@dol.gov)

Jimmy Palacio, P.W. Gillibrand of Texas, Inc., 1000 Oglebay Norton Drive, Brady, TX 76825

(jimmy.palacio@pwgtx.com) 

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

(meghan.neal@pwgcoinc.com) 

5 For the foreseeable future, Federal Mine Safety and Health Review Commission (FMSHRC) 

notices, decisions, and orders will be sent only through electronic mail. Because FMSHRC will 

not be monitoring incoming physical mail or faxes, parties are encouraged to submit all filings 

through the agency’s electronic filing system. If you are not able to file through our electronic 

filing system, please send an email copy and we will file it for you.