Firm Names, Person Names, Locations and citation #’s have been redacted by $afepro to avoid “payback” for the inspector and firm by the agency. Otherwise, the synopsis is direct quote from the ALJ Court record.

 Findings of Fact - Conclusions of Law

*** operates several sand and gravel mines in the Oregon area. In June of 2008, one of its operations, Mobile Crusher #1 (“MC-1”), was located near Town, State, in an area known as the XXXXYYY. MC-1 consists of a feeder-hopper, crushers and screens, and conveyors that move material between the various pieces of equipment. As its name implies, MC-1 is a mobile facility. Its major components are mounted on rubber-tired trailers, which are stabilized by jacks and blocks in locations where it is placed into operation. Located adjacent to MC-1 was another facility known as the “truck dump stacker” (“TDS”). The TDS was a permanent facility, designed to create a stockpile of material trucked to the site.3 The TDS had been locked out of service, and was not operating when the contested citations were issued.

On June 11, 2008, “Junior” Cxxxx, an inspector employed by the Secretary’s Mine Safety and Health Administration, conducted an inspection of ***’s equipment located at the XXXXYYY. Cxxxx had joined MSHA in April 2007, underwent training, and became an authorized representative of the Secretary approximately 10-12 months later. Consequently, he had limited experience as an inspector at the time of the inspection. Cxxxx had previously worked in several capacities in the mining field. His most pertinent employment experience was as a conveyor mechanic, a position he held for approximately six months prior to joining MSHA. He holds a college degree in art, with a specialization in metalsmithing, blacksmithing, and tool and die production technology.

Based upon his “observations and information provided to him,” Cxxxx concluded that the TDS was an operational part of MC-1, and was subject to inspection despite the fact that it was not in operation. In the course of the inspection, Cxxxx issued four citations for conditions on the TDS and eight citations for conditions on MC-1. LTM timely contested the citations and the subsequently assessed civil penalties. In addition to challenging the merits of the citations, *** contends that the TDS was not used or available for use, that it should not have been inspected, and that citations issued for conditions at that facility should be vacated.

On close examination, however, none of the factors relied on to sustain the TDS

citations, whether considered separately or together, establish that the TDS was operated in April, or was available for use at the time of the inspection.

GUARDS

If the Secretary had established that *** had operated the Truck Dump Stacker periodically despite its being locked out, then it would have been available for use, and the citations would be considered on the merits. A closer question would have been presented if the Secretary had proven that the TDS had been operated “in the recent past,” as Cxxxx believed.

However, recent operation was likewise not established. Based upon the foregoing, I find that the TDS was not available for use by miners, and that the citations issued for conditions on the TDS must be vacated.

The Mobil Crusher #1 Citations

There are seven citations remaining at issue related to MC-1. Six of those allege a violation of the standard requiring that moving machine parts be guarded. The standard provides:

30 C.F.R. § 56.14107.

The standard is broadly worded because it must be applied to myriad circumstances and, as such, calls for interpretation by mine operators and MSHA inspectors. Not surprisingly, there is some variation, or inconsistency, in the application of the standard. The citations at issue here present a not uncommon factual pattern – a new or different inspector perceives a violation of the standard in conditions that were not viewed as violative by inspectors during prior inspections. Assessing the validity of such citations can present difficult issues. As explained in Good, when the Secretary’s interpretation of a regulation is challenged, the initial determination is whether the regulation or standard is plain or ambiguous. The Secretary’s interpretation of an ambiguous regulation must be deferred to if it is “reasonable, consistent with statutory purpose, and not in conflict with the statute’s plain language.” 23 FMSHRC at 1004. If the Secretary’s position is sustained, a separate inquiry must be made, i.e., whether an operator had fair notice of the Secretary’s interpretation. To determine whether an operator received fair notice of the agency’s interpretation, the Commission asks “whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard. Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). . . .

In applying the reasonably prudent person standard to a notice question, the Commission has taken into account a wide variety of factors, including the text of a regulation, its placement in the overall regulatory scheme, its regulatory history, the consistency of the agency’s enforcement, and whether MSHA has published notices informing the regulated community with “ascertainable certainty” of its interpretation of the standard in question. . . . Also relevant is the testimony of the inspector and the operator’s employees as to whether certain practices affected safety. . . . Finally, we have looked to accepted safety standards in the field, considerations unique to the mining industry, and the circumstances at the operator’s mine [including the existing guarding on each moving part, the location of each part in relation to where miners traveled and worked, and when and how miners accessed each part, if at all]. 23 FMSHRC at 1004-05 (opinion of Commissioners Jordan and Beatty) (citations omitted).

In evaluating whether a particular condition violated the standard, the gravity of any such violation, and whether *** had fair notice of the Secretary’s interpretation of the standard, the potential exposure of miners to the moving machine parts must be considered. In Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984), the Commission held that a similar guarding standard must be interpreted by considering whether there is a reasonable possibility of contact and injury, including contact stemming from inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness. Cxxxx’s determinations that guarding violations existed, and his assessment of the gravity of the violations, was premised upon two general theories of exposure. One was that a miner involved in inspecting or maintaining the machinery might become entangled while in the process of touching gear boxes or bearing caps and/or greasing the bearings while in operation. The other was the potential for a person to contact the moving parts while traveling or cleaning in the vicinity of the potential hazard, e.g., by falling. The inspection/maintenance theory is generally applicable to all of the guarding violations, and will be addressed first. The travelway/cleanup theory is particular to each violation, and will be discussed in conjunction with the specific citation at issue.

Cxxxx’s inspection/maintenance theory of exposure was based upon his general mining experience, particularly his approximately six months in a position he described as “conveyor mechanic.” He believed that miners would place themselves into very close proximity to moving machine parts on conveyors in order to perform inspection and maintenance tasks, e.g., physically touching gear boxes and bearing caps with their hands in order to feel for vibrations or excessive heat – indicators of problems or impending failure. He also believed that close contact was required in order to grease bearings which he assumed was done while machinery was in operation to promote even distribution of grease.

“The Manager” testified that *** did not perform inspection and maintenance functions in the manner described by Cxxxx. He has worked with crushing operations for many years, and has nine to ten years of experience working on conveyors. “The Manager” testified that ***’s crusher operator would perform a general walk-around inspection daily, but would not come into close proximity to any moving parts. Any maintenance that needed to be performed, and maintenance included greasing, was done while the equipment was deenergized and locked and tagged out. “The Manager” testified that it was not necessary to touch a bearing to determine if it was failing, because it could be heard, smelled, and/or seen. Bearings were typically run to failure, even though that might result in unscheduled down time. Touching bearing caps, guards, or other parts in the vicinity of moving parts was not the standard way to diagnose problems, and LTM’s employees were not trained to do that. Cxxxx did not claim to have seen any of ***’s employees take such actions, and conceded that he did not know how ***’s employees were trained. Around the time of the inspection, MC-1 was staffed by the crusher operator and two loader operators, and virtually no maintenance was performed on the plant.18 Tr. 527-28. In order to perform maintenance, the men would have had to work overtime or shut the plant down early, and “The Manager”  did not recall any overtime being recorded on time cards and did not see the men performing any maintenance.

I find “The Manager’s” testimony, which addressed actual practices at MC-1, to be credible. *** did not closely inspect or service its conveyors or other equipment while in operation. In fact, the prospect of a miner reaching around or near guards in close proximity to moving machine

parts like conveyor head or tail pulleys strikes me as a highly dangerous practice. ***’s practice of performing maintenance only when equipment was locked and tagged out, regardless of any advantages Chaix’s touch/feel theory might have in the diagnoses of impending failure, seems eminently reasonable. It also is in conformance with other standards, e.g., 30 C.F.R. § 56.14204 which provides that machinery shall not be lubricated manually while it is in motion where application of the lubricant may expose persons to injury. In evaluating the guarding violations, no weight will be accorded to the close inspection/maintenance theory of exposure.

Citation No. “0000000” alleges a violation of the guarding standard, which is described in the “Condition and Practice” section of the citation as follows: The left side of the head pulley on the #3 hopper feeder conveyor has not been adequately guarded.

Ruling:I have serious doubts that the Secretary’s interpretation is reasonable. In any event, it is clear that *** did not have fair notice of the Secretary’s interpretation. Consequently, the citation will be vacated.” ALJ

Citation No. “1111111” also alleges a violation of the guarding standard, described in the “Condition and Practice” section of the citation as follows: The head pulley and shaft couplings on the "underhopper conveyor" have not been adequately guarded.

Ruling: Considering those factors, the isolated location of the pulley, the existing guarding and the additional protection provided by the rock box, *** did not have fair notice of the Secretary’s interpretation of the standard as applied to the subject pulley.” ALJ

Citation No. “2222222” alleges a violation of the guarding standard, described in the “Condition and Practice” section of the citation as follows: The self-cleaning tail pulley on the "under 1400" conveyor has not been adequately guarded.

Ruling: *** reasonably viewed Cxxxx’s citation for inadequate guarding of the tail pulley as a

significant and unexpected departure from their settled understanding of how the standard

applied to the subject condition. Upon consideration of the factors relevant to this defense, I find that *** did not have fair notice of the Secretary’s interpretation of the guarding standard as applied with respect to this citation.

Citation No. “3333333” alleges a violation of the guarding standard, described in the ”Condition and Practice” section of the citation as follows: The v-belt drive on the #2 (El Jay) screen has not been adequately guarded, offering open access to the rapidly rotating primary drive and idler pulleys. Both the leading and the trailing sides of the primary drive pulley were left open to contact. This condition was obvious to the casual observer. Miners performing inspection, maintenance, lubrication, or cleanup activities in this area risk very serious injuries resulting from entanglement with these moving machine parts.

Ruling: Considering the relatively isolated location of the cited condition, the previously recognized adequacy of the factory-installed guard, and the extremely limited occasions that a miner would have traversed the walkway while the screen was in operation, I find that *** did not have fair notice of the Secretary’s interpretation of the standard.

The Appropriate Civil Penalties

The parties stipulated that Mobil Crusher #1 is a small mine; that its controlling entity is

medium sized, and that it had not been cited for any violations within the fifteen months

preceding the inspection. LTM does not contend that the maximum penalty that could be

assessed for the violations would affect its ability to continue in business. The Secretary does

not contend that the violations were not promptly abated.

Citation No. 6398754 is affirmed. However, the violation was unlikely to result in a lost

work days injury and was not S&S. LTM’s negligence was low. A civil penalty of $176.00 was

proposed by the Secretary. The lowering of the levels of gravity and negligence justify a

reduction in the proposed penalty. Upon consideration of the above, the factors enumerated in

section 110(i) of the Act, and guided by the Secretary’s penalty calculation regulations,29 I

impose a penalty in the amount of $100.00.

Citation No. 6398758 is affirmed. However, the violation was unlikely to result in a fatal

injury and was not S&S. A civil penalty of $392.00 was proposed by the Secretary. The

lowering of the level of gravity justifies a reduction in the proposed penalty. Upon consideration

of the above, the factors enumerated in section 110(i) of the Act, and guided by the Secretary’s

penalty calculation regulations, I impose a penalty in the amount of $100.00.

LTM withdrew its contest of Citation No. 6398766, which alleged that miners’ training

records were incomplete. The civil penalty proposed for that violation, $100.00, will be

imposed.

ORDER

WHEREFORE, Citation Nos. “0000000, 1111111, 2222222, 3333333, 4444444,

5555555, 6666666, 7777777 and 8888888 are VACATED. Citation Nos. 9999999 and 1234567

are AFFIRMED as modified. Citation No. 8910110 is AFFIRMED. Respondent is

ORDERED to pay civil penalties in the total amount of $300.00, within 45 days.

Michael E. Zielinski

Senior Administrative Law Judge