Secretary of Labor v. IMI Aggregates, LLC

Plain-English summary

MSHA cited IMI Aggregates at its Indiana sand and gravel mine for a 125-foot section of roadway without an adequate berm and for an unguarded conveyor tail pulley and drive chain. Judge John Sullivan found that frequent two-way traffic near the roadway edge made overtravel and a rollover reasonably likely, so the berm violation was significant and substantial. He also found that cattle gates, a padlock, and a warning sign did not adequately guard the moving conveyor parts because miners still needed access to the area. The guarding violation was non-S&S, but its potential injuries were permanently disabling and IMI did not abate it before MSHA issued a section 104(b) order. Both citations and the proposed penalties were affirmed, for a total of $298.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.9300(b) and 56.14107(a)
• Outcome: Both citations were affirmed, including the S&S designation for the berm violation, and penalties totaling $298 were assessed.
• Key point: Area barriers did not replace guards on accessible moving parts, and frequent travel beside an unbermed drop-off supported an S&S finding.

Full text (FMSHRC public release)

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 ( [email protected] )

Brad
Wales, Safety Manager, IMI Aggregates, LLC, 8032 N. SR 9, Greenfield, IN 46140
( [email protected] )

Donna V. Pryor,
Esq., Husch Blackwell LLP, 1801 Wewatta St., Suite 1000, Denver, CO 80202 ( [email protected] )

[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
t he 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.