                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 4, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                              FOR THE TENTH CIRCUIT


    MAINLINE ROCK AND BALLAST,
    INC.,

                Petitioner,

    v.                                                  No. 11-9525
                                                    (Petition for Review)
    SECRETARY OF LABOR, MINE
    SAFETY AND HEALTH
    ADMINISTRATION (MSHA);
    FEDERAL MINE SAFETY AND
    HEALTH REVIEW COMMISSION,

                Respondents.


                              ORDER AND JUDGMENT *


Before KELLY, MURPHY, and HOLMES, Circuit Judges.


         Mainline Rock and Ballast, Inc. (“Mainline Rock”) seeks review of two

civil penalties assessed by the Mine Safety and Health Administration (“MSHA”)

for regulatory violations stemming from an accident at Mainline Rock’s Torrance



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Quarry. The accident resulted in serious injuries to a miner who contacted a

moving part of a conveyor belt. An MSHA inspector cited Mainline Rock for

failing to install a protective guard around the moving part as required by

30 C.F.R. § 56.14107(a), and for failing to timely notify the MSHA of the

accident pursuant to 30 C.F.R. § 50.10. Mainline Rock challenged the citations,

but an administrative law judge (“ALJ”) of the Federal Mine Safety and Health

Review Commission (“Commission”) affirmed the penalties, and the Commission

declined review. We have jurisdiction under 30 U.S.C. § 816(a)(1) and affirm the

penalty assessments.

                                 BACKGROUND

       Mainline Rock operates a ballast quarry in New Mexico known as the

Torrance Quarry. To transport ballast from the quarry, Mainline Rock uses

conveyor belts constructed of steel I-beams and spinning metal rollers. The

conveyor belt implicated in this case, known as the Grizzly Conveyor, is four feet

wide and stands thirty-three inches above the ground. Steel I-beams frame the

belt, which runs along a series of four-foot wide metal rollers. The rollers

suspend the belt and ballast, and after rock is delivered from the belt, the belt

returns along the undercarriage of the conveyer suspended by five-inch diameter

spinning “return rollers.” The accident that gave rise to this case occurred when a

miner, Edelberto Avitia, was pulled into the conveyor by one of these return

rollers.

                                         -2-
      The precise manner in which Avitia was drawn into the conveyor by the

roller was the subject of some controversy. Before the ALJ, Avitia testified that a

coworker, Jeremiah Carpio, had told him that Mine Superintendent Mike Harris

wanted him to shovel dirt and rock that fell off the Grizzly Conveyor. To do this

job, which was a routine task, Avitia knelt next to the conveyor and shoveled

beneath it by extending his arms up to his shoulders. He did not know how he

was caught by the roller, but he speculated that his clothing or shovel must have

come into contact with it. The ALJ, however, found that Avitia had positioned

himself underneath the conveyor to remove rock or material that had become

lodged in the conveyor frame. The ALJ determined that while under the

conveyor, Avitia’s shovel contacted the spinning roller, which instantly drew him

in between the belt and roller. Avitia testified that when contact was made, he

felt the impact and blacked out. When he regained consciousness, he found

himself pinned in the air between the return roller and the belt, with the roller

below his stomach and the belt still running along his back. His head and torso

had passed through a seven-inch space.

      Avitia estimated that he spent the next twenty minutes trying to signal for

help. Because he was trapped under the conveyor frame, within reach of the

ground, Avitia managed to retrieve his radio and tell other miners to stop the

conveyor. He testified that he yelled, “Stop everything . . . . I’m dying. I’m

stuck in a belt.” R., Vol. 2 at 70. Another miner heard his pleas, stopped the

                                          -3-
conveyor, and unsuccessfully tried to extricate Avitia by cutting the belt. Carpio,

meanwhile, called 911, and another miner used a torch to cut the roller from the

conveyor. When Avitia was finally freed, the other miners began removing his

clothes, while Harris, who had arrived on the scene, began administering oxygen.

Harris told Avitia that he would be all right, but Avitia replied, “No, I’m in very

bad shape.” R., Vol. 2 at 106 (internal quotation marks omitted).

      During the ordeal, Mine Load-out Superintendent Dwayne Olsen learned

there had been an accident. Olsen had been working some 1500 feet away, and

when he arrived on scene, Avitia was laying on the ground with his head in

another miner’s lap. Olsen took a “quick glance” at Avitia, id., Vol. 3 at 460, and

noticed that he looked pale. Olsen described Avitia’s face as “kind of swollen”

and his head as “misshaped.” Id. at 461. Olsen spoke to no one and asked no

questions. After staying at the scene for “[s]econds,” id. at 460, he went to his

office to call Mainline Rock’s corporate counsel, the company’s compliance

officer, and 911. At no point did Olsen make any inquiries of Avitia’s condition.

Nor did he report the accident to MSHA until after Avitia was airlifted to a

hospital. By Olsen’s account, the total time from when he first learned of the

accident until he reported it to MSHA was approximately one hour and

thirty-eight minutes. See Joint App. at 90-91.

      Avitia spent two-and-a-half months in the hospital recovering. He

sustained severe internal injuries requiring a tracheotomy and surgery to his

                                         -4-
pelvis, pancreas, hip, and spleen. Avitia suffered permanent damage to his

kidneys and also broke his arm, his collarbone, and all of his ribs.

      The ensuing MSHA investigation resulted in two citations against Mainline

Rock. The first was for a violation of the mandatory safety standard imposed by

30 C.F.R. § 56.14107(a), which requires that all moving machine parts be

guarded. An MSHA inspector determined that Mainline Rock should have had a

guard installed around the return roller. The ALJ affirmed the citation and

concluded that Mainline Rock exhibited high negligence by failing to guard the

roller given testimony that shoveling beneath the conveyor was a routine task and

inspectors had previously warned the company to guard its return rollers. The

second citation was assessed for failing to report the accident to MSHA within

fifteen minutes, as required by 30 C.F.R. § 50.10. In affirming this citation, the

ALJ similarly determined that Mainline Rock exhibited high negligence because a

reasonable person would have called MSHA upon seeing Avitia at the scene, but

Olsen remained “remarkably non-inquisitive about Avitia’s condition and

injuries.” Joint. App. at 130. The two penalties totaled $66,000.

                                   DISCUSSION

      Because the Commission declined to review the ALJ’s decision, the ALJ’s

decision stands as the final administrative order. 30 U.S.C. § 823(d). We review

the ALJ’s factual findings to ensure they are supported by substantial evidence.

Id. § 816(a)(1); Plateau Mining Corp. v. Fed. Mine Safety & Health Review

                                         -5-
Comm’n, 519 F.3d 1176, 1191 (10th Cir. 2008). We review the ALJ’s legal

conclusions de novo. Olson v. Fed. Mine Safety & Health Review Comm’n,

381 F.3d 1007, 1011 (10th Cir. 2004).

      A. 30 C.F.R. § 56.14107 - Failure to Guard Moving Machine Parts

      1. Applicability of Mandatory Safety Standard

      We first consider Mainline Rock’s contention that the mandatory safety

standard of 30 C.F.R. § 56.14107(a) does not apply to the roller cited in this case.

The full text of the regulation provides:

      30 C.F.R. § 56.14107 Moving Machine Parts

      (a) Moving machine parts shall be guarded to protect persons from
      contacting gears, sprockets, chains, drive, head, tail, and takeup
      pulleys, fly-wheels, couplings, shafts, fan blades, and similar moving
      parts that can cause injury.

      (b) Guards shall not be required where the exposed moving parts are
      at least seven feet away from walking or working surfaces.

      The agency has explained that this “standard requires the installation of

guards to protect persons from coming into contact with hazardous moving

machine parts. The standard clarifies that the objective is to prevent contact with

these machine parts. The 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). Both the regulation and the

explanation clearly require guards around moving parts, and “[w]hen the meaning

                                            -6-
of a regulatory provision is clear on its face, the regulation must be enforced in

accordance with its plain meaning,” Walker Stone Co. v. Sec’y of Labor, 156 F.3d

1076, 1080 (10th Cir. 1998).

      Mainline Rock argues, however, that the standard does not apply to this

specific roller because Avitia was trained not to dig under the conveyor while it

was operating, but he intentionally stuck his shovel into the conveyor. Mainline

Rock interprets the standard to exclude intentional conduct because contact is

always possible through intentional conduct.

      To the extent Mainline Rock attempts to equate intentional conduct with

intentional contact, its interpretation is absurd. See id. at 1082 (rejecting

interpretation that would lead to “anomalous results”). Avitia may have exhibited

intentional conduct by going beneath the conveyor and attempting to dislodge a

rock, but that does not mean he intentionally contacted the roller in disregard of

the near-lethal consequences. Simply put, the standard’s objective is to prevent

injuries from contact with moving machine parts, most of which occur when

“persons [are] performing deliberate or purposeful work-related actions with the

machinery.” 53 Fed. Reg. 32509. Mainline Rock’s interpretation would

disregard this objective and leave unprotected those workers who accidentally

contact a hazardous moving machine part while performing some intentional

work-related activity. We decline to adopt an interpretation that “would defeat

the safety promoting purposes of the regulation.” Walker, 156 F.3d at 1082.

                                          -7-
      Moreover, while Mainline Rock insists that an employee’s intentional

contact is not covered by the standard, its authorities deal with regular inspection

or maintenance of the hazardous machine part. See, e.g., Sec’y of Labor v. Brown

Bros. Sand Co., 17 FMSHRC 578, 579-80 (1995). In that context, where the

employee’s efforts to access the hazardous part for maintenance purposes obviates

any reasonable possibility of injury, the efficacy of a guard is minimal. But those

circumstances differ markedly from the ones before us, which fall squarely within

the standard, see id. at 581 (stating that “inadvertent contact” with a moving part

is “the precise hazard . . . the guarding standard seeks to prevent”).

      Additionally, the ALJ’s conclusion is bolstered by the Commission’s

interpretation of a similar regulation, 30 C.F.R. § 77.400, which requires that

guards be installed around moving machine parts at surface coal mines. 1

Recognizing that this regulation applies where moving parts “‘may be contacted’”

and “‘may cause injury,’” the Commission explained that the standard “imports

the concepts of reasonable possibility of contact and injury, including contact

stemming from inadvertent stumbling or falling, momentary inattention, or


1
      The relevant portion of the regulation provides:

      § 77.400 Mechanical equipment guards.

      (a) Gears; sprockets; chains; drive, head, tail, and takeup pulleys;
      flywheels; couplings; shafts; sawblades; fan inlets; and similar exposed
      moving machine parts which may be contacted by persons, and which may
      cause injury to persons shall be guarded.

                                          -8-
ordinary human carelessness.” Sec’y of Labor v. Thompson Bros. Coal Co.,

6 FMSHRC 2094, 2097 (1984). To determine whether the standard applies, the

Commission outlined several factors, including the “accessibility of the machine

parts, work areas, ingress and egress, work duties, and, as noted, the vagaries of

human conduct.” Id.

          Avitia testified that he was instructed to shovel dirt and rock that fell off

the conveyor. He stated that this was a routine task he performed by kneeling

beside the conveyor to shovel beneath it. The ALJ found that Avitia went under

the conveyor, which, given its height (33 inches), was not a difficult place to be:

“[T]he only impediment to access the return roller was minimal and insubstantial;

simply bending over at the waist, not crawling, afforded access.” Joint App. at

121. Given these facts, it was entirely foreseeable that a miner could contact the

roller.

          Still, Mainline Rock asserts the roller was exempt from the standard under

30 C.F.R. § 56.14107(b), which provides an exception for “exposed moving parts

[that] are at least seven feet away from walking or working surfaces.” According

to Mainline Rock, the roller was “guarded by location” because it was situated

within the I-beam structure of the conveyor. This argument is meritless, however,

because there is no evidence that the roller was seven feet from walking or

working surfaces. See 53 Fed. Reg. 32509 (“[G]uarding by location is recognized

as an alternative to a physical guard in instances where the exposed moving parts

                                             -9-
are elevated at least seven feet above walking or working surfaces.”). Rather, the

roller was a mere 33 inches off the ground, located in close proximity to where

Avitia worked, and almost entirely exposed beneath the conveyor. Mainline Rock

suggests that the roller was inaccessible because it was located out of reach, but

the agency has rejected that interpretation as well. See id. (explaining that the

phrase “located out of reach” “would create uncertainty as to the standard’s

application” and that “[u]nder the final rule, the standard applies where the

moving machine parts can be contacted and cause injury” (internal quotation

marks omitted)). In any event, the ALJ recognized that Mainline Rock’s

photographs of the conveyor demonstrated that the roller was not located out of

reach, but rather was quite easily accessible. See Joint App. at 121.

      Mainline Rock also contends that the standard does not apply because a

return roller is not a specifically enumerated part under 30 C.F.R. § 56.14107(a).

This argument is readily defeated, however, because in addition to those parts

specifically listed, the regulation also applies to “similar moving parts.” Id. And,

the Commission has previously recognized that return rollers are precisely the

type of hazardous moving machine part covered by the regulation. See, e.g.,

Sec’y of Labor v. Sangravl Co., 30 FMSHRC 1111, 1112 (2008). 2


2
       Mainline Rock reiterates an argument rejected by the ALJ, that the MSHA
Program Policy Manual provides an exception from the guarding standard for
return rollers where skirt boards are present. The ALJ rejected this argument
                                                                      (continued...)

                                         -10-
      2. Notice of Guarding Requirement

      Alternatively, Mainline Rock contends that it had inadequate notice that the

mandatory safety standard was applicable because MSHA inspectors had never

previously cited the company for failing to guard its return rollers and instead

indicated that similarly located rollers did not need to be guarded. We reject this

argument for three reasons. First, the MSHA cannot be estopped from enforcing

its regulations simply because it did not previously cite the mine operator. See

Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1416-1417 (10th Cir.

1984). “[T]hose who deal with the Government are expected to know the law and

may not rely on the conduct of government agents contrary to law.” Id. at 1416

(quotation omitted). Therefore, even if Mainline Rock had been told it did not

need to guard the rollers, it would not be absolved of its duty to do so.

      Second, and perhaps more importantly, we have explained that regulations

provide adequate notice of the regulated conduct, and thus satisfy due process

requirements, “so long as they are sufficiently specific that a reasonably prudent

person, familiar with the conditions the regulations are meant to address and the


2
 (...continued)
because it was undisputed that no skirt boards were present at the location of the
accident. In this court, Mainline Rock claims that Harris actually testified that
there were skirt boards on the conveyor. The record indicates, however, that
Harris was referring to a “skirt board of the belt and [seven troughing] rollers
where the receiving box [was] at.” R., Vol. 3 at 320. He was not referring to the
location of the conveyor where Avitia was injured, which Mainline Rock’s photo
clearly depicts without any skirt boarding. See id., Vol. 4, Ex. R-6.

                                         -11-
objectives the regulations are meant to achieve, would have fair warning of what

the regulations require.” Walker, 156 F.3d at 1083-84. Here, we have little

difficulty concluding that Mainline Rock had adequate notice of the regulatory

requirements from both the plain language of the regulation and the explanatory

notice published by the MSHA. 3

      Third, Mainline Rock had actual notice that the standard applied to return

rollers. Indeed, contrary to Mainline Rock’s assertion, the record indicates that

the MSHA had previously warned the company to guard return rollers. An

MSHA supervisor testified that he instructed the inspector to direct Mainline

Rock to “start guarding return rollers.” R., Vol. 3 at 550. The inspector’s

subsequent report indicated that Mainline Rock was put on notice of the guarding

requirement. See id. at 551-53. And Mainline Rock’s operations manager

confirmed that the inspector had alerted them to the requirement for return rollers

and that the company actually installed twenty to thirty guards. Id. at 600. 4

3
       We recognize the Commission has previously determined that 30 C.F.R.
§ 56.14107(a) is ambiguous and failed to afford a mine operator adequate notice
of the extent of the guarding requirement. See Sec’y of Labor v. Alan Lee Good,
23 FMSHRC 995 (2001). That case is distinguishable, however, because the
ambiguity related to the extent of the guarding requirement, not whether a guard
was required at all, which is the issue we confront here. See id. at 1004
(“[regulation] does not specify the extent of guarding required or explain how
moving parts should be guarded”); 1008 (“[regulation] does not make clear how
or the extent to which the moving parts should be guarded”).
4
      Mainline Rock contends the government withdrew its argument relating to
the notice provided during a February 2009 inspection. See Pet’r’s Br. at 36 n.13.
                                                                    (continued...)

                                        -12-
      3. High Negligence

      Next, Mainline Rock contends the ALJ erred in concluding that the

company exhibited high negligence in failing to install a guard around the return

roller. The only argument advanced by Mainline Rock meriting discussion is that

the ALJ erred in dismissing its claim that its lock-out/tag-out policy should

reduce its level of negligence. The ALJ rejected this argument, finding that an

employee’s failure to follow lock-out/tag-out procedures has no impact on a

guarding violation. The ALJ recognized that Harris testified that Mainline Rock’s

lock-out/tag-out policy did not apply when an employee was shoveling under an

operating conveyor, which Harris readily admitted was a daily job. See R., Vol. 2

at 303-04. Given this evidence and other testimony establishing that Mainline

Rock knew of the guarding violation, the ALJ’s finding of high negligence is

supported by substantial evidence.

      B. 30 C.F.R. § 50.10 - Failure to Report Accident

      We next consider Mainline Rock’s challenge to the citation assessed for

violating 30 C.F.R. § 50.10, which, as is relevant here, requires a mine operator to


4
 (...continued)
The ALJ did not deem the argument withdrawn, however; rather, the ALJ
observed that the government simply withdrew an exhibit, P-11. See R., Vol. 3 at
553-54. The point is inconsequential in any event, because Mainline Rock’s
operations manager confirmed that the company was put on notice of the guarding
requirement at the February 2009 inspection. Mainline Rock’s assertion that such
notice was insufficient as to the particular roller involved here because it was not
identified with the twenty to thirty other rollers is foreclosed by our analysis.

                                        -13-
report an accident to the MSHA within fifteen minutes of an accident that has a

reasonable potential to cause death. The citation indicates that the accident

occurred at 12:50 PM, Harris learned of the accident at 1:00 PM, but the accident

was not reported to the MSHA until 2:42 PM. The text of the regulation states:

      § 50.10 Immediate notification

      The operator shall immediately contact MSHA at once without delay
      and within 15 minutes at the toll-free number, 1-800-746-1553, once
      the operator knows or should know that an accident has occurred
      involving:

      (a) A death of an individual at the mine;

      (b) An injury of an individual at the mine which has a reasonable
      potential to cause death;

      (c) An entrapment of an individual at the mine which has a
      reasonable potential to cause death; or

      (d) Any other accident.

      The Commission has previously explained the degree of latitude afforded

by § 50.10, balanced against its directive that mine operators act quickly to assess

the severity of an accident that may require reporting:

      Section 50.10 . . . necessarily accords operators a reasonable
      opportunity for investigation into an event prior to reporting to
      MSHA. Such internal investigation, however, must be carried out by
      operators in good faith without delay and in light of the regulation’s
      command of prompt, vigorous action. The immediateness of an
      operator’s notification under section 50.10 must be evaluated on a
      case-by-case basis, taking into account the nature of the accident and
      all relevant variables affecting reaction and reporting.

Sec’y of Labor v. Consol. Coal Co., 11 FMSHRC 1935, 1938 (1989).

                                        -14-
      Mainline Rock argues that the ALJ erred in affirming the citation because

when Olsen saw Avitia, there were no obvious signs of trauma to signal that he

had suffered an accident with a reasonable potential to cause death. And when

the life-flight medics informed Olsen of the nature of Avitia’s injuries, Olsen

called the MSHA within fifteen minutes. The ALJ rejected this argument, finding

that Olsen remained “remarkably non-inquisitive about Avitia’s condition and

injuries.” Joint. App. at 130. The ALJ explained that § 50.10 affords an operator

a degree of discretion, but Olsen did not “have the discretion to remain

uninformed about the circumstances of the accident and then assert that the

reasonable potential for the accident to cause death was unknown.” Id.

      The ALJ’s decision is supported by substantial evidence. After arriving on

scene, Olsen merely glanced at Avitia and left seconds later without asking a

single question. Despite calling 911 and noting that Avitia’s head was misshaped,

Olsen never sought an update on Avitia’s condition from Harris or anyone else.

Mainline Rock asserts that Olsen timely reported the accident after medics told

him that Avitia was “in tough shape and had some internal bleeding.” R., Vol. 3

at 484. But Harris recounted things differently. Harris said he was frustrated

with how uninformed Olsen was when, after Avitia was air-lifted from the mine,

he told Olsen that he would “be surprised if [Avitia] live[d] to make it to the

hospital.” R., Vol. 3 at 400 (internal quotation marks omitted). Olsen was

“shocked.” Id. at 401. And yet it was not until after Harris told him, “We need to

                                         -15-
get a hold of MSHA,” that Olsen finally made the call. Id. (internal quotation

marks omitted).

      Olsen had a reasonable opportunity for investigation but failed to seize it.

He easily could have asked what happened and immediately learned that Avitia

had been pulled through the roller. That knowledge alone would have alerted him

to the severity of the accident and the potential for death. Another miner at the

scene actually thought Olsen left to get more help while he continued “working

on trying to save [Avitia’s] life.” Id., Vol. 2 at 220-21. As the ALJ recognized,

the obvious circumstances of the accident would have triggered some minimal

degree of inquiry in a reasonable person, thus prompting a call to the MSHA. But

Olsen chose to remain blind to those circumstances. Olsen’s ignorance of the

severity of Avitia’s condition did not excuse Mainline Rock’s failure to timely

report the accident.

                                  CONCLUSION

      The ALJ’s civil penalty assessments are AFFIRMED.


                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




                                        -16-
