FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, D.C. 20004

January 8, 2013

Appearances:  Cheryl L. Adams, Esq., Office of the Solicitor, U.S. Department of Labor, San Francisco, California, for the Secretary;

                        JKristin R. B. White, Esq., Jackson Kelly PLLC, Denver, Colorado, for Sierra Rock Products.

Before:            Judge Manning

DECISION

            These cases are before me upon notices of contest and petitions for assessment of civil penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against Sierra Rock Products, Inc. (“Sierra Rock” or “Respondent”) pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et seq. (the “Mine Act”).  The parties introduced testimony and documentary evidence at a hearing held in Sacramento, California.  In lieu of filing post-hearing briefs, the parties presented oral argument at the hearing and filed statements of authority.  The cases involve five orders and three citations issued in May 2010 at its quarry and crusher in Tuolumne County, California.

I.   DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW

1.  Electrical Citations and Orders
   
   
   1.  Background and Summary of the Evidence.

            On May 18, 2010, MSHA Inspector William Edminister entered the property of Sierra Rock to inspect the premises.  (Tr. 43).  At that time, he had been an MSHA inspector for almost 4 years.  (Tr. 19).  Inspector Edminister had previously inspected Sierra Rock in November 2009 and issued several citations during that inspection.  (Tr. 28).  Sierra Rock is owned by Jim Hatler, and his son, Barry, is the mine foreman.

            During the May 18 inspection, Inspector Edminister observed a large, metal electrical panel that housed breakers.  (Ex. G-1 at 12; Ex. R-5).  The Inspector saw an electrical panel with switches on his previous inspection and he assumed that these switches on the door were designed to deenergize the electrical components on the inside of the panel before opening the door.  (Tr. 32-36).  Upon further inspection, Inspector Edminister learned that the switch did not deenergize the components on the inside of the panel. (Tr. 36).  Barry Hatler demonstrated that, when he or his father needed to shut off the power inside the panel, one of the two men would open the panel door, reach inside the panel while some of the parts were still electrified, and throw the breaker switches which are about 6 inches away from the exposed electrified components.  (Tr. 36, 39).  Barry Hatler informed Inspector Edminster that no protective equipment was used during this deenergizing procedure.  (Tr. 46). 

            The condition of the electrical panel and the operator’s procedure for deenergizing it led Inspector Edminister to issue Citation No. 8561252.  (Ex. G-1).  This citation, issued under section 104(d)(1) of the Mine Act, alleged that Sierra Rock violated 30 C.F.R. § 56.12040 because electrical components inside an electrical panel that was located outside were not “guarded or protected by location when needing to rack out the breakers for the system.”  The breaker for the #1 and #2 conveyors was located inside the panel where Barry or Jim Hatler would open the panel door to access the breaker, exposing them to a hazard of inadvertently contacting live 480-volt electrical connections.  The breaker switch was about 6 inches from the nearest energized connector.

            Inspector Edminister concluded that the condition was reasonably likely to cause an injury due to the close proximity of the breaker switch to electrified components.  (Tr. 40).  The Inspector also testified that nothing secured the hinged panel door once it was opened and that it could swing closed in windy conditions and bump the person trying to flip the breaker.  Id.  He determined that the violation was significant and substantial (“S&S”) because the cited condition was reasonably likely to result in a serious injury.  (Tr. 43).  Addressing the citation’s high negligence designation, Inspector Edminister testified that Sierra Rock was aware of the obvious hazard for a long period of time but failed to do anything to correct the condition.  (Tr. 42).  

            Inspector Edminister returned to Sierra Rock on May 19, 2010, and inspected an indoor electrical panel.  (Tr. 46).  This second electrical panel had the same setup as the panel cited the previous day and Inspector Edminister informed Jim Hatler that this panel violated the same safety standard.  Id.  Hatler told the inspector that this panel was cited 10 to 15 years earlier for a different condition, but when Respondent abated the violation the MSHA inspector accepted the configuration of the panel when he terminated that citation; it has been in the same condition ever since.  Id. Inspector Edminister consulted with his district office and determined that regardless of previous citations, a new citation should be issued because the current condition violated the standard.  (Tr. 47-48).   

            Later that day, Inspector Edminister informed Jim Hatler that he would issue a citation regarding the second panel and asked Hatler to deenergize the panel for documentation purposes.  (Tr. 49-50).  The inspector testified that as they approached the second panel, he reminded Hatler that the panel should be deenergized before he opened the door to the breaker panel.  (Tr. 50).  Inspector Edminister testified that Jim Hatler became angry, aggressively reached inside the panel, and flipped the breaker switches without deenergizing the panel.  (Tr. 50-51).  The inspector estimated that the breaker switch that Hatler flipped was about 12 inches away from the electrified components.  (Tr. 56; Ex. G-4 at 50-51, 53).  The inspector also testified that the door to the breaker panel did not open completely due to an obstruction and he concluded that the door could swing closed if opened in an aggressive manner.  (Tr. 62; Ex. G-4 at 52).  He explained that within the same small room containing the electrical panel there was a main power switch.  Throwing that switch would shut down the power, allowing Hatler to access the electrical panel safely.  (Tr. 71).  Jim Hatler’s actions and the setup of this electric panel led the inspector to issue Imminent Danger Order No. 8561259 and Order Nos. 8561260 and 8561261.

            In Imminent Danger Order No. 8561259, Inspector Edminister stated that he advised Jim Hatler to open the main breaker to deenergize the circuits inside of the panel before he flipped the individual breakers.  (Ex. G-3).  Hatler ignored his advice, aggressively opened the panel door, and reached into the panel to open three breakers.  “Jim demonstrated no regard for his own safety and was wearing no protective equipment/clothing.”  Id.

            Inspector Edminister issued Order No. 8561260, alleging a violation of 30 C.F.R. § 56.12017, because Jim Hatler did not deenergize the components inside the panel before reaching into it.  (Tr. 54-55; Ex. G-4).  The inspector testified that he thought that an injury was highly likely due to Hatler’s fast and aggressive manner of reaching into the panel.  (Tr. 51, 55). Inspector Edminister indicated that contacting 480 volts would cause a fatal injury.  (Tr. 56-57). He explained that the violation was the result of Sierra Rock’s reckless disregard because Hatler reached into the electrified panel immediately after Inspector Edminister reminded him to first deenergize the panel.  (Tr. 58).  Inspector Edminister stated that MSHA applies a heightened standard for a failure to deenergize power circuits because such violations are frequently cited as the cause of fatalities in mines.  Id.  Inspector Edminister also testified that the condition was S&S. Id.  He stated that Jim Hatler’s actions represented an unwarrantable failure because Hatler had a responsibility to ensure compliance at his mine and to set an example for other miners.  (Tr. 59).

            The inspector issued Order No. 8561261, alleging a violation of 30 C.F.R. § 56.12040 for the same reason that he issued Citation No. 8561252.  Inspector Edminister concluded that injury was reasonably likely due to the close proximity of the breakers to energized electrical components.  He was especially concerned because the panel door did not fully open.  (Tr. 67).  The inspector stated that the level of negligence was high because the operator was aware of the condition but took no corrective action.  During cross-examination, Inspector Edminister clarified that the operating controls were not far enough away from the energized components to be “guarded by location.”  (Tr. 98).  The inspector considered both electrical panels at issue to be “operating controls.”  (Tr. 72).  

            Jim Hatler has been the owner/operator of Sierra Rock “since around 2001.”  (Tr. 155). Hatler has worked for this mine in some capacity since 1981.  Prior to 2001, Hatler’s father and uncles operated the mine.  (Tr. 157).  

            Jim Hatler testified that the two electrical panels were in the same condition for over ten years and that other inspectors, including John Pereza, had examined the panels and found no problems.  (Tr. 157-59).  Hatler explained that he asked Inspector Edminister to look at the second panel to show the inspector that his procedures were safe and legal.  (Tr. 167).  Jim Hatler testified that he did not oppose correcting the condition, but enforcement actions were unwarranted because the panels were in the same condition during multiple inspections over a long period of time.  (Tr. 170).  

            With respect to Imminent Danger Order No. 8561259, Jim Hatler admitted that he refused to power-down the electrical panel before reaching inside to flip the breakers; Hatler also stated that he was angry with Inspector Edminister at the time.  (Tr. 170-71). During cross-examination, Hatler admitted that the mine’s deenergizing procedure created a minor risk.  (Tr. 186).  

            MSHA Inspector John Pereza, who is now a Conference and Litigation Representative,  testified that he inspected Sierra Rock in 1999, but that he had no memory of approving the layout of the mine’s electrical panels.  (Tr. 220, 223).  Pereza testified that a violation occurs when a miner opens a panel box and operates the switches within while the box is still energized.  (Tr. 232).  

2.  Summary of the Parties’ Arguments

            With respect to Citation No. 8561252 and Order No. 8561261, the Secretary cites three cases involving circuit breakers in close proximity to energized conductors.  In all three cases the judge found that the setup of the electrical panels represented a violation of 30 C.F.R. § 56.12040.  TXI Port Costa Plant, 22 FMSHRC 1305, 1313 (Nov. 2000) (ALJ); Nelson Quarries Inc., 30 FMSHRC 254, 310 (Apr. 2008) (ALJ); Moltan Company, 12 FMSHRC 149, 151 (Jan. 1990) (ALJ). 

            Sierra Rock denied the Secretary’s contention that 6 or 12 inches was not far enough to separate the breaker switches and electrified components.  (Tr. 247).  Sierra Rock argues that 30 C.F.R. § 56.12040 does not indicate how far the operating controls must be from electrified components.  It contends that it was simply Inspector Edminister’s personal opinion that this distance was insufficient.  (Tr. 247-48).  

            With respect to Order No. 8561260, the Secretary cites Mountain Cement Company, in which a miner was electrocuted while retrieving tools near an electrified component.  The operator in that case argued that section 56.12017 did not apply because the miner was not doing work on the circuits that killed him.  15 FMSHRC 1418, 1426 (July 1993) (ALJ).  The judge held that a violation of the standard exists once “a situation of close proximity exists[.]”  Id. The argument that  no “work” was actually being done at that time did not persuade the judge.  Id.

            Sierra Rock points out that section 56.12017 provides that “power circuits shall be deenergized before workis done on such circuits.”  Sierra Rock contends that there was no violation of the standard because even though Hatler failed to deenergize the electrical panel before reaching in, he was not performing “work” upon the panel.  (Tr. 252-53).  Sierra Rock argues that Hatler was simply demonstrating the mine’s normal lockout procedure for the inspector and this act was not “work.”  Id.

1.  Significant and substantial

            The Secretary argues that the violations were S&S because injury was reasonably likely to occur.  The Secretary compares Sierra Rock’s electrical panels to those in the Moltan case, in which the judge held that the violation was S&S because an injury was reasonably likely.  12 FMSHRC at 151.  The Secretary alleged that an injury was reasonably likely because the breaker switches had to be accessed about 3 times each week, the switches were only 6 or 12 inches away from electrified components, and no protective equipment was used.  (Tr. 235).  

            Sierra Rock argues that this practice was not reasonably likely to cause injury because the electrical components immediately around the breaker were covered.  (Tr. 249).  Also, Jim and Barry Hatler were aware of the presence of live components in the panels and an injury was not reasonably likely because they were the only people who opened the panels.  Id.  

      b.  Fair Notice, Unwarrantable Failure and Negligence

            The Secretary argues that this citation should be upheld as an unwarrantable failure because mine management showed a high degree of negligence.  Mine management was aware of the dangerous activity and allowed it to continue.  (Tr. 235-36).  The Secretary again cites TXI Port Costa Plant, in which the judge found the violation to be an unwarrantable failure because the mine management was aware that miners were opening the electrical panel and exposing themselves to live wires; the operator’s argument that its level of negligence was low because the condition had existed for 10 years without any previous MSHA citations did not persuade the judge.  22 FMSHRC at 1315.

            With respect to Order No. 8561260, the Secretary maintains that the level of negligence was reckless disregard because Hatler showed no regard for his own safety or the safety of Inspector Edminister.  Hatler demonstrated a high level of negligence by engaging in this behavior immediately after Inspector Edminister reminded him to power down the panel.  (Tr. 236-38).  

            Sierra Rock argues that the violation was not an unwarrantable failure because the operator was unaware that the electrical panel setup constituted a violation.  (Tr. 250).  It argues that in order for a violation to be considered an unwarrantable failure, the operator must engage in aggravated conduct.  Id.  Sierra Rock contends that it had no knowledge that the electrical panels were in violation and the operator was not on notice that greater efforts were necessary to comply with the standard.  (Tr. 250).  

            With respect to Order No. 8561260, Sierra Rock also maintains that the Secretary did not establish that the alleged violation was a result of its aggravated conduct.  (Tr. 253-54).  Hatler demonstrated the procedure for Inspector Edminister because Hatler believed that his actions did not violate section 56.12017.  Sierra Rock contends that Hatler did not open the panel in an aggressive manner.  Id.  Sierra Rock argues that a reasonably prudent person in the mining industry would have assumed that the electrical panels were in compliance because the panels were not cited during previous inspections.  (Sierra Rock’s Br. at 2).  

            Sierra Rock attempts to distinguish the present case from Nelson, in which the operator unsuccessfully tried to argue that the mine lacked notice of the standard because the problem was never cited in previous inspections.  (Sierra Rock’s Br. at 3; 30 FMSHRC at 295).  As opposed to Nelson, Sierra Rock argues John Pereza, a qualified to electrical inspector, inspected their mine numerous times but never cited that particular condition as a violation.  See Sierra Rock’s Br. at 3.  

            The Secretary argues that Sierra Rock had notice of the standard because the Secretary consistently interpreted that electrical panels violate the standard if they expose a miner to live wires.  Walker Stone Co., Inc., 156 F.3d 1076, 1084 (10th Cir. 1998) (holding that a mine owner should be on notice of a standard if there is a long history of the Secretary issuing citations for similar violations and the Commission has upheld such citations).  The Secretary also argues that even if a government agency inconsistently enforces a regulation, the agency is not estopped from future enforcement unless the agency demonstrates affirmative misconduct.  United States v. McCorkle, 321 F.3d 1292, 1297 (11th Cir. 2003).  

3. Discussion and Analysis.

            I find that the Secretary established a violation of section 56.12040 in Citation No. 8561252.  The breaker switch inside the electrical panel was an operating control.  The operating control inside the subject panel was located 6 inches from live electrical parts.  The photographs show that a “switch” on the outside of the panel door was not attached to anything.  (Ex. G-1 at 8, 11).  To abate the condition, Sierra Rock installed a new control device on the outside of the panel and labeled it “480 Volts.”  (Ex. G-1 at 14).   At the time the inspector issued the citation, the primary disconnect switch for Conveyors #1 and #2 was inside the panel near energized parts.  (Ex. G-1 at 11).  This condition clearly violated the safety standard.

            I also find that this violation was S&S.  An S&S violation is a violation “of such nature as could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) (2006). A violation is properly designated S&S, “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).  In order to establish the S&S nature of a violation, the Secretary must prove: “(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 will be of a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

            The third element is established if the Secretary proves “a reasonable likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based upon the particular facts surrounding the violation and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). 

            It is clear that Sierra Rock violated a safety standard that created a discrete safety hazard.  I also find that there was a reasonable likelihood that the hazard contributed to by the violation would result in an injury.  Although both Jim and Barry Hatler were aware of the live connections inside the box and carefully avoided touching these parts, unpredictable events occur.  The wind could blow the door against the operator’s hand, something could distract him, or he could be unusually tired and inattentive.  “Even a skilled employee may suffer a lapse of attentiveness, either from fatigue or environmental distractions.”  Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983).  Assuming continued mining operations, it was highly likely that someone would be seriously injured or even killed by accidently contacting a live connection when throwing the switch inside the electrical panel.  Consequently, I am modifying the gravity of the violation in section 10A of the citation from reasonably likely to highly likely.

            Inspector Edminister determined that the violation was the result of Sierra Rock’s high negligence and its unwarrantable failure to comply with the safety standard.  The Commission has defined an unwarrantable failure as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987).  Unwarrantable failure is defined by such conduct as “reckless disregard,” “intentional misconduct,” “indifference” or a “serious lack of reasonable care.” Emery Mining Corp., 9 FMSHRC at 2003; see also Buck Creek Coal, Inc., 52 F.3d at 136.  Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation.  See e.g. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).  Repeated similar violations are relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with a standard.  Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992).

            In Mainline Rock and Ballast, the Tenth Circuit Court of Appeals ruled that “MSHA cannot be estopped from enforcing its regulations simply because it did not previously cite the mine operator,” and 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 objectives the regulations are meant to achieve, would have fair warning of what the regulations require.’ ” Mainline Rock and Ballast, Inc., 693 F.3d 1181, 1187 (10th Cir. 2012) (quoting Walker Stone Co., 156 F.3d 1076, 1083–84 (10th Cir. 1991)).

            I find that the safety standard provided fair notice of its requirements, but a lack of previous enforcement must be considered when analyzing the negligence of an operator.  The violation existed for a considerable length of time.  Sierra Rock had not been put on notice that greater efforts were necessary for compliance.  The violation posed a high degree of danger and it was obvious to a trained electrician.  Taking into consideration all these factors, I find that Sierra Rock did not demonstrate aggravated conduct.  Jim and Barry Hatler were certainly negligent when they endangered themselves by turning the belts off and on in the manner cited, but they believed that, by being careful, they were acting in a safe manner that did not violate any MSHA safety standards.  The live connectors were at the bottom of the panel, while the breaker was at the top.  The fact that several MSHA inspectors examined the electrical panel during previous inspections and did not issue a citation or even comment on the condition helped lull Sierra Rock into believing that its procedures were safe and legal.  I find that Sierra Rock’s negligence was moderate with respect to this violation and I vacate the unwarrantable failure designation.  I also modify Citation No. 8561252 to a section 104(a) citation.  The Secretary proposed a penalty of $12,900.00.  I find that a penalty of $6,000.00 is appropriate for this violation given the high degree of danger posed.

            In Order No. 8561261, Inspector Edminister alleged an identical violation for the electrical panel controlling the stacker/bypass conveyor.  This panel was located inside a building, but the door to the panel did not open completely, which made access more difficult.  (Ex. G-9 at 69).  In this instance, the live components were 12 inches from the breaker switch. 

            For the same reasons discussed above, I find that the Secretary established an S&S violation of section 56.12040.  I find that an injury was highly likely and that Sierra Rock’s negligence was moderate.  I vacate the inspector’s unwarrantable failure determination.  Order No. 8561261 is modified to a section 104(a) citation with moderate negligence and a high degree of gravity.  The Secretary proposed a penalty of $13,600.00 for this violation.  A penalty of $6,000.00 is appropriate.

            The inspector also issued Order No. 8561260 at the electrical panel controlling the stacker/bypass conveyor.  Jim Hatler, in the inspector’s presence, opened the electrical panel without first deenergizing the power within the panel and flipped the two breaker switches to open the circuits to the conveyors.  Inspector Edminister specifically asked Hatler to deenergize the panel at the main breaker before he opened the panel door.  In anger, Hatler refused to do so and reached into the panel with his bare hand at least two times to shut down the stacker and the bypass conveyor.   Live components were about 12 inches below these breakers in the panel.

            This order alleges a violation of section 56.12017, which requires that power circuits be deenergized and locked out before “work is done on such circuits.”  The first issue is whether this order duplicates Order No. 8561260.  The fact that two citations may be abated with the same actions is not the focus of the Commission’s analysis in determining if citations are duplicative.  See Spartan Mining Company, Inc., 30 FMSHRC 699, 718 (Aug. 2008).  The Commission has held that citations are not duplicative if “the standards involved impose separate and distinct duties” upon an operator.  Western Fuels-Utah, Inc., 19 FMSHRC 994, 1003 (June 1997) (citing Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378 (Mar. 1993)).  I hold that the requirement to deenergize and lock out an electrical circuit before work is performed on that circuit is separate and distinct from the requirement to locate operating controls so that there is no danger of contacting energized conductors.  Consequently, the two orders are not duplicative.

            Sierra Rock maintains that it did not violate the lockout tag out provision because the procedure was to put a lock on the panel door once the two breakers were switched to deenergize the two circuits.  Thus, no work was performed on either circuit until the circuits were deenergized and the panel door was locked.  It argues that the act of deenergizing the circuits by throwing the breakers was not “work” as that term is used in the safety standard.

            For the reasons set forth below, I find that, under the facts of this case, using the circuit breakers inside the electrical panel to de-energize the circuits for the stacker and bypass conveyor circuits amounted to “work done on such circuits.”  Using the breakers to open the circuits controlling the stacker and bypass conveyor was the first step in starting work.  That first step constituted work on the circuits, even if the circuits were opened and locked out to shut down the stacker or the conveyor for mechanical maintenance.   Barry and Jim Hatler were exposed to a hazardous condition while performing the work of opening the circuits.

            For the reasons discussed above, the violation is S&S and an injury was highly likely considering continued normal mining operations.  For the same reasons as discussed above, Sierra Rock’s negligence was moderate and the violation was not the result of its aggravated conduct.  Order No. 8561260 is modified to a section 104(a) citation with moderate negligence and a high degree of gravity.  Given the above, the small size of Sierra Rock, and Sierra Rock’s history of previous violations, I find that the Secretary’s proposed penalty of $52,600.00 is too high.  A penalty of $6,000.00 is appropriate.

            Order No. 8561259 was issued under section 107(a) of the Mine Act.  The order alleges that when Jim Hatler “aggressively opened the [panel] door, reached into the panel to rack out another breaker located inside that disconnects the power to the ‘Stacker,’ [and] reached in a second and third time to rack out the other breaker which provides power to the ‘Bypass Conveyor,’ ” he “demonstrated no regard for his own safety. . . .”  (Ex. G-3 at 30).  The order goes on to state that an “oral 107a imminent danger order was issued to Barry Hatler, at 1416 hours on this date due to the unique circumstances that had taken place.”  Id. 

            Section 3(j) of the Act defines “imminent danger” as the “existence of any condition or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.”  “Imminent danger orders permit an inspector to remove miners immediately from a dangerous situation, without affording the operator the right of prior review, even where the mine operator did not create the danger and where the danger does not violate the Act or the Secretary’s regulations.  This is an extraordinary power that is available only when the ‘seriousness of the situation demands such immediate action.’ ”  Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991) (quoting from the legislative history of the Federal Coal Mine Health and Safety Act of 1969, the predecessor to the 1977 Act). 

            An imminent danger exists “when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal mining operations were permitted to proceed in the area before the dangerous condition is eliminated.”  Wyoming Fuel Co., 14 FMSHRC 1282, 1290 (Aug. 1992) (quoting Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989).  While the concept of imminent danger is not limited to hazards that pose an immediate danger, “an inspector must ‘find that the hazardous condition has a reasonable potential to cause death or serious injury within a short period of time.’ ” Cumberland Coal Resources, LP, 28 FMSHRC 545, 555 (Aug. 2006).  Inspectors must determine whether a hazard presents an imminent danger without delay, and an imminent danger determination must be supported “unless there is evidence that [the inspector] had abused his discretion or authority.”  Rochester & Pittsburgh Coal Co., 11 FMSHRC at 2164.

            While an inspector has considerable discretion in determining whether an imminent danger exists, that discretion is not without limits.  Under the circumstances, an inspector must make a reasonable investigation of the facts and must make his determination on the basis of the facts known or reasonably available to him.  As the Commission explained in Island Creek Coal Co.:

While the crucial question in imminent danger cases is whether the inspector abused his discretion or authority, the judge is not required to accept an inspector’s subjective “perception” that an imminent danger existed.  Rather, the judge must evaluate whether, given the particular circumstances, it was reasonable for the inspector to conclude that an imminent danger existed.  The Secretary still bears the burden of proving [her] case by a preponderance of the evidence.  Although an inspector is granted wide discretion because he must act quickly to remove miners from a situation that he believes to be hazardous, the reasonableness of an inspector’s imminent danger finding is subject to subsequent examination at the evidentiary hearing. 15 FMSHRC 339, 346-47 (Mar. 1993).  An inspector “abuses his discretion . . . when he orders the immediate withdrawal of miners under section 107(a) in circumstances where there is not an imminent threat to miners.”  Utah, Power & Light Co., 13 FMSHRC at 1622-23.

            I find that Inspector Edminister did not abuse his discretion when he issued the imminent danger order.  Jim Hatler was directly in front of the open electrical panel and he was angry.  He had just flipped the breakers to disconnect the power to the stacker and the bypass conveyor while the conductors at the bottom of the panel were electrified.  Given Hatler’s agitated state, it was not unforeseeable that he would flip the switches back on again to show the inspector how it was done.  Such an action would have exposed Hatler to electric shock hazards.  It was therefore reasonable for the inspector to remove Jim Hatler from the area to get him away from the open, energized electrical panel.  Inspector Edminister’s decision to issue an oral imminent danger order was eminently reasonable.  The written order simply memorializes his oral order.  Inspectors usually prepare written imminent danger orders after the miners are removed from the hazard.  Order No. 8561259 is AFFIRMED. 

   B. Other Citations and Orders

1. Background and Summary of the Evidence.

            On May 27, 2010, Inspector Edminister returned to Sierra Rock Products for further inspection.  (Ex. G-80).  As Inspector Edminister arrived at the mine site, he observed a miner standing on top of a shaker screen without fall protection.  (Tr. 102-03; Ex. G-7, at 82).  The inspector testified that if the miner fell, the distance of the fall would have been as little as 4 feet or as great as 17 feet, depending upon the location of the fall.  (Tr. 104-07; Ex. G-7, at 82-84). Inspector Edminister talked to Barry Hatler and informed him that the condition created an imminent danger, that an order would be issued (Order No. 8561267), and that the miner needed to come down from the screen.  (Tr. 121; Ex. G-7).  

            Inspector Edminister also issued Citation No. 8561268 because the miner had no fall protection.  (Tr. 105; Ex. G-8).  The citation alleged a violation of section 56.15005 and alleged that the miner was “grinding the edges of the guards just installed on the #3 Shaker Screen Feed Belt while standing on the top of the #3 Shaker screen.”  (Ex. G-8).  Inspector Edminister testified that an injury was highly likely as a result of this condition because the miner’s vision was obstructed by his welding face mask, the miner was close to the edge of the shaker, there was an electrical cord curled up near the miner’s feet which he could have tripped over, and the miner used an unsafe method of entering and exiting the screen.  (Tr. 109).  The inspector concluded that the potential injury could reasonably be expected to be fatal; he indicated that a 17-foot fall could cause a severe head injury or internal bleeding.  (Tr. 110).  Inspector Edminister determined that the operator was only moderately negligent because the operator had no knowledge that the miner was in an unsafe location and there was a fall protection harness hanging on the wall near this location.  (Tr. 110-11).  

            In conjunction with the fall protection citation, Inspector Edminister also issued Citation No. 8561269 for unsafe access.  (Tr. 112; Ex. G-9).  After seeing the miner on top of the shaker screen, Inspector Edminister asked the miner to demonstrate how he accessed that area.  (Tr. 112-13).  The miner showed the inspector that he climbed onto the screen using the screen mount and mid-rail of the shaker as steps.  (Tr. 113-14).  The citation alleges a violation of section 56.11001 because the “miner was not provided with safe access . . . while accessing the #3 Shaker Screen to perform maintenance on the screen feed head pulley guard that has just been installed.”  (Ex. G-9).  Inspector Edminister testified that at this entry location, the miner was only a foot or two away from edge of the shaker where there is a 17-foot fall.  (Tr. 114; Ex. G-9, at 104, 106).  The inspector concluded that this entry point location made injury highly likely.  (Tr. 115).  Like the previous citation, Inspector Edminister testified that injury from a 17-foot fall could reasonably be expected to be fatal and the level of negligence was moderate because the operator was unaware of the miner’s presence on the screen.  (Tr. 116-17).    

            Jim Hatler testified that there were no normal everyday work tasks which would require a miner to be up atop the shaker screen.  (Tr. 196).  Hatler testified that the method of entry used by the miner would be safer than using a ladder.  (Tr. 198).  Hatler explained that the side of the shaker is only 4 feet from the shaker platform, there are 2 steps, good hand holds, and ladders are not easy to secure.  Id.  

            In November 2009, Inspector Edminister was inspecting Sierra Rock when Barry and Jim Hatler asked him to look at some newly installed machinery to ensure that the area complied with the Act.  (Tr. 131-32).  Inspector Edminister pointed out a gap next to the walkway which was about 8 to 12 inches wide and about 10 feet long and he advised them to close the gap.  (Tr. 133; Ex. G-2, at 26, 27).  He did not issue a citation regarding this condition in November 2009 because there was no power hooked up to the area and it did not appear to be in use.  (Tr. 132-33).   

            When Inspector Edminister returned to the mine on May 19, 2010, he discovered that this gap near the walkway remained in the same condition.  (Tr. 133).  Inspector Edminister issued Order No. 8561257 under section 104(d)(1) of the Mine Act, concluding that an injury was reasonably likely because miners needed to access that area once a day or every other day and there were no signs to warn miners of the hazard.  (Tr. 134-35; Tr. 142).  The order alleges a violation of section 56.11012 and states that the #3 Shaker platform had “an opening on the right hand side along the shaker screen’s left side platform.”  (Ex. G-2).  Inspector Edminister testified that this gap could cause strain or sprain type injuries, leading to lost workdays or restricted duty for an injured miner.  (Tr. 136).  Inspector Edminister concluded that the level of negligence was high because the mine operator was aware of the condition for at least 6 months but took no corrective action.  Id.  

            A month or two prior to May 19, 2010, mine management noted in an internal workplace exam form that this condition needed to be fixed.  (Tr. 141-42; Ex. G-6 at 79).  Inspector Edminister issued Citation No. 8561264 because Respondent did not correct this known hazard in a timely manner.  (Tr. 140-41).  This citation alleges a violation of section 56.14100(b) and states that “safety defects noted on the mine operator’s workplace examination [record] from 5/01/2010 [were] not corrected in a timely manner.”  This citation addressed two conditions that Respondent did not fix in a timely manner: the gap near the walkway and moving machine parts that were not properly guarded.  Since this citation included the issue of moving machine parts, Inspector Edminister indicated that a potential injury could reasonably expected to be permanently disabling.  (Tr. 143).  The inspector concluded that injury was reasonably likely because miners needed to access the area daily.  (Tr. 142).  Inspector Edminister testified that the operator was moderately negligent because the operator documented the problem in an internal workplace exam form, but failed to correct the problem in a timely manner.  (Tr. 144).  

2.  Discussion and Analysis with the Parties’ Arguments


1.  Citation No. 8561268 - Fall Protection

            Sierra Rock did not contest the fact of the violation.  The Secretary argues that an injury was highly likely because the miner atop the shaker was wearing a welding mask which obstructed his vision, he was surrounded by tripping hazards, and he had no fall protection equipment.  (Tr. 240).  The Secretary contends that the injury could have been fatal because the distance of the fall could have been up to 17 feet, while even a 4-foot fall could result in serious injury.  (Tr. 240-41).  

            The Secretary compares this condition to two prior cases involving fall protection issues. In Dix River Stone, Inc., a miner was working 10 feet above the ground with no fall protection. Respondent argued that, if the miner fell, a platform surrounding the area which was only four feet below would catch him.  32 FMSHRC 1779, 1780 (Nov. 2010) (ALJ).  Respondent’s argument did not persuade the judge and he upheld the violation as S&S.  Id.  In another case cited by the Secretary, a miner was atop the 5-foot-high block of granite operating a drill.  The judge found that regardless of the low height, this was a S&S violation because a fall from that location could cause bruising, a spinal injury, or death.  26 FMSHRC 119, 120-24 (Feb. 2004) (ALJ).  The Secretary further argues that the lack of fall protection demonstrated moderate negligence.

            Sierra Rock argues that this violation is not S&S because the miner was working near the head pulley and at that location the shaker is surrounded by a platform that extends 4 feet horizontally and has a guardrail.  (Tr. 257-58).  Therefore, if the miner fell, he would only fall 4 feet and land on the platform.  Id.  Sierra Rock argues that, because neither Jim nor Barry Hatler were aware that the welder was on the screen and working on the screen was very unusual, it was not negligent.  In addition, it cites that it trained its employees to use fall protection. 

            I find that the violation is S&S, but that an injury was only reasonably likely instead of highly likely.  I also find that a fatal accident was not reasonably likely.  The most likely accident would result in lost workdays or restricted duty, although a permanently disabling injury was also possible.  I reach this conclusion because the miner was working at the opposite end of the screen where there was a serious falling hazard of 17 feet.  There was a substantial rim where the miner was working, making it less likely that he would fall five feet to the deck along the sides of the screen.  (Ex. G-8, at 91, 94).  The violation is S&S because the evidence establishes that there was a reasonable likelihood that the hazard contributed to by the violation would result in an accident in which there was a reasonably serious injury, assuming continued mining operations.  I have considered that the miner was wearing a welding mask and there were several tripping hazards in the area. 

            I find that the operator’s negligence was moderate to low.  I credit the testimony of Hatley that management was unaware that the miner would work atop the shaker screen without fall protection.  The Secretary proposed a penalty of $1,700.00 for this violation.  I find that a penalty of $1,000.00 is appropriate.

      b.  Citation No. 8561269 - Safe Access

            The Secretary emphasizes that the miner entered the shaker by using the spring mount as a step, without using the ladder for entry, and without fall protection.  (Tr. 241-42).  The Secretary argues that an injury was highly likely because this entry point near the spring mount is close to the edge of the shaker and the shaker is slanted.  Id.  The Secretary also noted that this section of the shaker is close to the area that is 17 feet above the ground and a fall from that height would likely be fatal.  Id.  The Secretary argues that the evidence supports the inspector’s moderate negligence determination.

            Sierra Rock argues that at this entry point, there are two parts on the side of the shaker which function as steps.  (Tr. 259).  Respondent claims because these step-like parts are built into the shaker, they are safe and more stable than a ladder.  Id.  Lastly, Sierra Rock argues that the miner accessed the shaker from the platform, so if he fell, he would have fallen onto the platform and a 17-foot fall was not reasonably likely.  Id.   Sierra Rock maintains that the alleged violation is not S&S and it was not negligent with respect to this alleged violation. 

            I find that the Secretary established a violation.  Although I understand that a ladder might pose safety hazards, the miner stepped over the rim onto the screen at the end immediately adjacent to the 17-foot drop-off.  If he were to slip, he could fall that distance to the ground.  (Ex. G-9, at 104,106).  Respondent did not provide safe access to the miner’s working place.

            I find that the Secretary established that the violation was S&S.  It was reasonably likely that the hazard contributed to by the violation would result in an accident in which there was a serious injury.  I credit the testimony of Inspector Edminister on this issue.  Although a fatal accident was possible, it was more likely that lost workdays or a permanently disabling injury would result from an accident.

            For the same reasons discussed with respect to Citation No. 8561268, I find that Sierra Rock’s negligence was moderate to low.  The Secretary proposed a penalty of $1,700.00 for this violation.  I find that a penalty of $1,000.00 is appropriate. 

      c.  Order No. 8561267 - Imminent Danger Shaker Screen

            The Secretary argues that Inspector Edminister did not abuse his discretion when he issued this imminent danger order.  An injury was highly likely because of the numerous tripping hazards, the seriousness of potential injury from a 17-foot fall, and the miner’s obstructed vision.  (Tr. 240).

            Sierra Rock opines that Inspector Edminister saw the miner on top of the screen but he did not order that miner down from the screen.  Instead, he went to the mine office and instructed Barry Hatler to remove the miner from the screen.  (Tr. 257).  Sierra argues that had the miner actually been in imminent danger, Inspector Edminister had the power to personally instruct the miner to come down from the shaker.  Id.  Sierra also argues that there was no imminent danger at the time the order was issued because the miner was working near the head pulley of the shaker and, at that location, there was no danger of a 17-foot fall because the miner was surrounded by a platform 4 feet below, which             had a guardrail.  Id at 257-58.  

            As discussed above with respect to Order No. 8561259, the issue is whether the inspector abused his discretion.  An inspector “abuses his discretion . . . when he orders the immediate withdrawal of miners under section 107(a) in circumstances where there is not an imminent threat to miners.”  Utah, Power & Light Co., 13 FMSHRC at 1622-23.  In this instance, the inspector did not immediately order the welder to come down from the screen.  Instead, he walked to the mine office to tell Barry Hatler to do so.  During cross-examination, Inspector Edminister explained why he proceeded in this fashion:

Q. Mr. Edminister, the imminent order that you issued that we see in 1267, when you first drove in and saw the employee up on the shaker, you didn't drive right over to him and tell him to get down?

A. I believe I was already parked at that time. I don't recall. I do remember seeing him. And so I went to notify Barry Hatler. Because, number one, by yelling up to a miner in a hazardous location with a danger of falling, you yell up to get down, for one, you are going to startle them, which could trigger them to lose balance and fall. So it is procedure to notify the agent or operator that is an imminent order and to have the operator get the miner down. Also, that way we are not directing the workforce.

Q. So you went over and asked Barry Hatler if he would get the miner down?

A. Yes. Let him know there is imminent danger order. Let him know what is going on. As he headed up there, if I remember correctly, he had already gotten him down.

(Tr. 120-21).  By asking Barry Hatler to get the welder down from the screen, the inspector delayed the welder’s withdrawal from the dangerous location.  There is no evidence as to the length of the delay, but it was likely to have been insignificant given the small size of the mine.  I find that the inspector did not abuse his discretion when he ordered the mine foreman to get the welder down from the screen rather than immediately ordering the miner down. 

            With respect to Citation No. 8561268, which the inspector issued in conjunction with the imminent danger order, I determine that the violation is S&S but I reduce the gravity from highly likely to reasonably likely.  I hold that Inspector Edminister did not abuse his discretion when he issued the imminent danger order.  He observed a miner at the top of a screen in a hazardous position and he determined that the miner must be removed from the hazard.  The concept of imminent danger is not limited to hazards that pose an immediate danger; the inspector has the discretion to issue such an order when he observes a condition that has “a reasonable potential to cause death or serious injury within a short period of time.”  Cumberland Coal Resources, 28 FMSHRC at 555.  Inspector Edminister reasonably believed that the welder faced a serious safety hazard and he did not abuse his discretion when he issued the imminent danger order.  Consequently, Order No. 8561267 is AFFIRMED.

   d.  Order No. 8561257 – Opening on Shaker Screen Platform 

            There is no dispute that the cited condition violated the safety standard; only the severity of the violation and the negligence of Sierra Rock are at issue.  (Tr. 254).  The Secretary argues that an injury was highly likely because miners accessed the area every day or every other day and that a miner could be injured if his foot were to be caught in this gap.  (Tr. 243).  The Secretary contends that the potential injury would have been a slip-and-fall or a strain or sprain- type of injury.  Either of these injuries could lead to lost work days or restricted duties.  Id.  

            The Secretary argues that the operator’s level of negligence was high because Inspector Edminister showed the hazard to Jim Hatler during a previous inspection, but Sierra Rock did nothing to correct it.  (Tr. 243).  In her brief, the Secretary cites a case in which there was a 2-by- 3-foot hole in the wooden planks in front of a scale house.  The judge held that this condition created an unwarrantable failure violation of section 56.11012 because the hole was obvious and was present for at least a week.  W.J. Bokus Industries, Inc., 15 FMSHRC 1800, 1804-1808 (July 8, 1993) (ALJ).  

            Sierra Rock argues that the third and fourth factors in a typical S&S analysis are missing in this case because the potential injury was not reasonably likely to occur and would not be serious.  (Tr. 254).  Sierra Rock contends that an injury was not reasonably likely because an employee who accesses the area “walks along the platform and greases part of the guard and leaves the platform . . . . [W]e don’t believe walking on a platform makes an accident more likely than less likely.”  (Tr. 254-55).  Sierra also argues that the strain or sprain-type injury described by the Secretary is not serious.

            Sierra Rock also maintains that the level of negligence should be lower because the task of fixing this problem was on the mine’s maintenance list.  It planned to fix the problem but had not done so because other maintenance items had higher priority.  (Tr. 255).  

            I find that the Secretary established that the violation is S&S.  The opening was quite substantial and was along the walkway around the screen.  (Ex. G-2 at 25-26).  Someone could easily stumble or have a foot fall through this opening while walking along the walkway performing routine maintenance. There was a reasonable likelihood that the hazard contributed to by the violation would have resulted in an injury of a serious nature, assuming continued mining operations.  I find that sprains and other similar injuries are of a serious nature.

            I also find that the evidence demonstrates that the violation was the result of Sierra Rock’s high negligence.  The inspector told Sierra Rock in November 2009 that the opening violated the safety standard and that the condition should be corrected.  Six months later the opening still existed.  As a consequence the operator demonstrated a high level of negligence.  I also hold that the operator’s indifference to the hazard amounted to aggravated conduct.  The violation had existed for at least six months, Sierra Rock’s management was aware of the violation and had been put on notice that greater efforts were necessary for compliance, the condition was obvious, and although it did not pose a high degree of danger, it presented a serious safety risk.  The Secretary proposed a penalty of $4,000.00 for this violation.  I find that a penalty of $2,000.00 is appropriate.

   e. Citation No. 8561264 – Safety Defects

            This citation alleges that the operator failed to fix the gap near the walkway in a timely manner and that it did not install proper guarding around the shaker’s feed conveyor.  Sierra Rock admits the violation as to the gap next to the walkway but disputes that the condition of the guard violated the safety standard.  (Tr. 255-56).  First, Jim Hatler was under the impression, based upon a discussion during the previous inspection, that the guard already protected against inadvertent contact so no changes were needed.  (Tr. 256).  Second, miners do not access this area while the shaker is running, so there is no risk of a permanently disabling injury.  Id.  The Secretary argues that it is reasonably likely that a miner could suffer a permanently disabling injury from entanglement in the machinery and that the machinery does not necessarily have to be running for that to happen.  Id.  Sierra Rock also argues that the degree of gravity should be reduced from “Permanently Disabling” to “Lost Workday,” because the citation should only apply to the gap, not the guarding issue.  Id at 256.

            The evidence establishes that both conditions were previously noted as needing correction during a previous MSHA inspection.  (Tr. 140-41).  Inspector Edminister conducted that inspection in November 2009.  On May 1, 2010, both conditions were listed as needing attention on the company’s workplace exam record.  (Ex. G-6 at 79).  I find that the Secretary established a violation as to both the opening in the platform and the inadequate guarding on the #3 shaker screen feed conveyor.  I credit the testimony of the inspector on this issue.  Six months had passed since Respondent discussed the conditions with the inspector and they also were noted during a workplace exam about 20 days prior to this inspection.  Sierra Rock did not correct the conditions in a timely manner and it took no action to danger off the conditions until they could be fixed.  I also credit the inspector’s testimony as to the hazards presented and affirm his gravity findings.  The Secretary proposed a penalty of $873.00 for this violation.  I find that a $500.00 penalty is appropriate.

            Sierra Rock argues that the Secretary’s proposed total $87,000.00 penalty for the citations and orders that were not settled in these cases would have a negative impact on its ability to continue in business and that the tax returns provided at the hearing are sufficient proof on this issue.  (Tr. 259; Sierra Rock’s Br. at 3-4).  Respondent cites Nats Creek Mining Co., in which the administrative law judge determined that a mine owner provided insufficient proof of the mine’s financial hardships.  17 FMSHRC 115, 132 (Feb. 1995) (ALJ).  The Nats judge noted that there were no company records or tax returns provided as proof of the hardship.  Sierra Rock argues that providing such returns would have been sufficient proof.  Id.  The Respondent also cites two cases in which, after the hearing, the ALJ allowed the operator to produce audited financial documents as proof of financial hardship.  Johnco Materials, Inc., 33 FMSHRC 1431, 1433 (June 2011); Apex Quarry, LLC, 2011 WL 6962441 (Dec. 2011) (ALJ).  

            At the hearing, Sierra Rock introduced its corporate tax returns for the periods of July 2010 through June 2011 and July 2009 through June 2010.  (Ex. R-12; Ex. R-13).  These returns, which were prepared by an accounting firm, show a loss of $1,500.00 for the fiscal year ending in June 2011 and no income for the fiscal year ending in June 2010. 

            The Secretary contends that the burden lies with the Respondent to prove that penalties will negatively affect the mine’s ability to stay in business and in the absence of such proof it is presumed that no such adverse effect would occur.  Sellerburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983) (citing Buffalo Mining Co. 2 IBMA 226 (1973)).  The Secretary argues that the tax returns provided by Sierra are insufficient evidence.  (Tr. 245).  The Secretary cites cases holding that tax returns and financial statements which show that the mine suffered recent financial losses are not sufficient to reduce penalties.  Spurlock Mining Inc., 16 FMSHRC 697, 700 (Apr. 1994) (citing Peggs Run Coal Co., 3 IBMA 404, 413-14 (1974)).  

             The Secretary also cites the Mine Act’s legislative history in arguing that the mine’s ability to stay in business is only one factor the judge should consider and that penalties should not be reduced based upon that factor alone.  (Sierra Rock’s Br. at 8).  The Secretary points out that the size of the penalties should be “sufficient to make it more economical for an operator to comply with the Act's requirements than it is to pay the penalties assessed and continue to operate while not in compliance.”  S. Rep. No. 95-181 at 40-41 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977 at 628-29 (1978).  The Secretary argues that the main purpose of the penalties is to act as a deterrent and therefore the penalties should not be reduced. (Sierra Rock’s Br. at 8).

            As I have noted in other cases, the mining industry is cyclical.  A company may have good years followed by bad years.  Submitting a few tax returns is not sufficient evidence to establish that a given penalty will have an adverse effect on that operator’s ability to continue in business.  In this instance, it appears that Sierra Rock broke even in 2010.  I do not reduce the penalty amounts based upon the ability to continue in business criterion in these cases.

II.  SETTLED CITATIONS

            The following citations and orders at issue in these cases settled at the hearing: Citation No. 8561254, Citation No. 8561256, Order No. 8561258, and Order No. 8561262.  The parties proposed that the two orders be modified to section 104(a) citations with moderate negligence.  I approve these settlements.  The ordering paragraph below includes the settlement amounts. 

III .  APPROPRIATE CIVIL PENALTIES

            Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an appropriate civil penalty.  I have reviewed the Assessed Violation History Report, which is not disputed.  (Ex. G-11).  Sierra Rock has a history of 13 violations in the 15 months preceding May 27, 2010, and three of those violations were designated as S&S.  At all pertinent times, Sierra Rock Products, Inc. was quite small.  In 2010, it worked 9,461 man-hours and employed about three people including Jim and Barry Hatler.  I have reduced the penalties because of Respondent’s small size.  The violations were abated in good faith.  The gravity and negligence findings are set forth above.

IV.  ORDER

            Based upon the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the following civil penalties:

            Citation/Order No.                              30 C.F.R. §                             Penalty

WEST 2010-1589-M

              8561264                                            56.14100(b)                           $500.00                                    
              8561254                                            56.9100                                   314.00            
              8561256                                            46.11(b)(7)                              314.00            
             
WEST 2011-315-M

              8561262                                            46.3(a)                                     403.00                        

WEST  2011-316-M

              8561268                                            56.15005                              1,000.00
              8561269                                            56.11001                              1,000.00                                                       

WEST 2011-747-M

              8561252                                            56.12040                              6,000.00            
              8561257                                            56.11012                              2,000.00
              8561261                                            56.12040                             6,000.00            
              8561258                                            56.14107(a)                             112.00            
           
             
WEST  2011-1029-M

              8561260                                            56.12017                              6,000.00
  
                                    TOTAL PENALTY                                             $23,643.00

            For the reasons set forth above, the citations are AFFIRMED or MODIFIED as set forth above.  Sierra Rock Products, Inc., is ORDERED TO PAY the Secretary of Labor the sum of $23,643.00 within 40 days of the date of this decision.   The two contest proceedings are hereby DISMISSED.

/s/ Richard W. Manning

Richard W. Manning

Administrative Law Judge

Distribution:

Cheryl L. Adams, Esq., ,Office of the Solicitor, U.S. Department of Labor, 90 Seventh Street, Suite 3-700, San Francisco, CA 94103-1516 (Certified Mail)

Kristin R. White, Esq., Jackson Kelly, PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202 (Certified Mail)

RWM