FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 New Jersey Avenue, NW, Suite 9500

Washington, DC 20001-2021

Telephone: 202-434-9933

January 24, 2011

                   :                                                                      

    Decision

Appearances:              Alicia Truman, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Mine Safety

                                    Kevin Watkins, Esq., General Counsel, Lakeview Rock Products, North  Salt Lake, Utah.

Before:                     Judge Moran

            This matter, originally involving many citations, was reduced to two matters at the hearing, which was held on August 2, 2011 in Salt Lake City, Utah. The first, Citation Number 6425423, alleges that Lakeview Rock Products, a sand and gravel operation, employing a single bench, failed to provide ample warning to persons within the blast area, in advance of blasting, and will be referred to as the “blasting violation.” The second, Citation 6580016, addresses the action required where hazardous ground conditions are present. That matter, which will be referred to as the “highwall violation,” asserts that miners were allowed to work below a hazardous highwall. For the reasons which follow, both citations are affirmed, along with the special findings, and the associated Contest Proceeding is dismissed.

The Blasting Violation; Citation Number 6425423, alleging a violation of 30 C.F.R. § 56.6306(f)(1) by failing to provide ample warning to those within the blast area.

            As its title suggests, Section 56.6306 Loading, blasting, and security, addresses various safety aspects of blasting. At issue here is subsection (f)(1) which provides:

                        Before firing a blast (1) Ample warning shall be given to allow

                        all persons to be evacuated; (2) Clear exit routes shall be provided

                        for persons firing the round; and (3) All access routes to the blast

                        area shall be guarded or barricaded to prevent the passage of persons

                        or vehicles.

(emphasis added)

“Blast area” is defined as: “[T]he area in which concussion (shock wave), flying material, or gases from an explosion may cause injury to persons. 30 C.F.R. § 56.2 Definitions. The definition continues with the following guidance: “In determining the blast area, the following factors shall be considered: (1) Geology or material to be blasted. (2) Blast pattern. (3) Burden, depth, diameter, and angle of the holes. (4) Blasting experience of the mine. (5) Delay system, powder factor, and pounds per delay. (6) Type and amount of explosive material. (7) Type and amount of stemming. 30 C.F.R. § 56.2. The definition of “blast area” can be sharpened to focus on the issue presented here: the flyrock. Using that approach, the applicable portion of that definition is “the area in which flying material from an explosion may cause injury to persons.” While it is indisputable, under the plain text of the guidance, that the enumerated factors are to be considered, the list does not purport to exclude other relevant factors in determining the blast area. Thus the list, while helpful, does not represent an exclusive list of the factors that are to be considered when conducting the ultra-hazardous activity of blasting. Restated, one must not lose sight of the fact that the definition of “blast area” cannot be overtaken simply by a list of factors that are to be considered.

            The facts are not in dispute; the issue here is the applicability of those facts to the cited provision. On April 10, 2009, at about 2:45 p.m., Lakeview “conducted a blast in an area high up on the east end of the mine’s highwall.” Sec. Br. at 3. That blast produced flyrock which penetrated the roof of a nearby residential home which was located off the mine site. The flyrock then proceeded to travel through the home’s attic and ended up in the home’s living room. That home, a new residence, some 600 to 700 yards away from the detonation site, was situated above the mine’s highwall. As there is no dispute that the flyrock came from Lakeview’s blast and that it penetrated the house, the only issue is whether the standard applies to these admitted circumstances.

            The event was investigated by MSHA Inspector Marc Shadden. He determined that an area of the blast had “rifled,” and that this resulted in the flyrock reaching the residence. Factoring the location of the blast, the proximity of the residence and the risk of flyrock, Inspector Shadden concluded that the home was within the potential blast area. Once that determination was made, that the home was within the blast area, ineluctably the conclusion was reached by MSHA that, as it was undisputed that the homeowners were not given any warning before the blast was detonated, a violation of the standard occurred.

The Parties’ Contentions.

            The Secretary contends that, to comply with the standard, there must be ample warning given to those within the “blast area.” Sec. Br. at 4. She looks to the definition of that term, “blast area,” which, as previously noted, is a defined term, and concisely expressed as “the area in which concussion (shock wave), flying material, or gases from an explosion may cause injury to persons.” The Secretary emphasizes that in this instance there is no need to speculate whether the flyrock could have caused an injury, since the rock not only reached the residence but pierced the structure itself. As damage actually happened here, the facts go beyond the situation where such material may cause injury, progressing to the point where it did cause damage to a residential home, and therefore the Secretary contends that the home was indisputably within the blast area. As ample warning must be given to those within the blast area, and Lakeview concedes it gave no warning at all to the residence’s occupants, the Secretary urges that the violation has been established.

            For its part, Lakeview contends that, at the time of the blast, it had no reasonable basis on which to extend the blast area to include the home, even though it acknowledges that the flyrock penetrated the structure’s roof, proceeded through the attic and ended up in the family’s living room. Lakeview relies upon the recounting of its blaster, who stated that the blast in issue was “nearly identical to prior blasts in the same area” and consequently it contends “that [the blaster, Robert Hylemon] acted reasonably and prudently with the ‘blast at issue.’” Lakeview Br. at 2-3. Accordingly, Lakeview asserts that, as the blast in question was only ten feet away from the previous blast and nearly identical to that earlier blast, it would be unreasonable to hold the mine liable under the cited standard and to expand the blast area simply because of the flyrock result here. Id. at 3. Thus, ultimately, it is Contestant’s position that the Citation should be vacated on the basis that the Secretary failed to meet her burden of proof. Id. at 4.

            In its Reply, the Secretary contends that Lakeview has missed the central point that its failure was not correctly determining the actual blast area. Sec. Reply at 1. Thus, Lakeview’s notifying those within the blast zone it identified means nothing if it incorrectly identified the zone itself. Instead, the Secretary contends that the appropriateness of a blast zone is a

blast-by-blast test, employed by an experienced mine blaster. In responding to Lakeview’s claim that the blast was “not unusual” from the other blasts it had detonated, the Secretary disputes that characterization, arguing that the location of the blast was certainly unusual due to its being located in the upper northeast corner of the highwall and so close to the recently built residences. The Secretary points out that even Lakeview’s Hylemon acknowledged that proximity to residences is a factor a blaster must consider. Yet Hylemon, the one who needed to know such information, did not even know of the existence of the nearby housing. A prudent blaster, the Secretary submits, should have examined the top of the highwall and thereby become informed as to what was above the spot where the blast was detonated. Without taking that action, Lakeview cannot claim that it made a proper assessment of the location of the blast. Id. at 2.

            The Secretary also challenges the claim by Lakeview that the incident in question was the only such occurrence by pointing out that the blaster, not learning until the next day of the damage to the house and being informed of this event by others, is hardly an authority on where flyrock had landed on other occasions. Last, the Secretary maintains that Lakeview misconstrues the Commission’s holding in Hobet Mining, arguing that the case stands for the principle that an experienced blaster must consider all relevant factors in determining the blast area. Here, it contends that Lakeview’s Hylemon failed to carry out that duty by not considering, in fact not even knowing, of the proximity of the blast to the nearby residences. Sec. Reply at 3.

Discussion: Applicability of the standard to the uncontested facts.

            As Hobet Mining, 9 FMSHRC 200 (1987) was cited by both sides, and because that decision does address the duties attendant to blasting, it is a good starting point. Though a different standard was cited, 30 C.F.R. § 77.1303(h), it similarly provided that “[a]mple warning shall be given before blasts are fired.” The standard also required that “[a]ll persons shall be cleared and removed from the blasting area” with “blasting area” itself defined as “the area near blasting operations in which . . . flying material can reasonably be expected to cause injury.” 30 C.F.R. § 77.2(f). In Hobet, the blast generated flyrock and one miner was struck by it, becoming paralyzed below his chest. The Commission expressed in that case that the Secretary must establish that the mine failed to properly consider and employ the factors which a reasonably prudent person, familiar with mine blasting and the protective purposes of the standard would have used, concluding that the Secretary did not meet that evidentiary requirement. Unlike the present case, in Hobet the inspector failed to ask if the blaster considered the various factors which included things like the amount and type of explosive used, the depth of the holes that constitute the shot, and the topography. Against that shortcoming the blaster testified, without contradiction, that he did take into account the various factors.

            Hobet is distinguishable from the present matter. As noted, Hobet vacated the order and citation on the basis that the Secretary failed to prove the alleged violation of section 77.1303(h). Per that decision, the determination of the blasting area depends upon a number of variables. These include, but are not limited to, factors such as the results of prior shots, the depths of holes for the shots, the experience of the blaster and the topography. The Commission expressly added that, while it identified some of the variables to be considered, its identification of some variables was not limited to those it mentioned. Id. at *203. Unlike in Hobet, where the blaster was not asked about the factors he considered before the blast, in the present matter Hylemon, Lakeview Rock’s blaster, was asked about his consideration of the nearby residences and he admitted that not only did he not consider the nearby homes, he did not even know of their presence, let alone their proximity. Thus, when the blaster was asked if he had calculated how nearby any residence was to where he was blasting and if he knew that a house had recently been built at that the location where the flyrock landed, he responded that he did not. Tr. 98. Nor did he go to the top of the pit where he was blasting and look around to see if anything new was up in that area. Tr. 99. The blaster also acknowledged the authoritativeness of the reference book, “Explosives and Rock Blasting,” though he was only “vaguely” familiar with it. Tr. 102-103. Importantly, the blaster agreed that “proximity to residences” is something a blaster should consider when planning a blast. Tr. 104.

            Although the Court considers it a side issue, the Secretary believes that the terms “blasting area” and “blast area” are distinguishable, asserting that the former has a limiting consideration – to flying material that can be reasonably expected to cause injury, but that the latter term, the one employed in section 56.6306, is broader in its application, encompassing the area where flying material may cause injury. Sec. Br. at 5. Thus, the Secretary asserts that there is no “reasonable expectation” limitation applicable to a “blast area.” Although asserting that there is a distinction, the Secretary alternatively submits that the circumstances in this case meet the “blasting area” definition anyway. It maintains that it has demonstrated the presence of the factors a reasonably prudent person, familiar with mine blasting and the standard’s protective purpose, would have considered, and which the Respondent failed to consider here. Such a reasonably prudent person engaged in blasting, it maintains, would have considered “the proximity of the blast to residences.” Sec. Reply at 3.

            In the Court’s view, although, strictly speaking, “blast area,” the term employed in this litigation and “blasting area,” the term examined by the Commission in the Hobet Mining case, do not share identical definitions, it is not easy to apply their differences. This is because, once one moves beyond these similar, albeit not identical, expressions, it becomes necessary to practically apply them. When so applied, in the Court’s view, there is no practical difference between the terms. This is because, the expression “ may cause injury” cannot reasonably be considered to apply to any possibility no matter how small. The effect of that conclusion is that, under Hobet, determining the “blast area” or the “blasting area,” both terms must mean the area where there is a reasonable expectation of an injury occurring.

            It is worth remembering that this case is not in the realm of speculation. Thus, there is no argument disputing that the blast occurred, that flying material left the mine site, that it landed on the house with sufficient force to penetrate the residence’s roof, not coming to rest until it reached the family’s living room. Sec. Br. at 4. The Secretary therefore contends, and the Court agrees, those undisputed facts demonstrate that the home was within the blast area. That being the case, the Respondent was required to give ample warning to the homeowners and it is undisputed that the homeowners were given no warning at all.

            Based on the foregoing discussion, the Court finds that the standard was violated.

            Although not the basis for this determination, the Court also considers that it would be reasonable to conclude that, absent a defiant employee’s intentional act, despite an ample warning to allow evacuation from the blast area, whenever there is injury to persons or structures housing persons resulting from blasting, liability under this blasting - ample warning and evacuation - standard should be deemed as established. Remembering that, under the standard, ample warning shall be given before blasts are fired and that all persons shall be cleared and removed from the blasting area to protect them from blasting flyrock, to allow all persons to be evacuated, it is clear that the intent of this standard is to ensure that miners are not injured from flyrock. Yet, in Hobet Mining, the Commission found no violation had where the blaster and two crew members “remained in the open . . . to detonate and observe the blast,” and a miner “sustained severe permanent injuries, including paralysis below his chest,” because of the lack of specific evidence to show that Hobet failed to consider “the various factors that affected flyrock generation.” Hobet at 203. Similarly, in Secretary v. Western Mobile New Mexico, Inc., 17 FMSHRC 2222 (December 18, 1995, ALJ), when an individual was “seriously injured” from flyrock, when he stood next to a pickup truck at the time of the blast, and the intended “shelter” was to take cover behind a pickup truck, the violation was vacated on the grounds that the blaster considered the factors a reasonably prudent blaster would have considered.

            These outcomes can be viewed as unusual, at least when individuals sustain injuries from blasting, and there is no willful defiance to take cover from flyrock. Such situations may be distinguished from situations where no injuries result from a blast and there is only speculation as to whether the blasting factors were fully considered. The non-liability determinations are unusual because, apart from this mine safety context, blasting is typically described in other liability contexts as an activity of an “ultra-hazardous nature” for which strict liability attaches for any resulting harm. In holding those conducting blasting accountable, courts frequently invoke the the principle of res ipsa loquitur. These principles have been long standing. For example, in Rote v. Bellefonte Furnace Company, 37 Pa. C.C. 315, 1906 WL 2951 (Pa. Comm. Pl.) (1906), homeowners close to a quarry had their dwellings hit by rocks produced by blasting. The mine failed to give notice of its blasting to the homeowners. As with Lakeview, the mine contended that it had “conducted [itself] along the safest and most careful lines known to the business.” Id. at * 1. However, the Court observed that “[s]uch blasting without ample warning is always dangerous, and might be fatal,” and it concluded that liability attached regardless of whether any negligence was involved. Id. at *3. Similarly, in Allegheny Coke Co. v. Massey, 174 S.W. 499, 163 Ky. 792, (March 26, 1915), the Pike County Circuit Court held that where blasting cast a rock upon one’s dwelling, the mine contractor was liable, regardless of negligence. There, ample warning was given before the blast and the family ran into their home. Unfortunately a rock went through a window, blinding a child in one eye. The point is that, where the activity is blasting, liability was found to be absolute. The Court observed, “it makes no difference whether precautions are used or not to prevent the injury . . . the act itself is a nuisance.” Id. at * 500.

            Thus, the cases involving blasting examine only whether harm resulted and hold those conducting that activity strictly liable. Accordingly, in cases such as Garland Coal & Mining Company v. Few, 267 F.2d 785 (10^th Cir. 1959), an action by a landowner for damages from the adjacent mine’s blasting activity was upheld on a strict liability basis and that strict liability extended to more than flyrock, as it included damages from concussion and vibration. This has been the longstanding result in American jurisdictions where blasting operations produce harm; there is no duty to establish evidence of a breach of a standard of care to establish liability for harm from such activities. Smith v. Yoho, 324 P.2d 531, 533 (Okla. 1957), Ward v. H. B. Zachry Const. Co., 570 F.2d 892, 895-96 (10^th Cir. 1978). Thus, it seems an anomaly that, in the context of the remedial statute that the Mine Act is, liability for harm associated with blasting activity would be more burdensome to establish than in a common law proceeding. Obviously, adopting such a view would require a revisiting of the Hobet standard. However, if a strict liability approach were to be applied in instances such as Hobet and Western Mobile, mine operators would likely react with a more stringent approach in terms of these blast warning standards and situations such as the significant injuries in those cases would likely be reduced. So too, homes, such as the residence in this case, would be less likely to be assaulted by flyrock from blasting.

Penalty Determination.

Significant and Substantial finding.

            As noted, the blasting violation was marked as “significant and substantial” (“S & S”) by the issuing inspector. An S & S violation is described in section 104(d)(1) of the Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). 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). The Commission has explained that in order “to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor 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 in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

            In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance, offering “[w]e have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984). This evaluation is made in terms of “continued normal mining operations.” U.S. Steel, 6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

            Inspector Shadden marked Citation No. 6425423 as “S & S” upon his conclusion that the facts showed that there was a reasonable likelihood that the hazard contributed to would result in an injury of a reasonably serious nature. Speaking to the first two elements identified in Mathies Coal, the Secretary supports her assertion that this matter was significant and substantial based upon the establishment of the violation and that the risk of being struck by a rock from the blast contributed to a discrete safety hazard. As to the last two Mathies’ elements, the Secretary maintains that the lack of a warning denied the homeowners the chance to evacuate and thereby created a reasonable likelihood that the hazard would result in an injury. It is the Secretary’s position that the risk of flyrock is inherent whenever blasting is involved and, given that, the Respondent should have considered both that inherent risk along with the proximity of the residences to its blast site. Had those factors been appropriately considered in the equation, the Respondent would have been prompted to include the homeowners among those to be warned in advance. The Secretary asserts that the fourth Mathies’ element was clearly met, as the failure to provide an advance warning of the blast created a reasonable likelihood of a fatal accident. Apart from GX 7, which is fatality report arising from an instance when flyrock from a blast struck a miner, the Court notes again that the fact the rock was able to go through the homeowner’s room and crash through to their living area more than suffices to demonstrate this element. A force of that size, creating the damage it did, obviously presented the risk of a serious injury. Accordingly, based on the above discussion, the Court finds that the violation was established as “significant and substantial.”

Degree of Negligence

            Noting that the Part 100 regulations define “moderate negligence” as the situation when a mine operator did know or should have known of the violative condition or practice but for which there are mitigating circumstances, the Secretary maintains that when Lakeview moved to a new location for blasting, it was incumbent upon them to take steps to ensure that everyone in the blast area was adequately warned. Sec. Br. at 10. Instead, Hylemon not only failed to calculate and therefore consider the proximity of the residences to the blast site, he did not even know the homes were there. Had he examined the area above the top of the highwall, as he should have, he would have discovered the home sites. Further, while Hylemon asserted, in effect, that this was a one of a kind event and therefore, implicitly, unpredictable, the Secretary, as previously noted, observes that even after the event, Hylemon had no idea that flyrock had hit a residence until mine management so informed him the following day. Therefore, his testimony that this event was unique is unsupported. Given these undisputed circumstances, the Court agrees that Lakeview’s failures constituted at least moderate negligence.

            Based upon the Hobet standard, the finding that the violation was significant and substantial, and the result of at least moderate negligence, the remaining statutory criteria under Section 110(i) of the Mine Act also have been duly considered. Lakeview is a small to moderate operation, and its violation history is low to moderate. Exhibit A, associated with petition. Abatement was in good faith and there is no assertion that the penalties would affect the Respondent’s ability to continue in business. Upon consideration of those factors and the negligence and gravity, for which the Court believes the negligence is on the high end of moderate, approaching high negligence, and for the other aspects, as discussed above, the Court imposes a civil penalty of $1,000.00 (one thousand dollars) for this violation, an amount it considers to be a minimal assessment under these circumstances.

Citation No. 6580016. Alleged violation of 30 C.F.R. 56.3200.

            During a regular inspection on August 31, 2009 at Lakeview Rock’s mine, MSHA Inspector Mary Busse observed what she believed to be an unstable highwall at the southeastern end of the mine. Her determination was based upon the presence of loose rock and the absence of an angle of repose. She also learned from a Lakeview supervisor that miners had been loading in the area at the base of that highwall only ten minutes before she observed the condition. Tr. 123.

            The Secretary notes, and it is uncontested, that Lakeview’s practice regarding the highwall is to bulldoze material from the top of the bench to the pit floor. This material then comes to rest at an angle of repose such that it stable and therefore safe for the day shift to then load it. Inspector Busse stated that on August 31^st the material was not at an angle of repose. See, GX 8, GX 10, p. 1, as marked by a dotted line and marked with a “C.” Adding to this, the Inspector observed a sheer vertical face of about 50 feet. Inspector Busse stated that there were several areas of loose material on the vertical face, including many rocks of football or basketball size. To these observations the Inspector stated that there was also a “crack,” also described as a “slip area,” on this wall, about 75 feet above ground level. This was significant to the Inspector because there was unstable material below that crack which could come down, posing a hazard to those below.

            In addition to Inspector Busse’s observations, MSHA Inspector Shane Mier also testified on the subject of the highwall. Mier was present on the same date as Busse and his testimony supported Busse’s findings, as he found the same hazards present. These included the presence of the “crack” Busse had observed, the failure to have the highwall sloped to the angle of repose, and the overhanging material above the area where the loader had been working.

            MSHA civil engineer James Pfeifer, qualified as an expert on highwall conditions, also concluded that the situation observed by Busse was hazardous.

            Based upon the credible testimony of MSHA’s witnesses, the Court finds that there is substantial evidence that the highwall presented hazardous ground conditions at the time of Inspector Busse’s issuance of her citation. Though not critical to the finding of a hazard, there is also the testimony of Brad Trotter, Lakeview’s night shift supervisor, which also supports the conclusion that the highwall presented a hazard. Tr. 299-313.

            There is no genuine issue that miners were exposed to the hazardous conditions presented by the highwall, as Inspector Busse noted fresh tracks at the base of the wall and Mr. Trotter stated that the day shift crew had been in that area shortly before the Inspector’s arrival. Lakeview’s Pit Manager, Mr. Fowers, confirmed this as well, advising that a loader had been working at the base of the high until about 30 minutes before MSHA arrived. Based upon her observations, Inspector Busse issued a citation for a violation of 30 C.F.R. § 56.3200's requirement that “[g]round conditions that create a hazard to persons [are to be] taken down or supported before other work or travel is permitted in the affected area.” As the Inspector found the presence of loose, overhanging and cracked material and other dangerous conditions, the Secretary asserts that such hazards constitute a violation of the standard. Sec. Br. at 11, citing Hoover, Inc., 33 FMSHRC 751, 755 (ALJ 2011). The Court agrees.

            Lakeview’s perspective, while denying that the highwall was in fact hazardous, is more fundamental, as it contends that, even if one assumes that it was hazardous, the standard requires only that a barrier or a posting or warning be provided if workers could enter such an area “inadvertently.” Lakeview Br. at 4. Turning to MSHA’s Program and Policy Manual, Volume IV, it contends that, whatever the state of the highwall, the Secretary failed to provide any evidence that “workers could enter the area inadvertently.” Id. Lakeview notes that the Policy Manual “states that ‘[p]osting of a warning against entry is required until corrective work is completed if workers could enter the area inadvertently.’” Id. at 4. In fact, Lakeview contends that inadvertent entry could not occur as the highwall was being attended “until at least a half an hour before the shift change,” and employees “were told or understood that ‘they [were] to stay out of the highwall.” Id. at 4, citing transcript at p. 301. In sum, Lakeview emphasizes that, although the Secretary spent much time concerning alleged highwall hazards, the standard is concerned about keeping miners away from the highwall and that miners are safe while working at or near it. Id. at 5.

            In its Reply Brief, the Secretary, assuming for the moment that Lakeview was correcting the highwall conditions when the citation was issued, maintains that such a claim does not disprove the violation. This is because MSHA’s Busse was informed that miners were working under the highwall when the violative conditions existed. The Secretary asserts that the standard requires that the area be posted with a warning against entry and when the area is left unattended a barrier must be installed to impede unauthorized entry and that these requirements must be in place until the corrective work is completed. Sec. Br. at 5. Here, it notes, there is no evidence in the record that any warning sign or barrier had been put in place. Id. In fact, the area was required to be bermed off in order to abate the citation.

            Finally, the Secretary dismisses the claim that it is penalizing the mine operator for “addressing a hazardous condition in the course of Respondent’s normal operations,” because the standard requires that hazardous conditions are to addressed before work or travel occurs in such an area and the evidence shows that mining activity continued. Sec. Reply at 6.

            Addressing Lakeview’s other contention, that the highwall did not present a hazard, the Secretary points to the testimony of MSHA witnesses Busse, Mier and Pfiefer, not to mention Contestant’s employee, night shift supervisor Trotter to refute that claim.

Discussion:

            An extended discussion of this violation is unnecessary. Given that the cited standard provides that “[g]round conditions that create a hazard to persons shall be taken down or supported before other work or travel is permitted in the affected area [and that] [u]ntil corrective work is completed, the area shall be posted with a warning against entry and, [further] when left unattended, a barrier shall be installed to impede unauthorized entry,” the evidence supports the Court’s finding that the ground conditions cited by Inspector Busse created a hazard, and that work occurred in the affected area before the hazard was corrected. Thus, the key to the standard is that ground conditions be corrected before work or travel occurs in the affected area. Here, with mining ongoing at the base of the highwall, the standard’s proscription against work in the affected area was violated. Accordingly, the violation was clearly established.

Penalty Determination.

            As noted, Respondent was issued a section 104(d)(1) order, in which the negligence was marked as “high” and the gravity as “significant and substantial,” with the injury and illness category marked as “reasonably likely” and “fatal.”

            The standard for evaluating whether a violation is “significant and substantial” has been previously discussed. The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test).

            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 Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor's conduct is aggravated, or whether mitigating circumstances exist. Consol., 22 FMSHRC at 353. Because supervisors are held to a high standard of care, another important factor supporting an unwarrantable failure determination is the involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

Significant and Substantial finding.

            The Secretary contends that given the hazardous conditions found at the highwall and the exposure of miners working at its base, the violation was significant and substantial. Given the Court’s findings that the standard was violated and its finding that miners were exposed to the discrete hazard of highwall failure or a rock fall, the first two elements were clearly demonstrated. Regarding the likelihood element, the Secretary notes that the focus is whether the violation, if left uncorrected, could contribute to a safety hazard. The Court finds that Lakewood’s failure to adequately support the highwall and miners then working beneath that wall, contributed to a risk of serious, if not fatal, injury.

            Inspector Busse stated her belief that it was reasonably likely that a fatal injury would result from the conditions she observed and the exposure, she learned, that the miners faced. These views were well-supported by the record, as Inspector Busse expressed that a small provocation would have precipitated a highwall failure or a rock slide. The combination of the sheer face and the slip area coupled with the vehicles working at the base made it a reasonable likelihood that the hazard contributed to would result in an injury. Under these circumstances, it is plain that any such wall failure would result in injuries of a serious nature. The Court finds Inspector Busse’s assessment of the hazard and her determination that it was a significant and substantial violation to be the fact and it notes that the Inspector’s view was buttressed by the testimony of MSHA expert Pfeifer.

Determination of Negligence and Unwarrantability

            The Secretary maintains that, as the condition of the highwall was obvious and presented a serious hazard, coupled with the fact that Lakewood knew or should have known about the condition, establishes high negligence and unwarrantability. The Court agrees with this assessment of the negligence involved in this instance. Even Mr. Trotter agreed that the highwall was inadequate. Although the obviousness of the condition is sufficient to sustain the finding of high negligence and an unwarrantable failure to comply with the mandatory standard, pit manager Greg Fowers was in the area of the highwall and was or should have been aware of the highwall’s condition. Despite that, Mr. Fowers directed the loader operator to work at the base of the wall. While Mr. Fowers did not believe that the wall presented a hazard, that view has been rejected by the Court and the expression of Mr. Fowers’ view only serves to establish that he was aware of the state of the highwall, albeit that he held a very different perspective of its condition. Based on all the credible evidence of record, the Court finds that a high degree of negligence was involved and that Lakeview Rock’s failure constituted an unwarrantable failure.

Order

            Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), and the discussion above, the Court assesses the following civil penalties:

WEST 2009 1041, Citation No. 6425423 Penalty: $ 1,000.00

WEST 2010 271, Citation No. 6580016 Penalty: $ 2,000.00

            For the reasons set forth above, Lakeview Rock Products is ORDERED TO PAY the Secretary of Labor the sum of $3,000.00 within 30 days of the date of this decision. Upon payment of the penalty, these proceedings are DISMISSED.

                                                                                    /s/ William B. Moran

                                                                                    William B. Moran

                                                                                    Administrative Law Judge

Distribution:

Alicia Truman, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202

Kevin Watkins, Esq., General Counsel, Lakeview Rock Products, P.O. Box 540700, 900 North Redwood Road, North Salt Lake, UT 84054-0700