FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

January 25, 2012

DECISION

            This case is before me upon a Petition for Assessment of Civil Penalty filed by the Secretary of Labor on behalf of her Mine Safety and Health Administration (“MSHA”), against Granite Rock Company (“Granite Rock”), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Act” or “Mine Act”), 30 U.S.C. § 815. The Secretary seeks civil penalties in the amount of $3,990.00 for two alleged violations of the Act and her mandatory safety standards.

            A hearing was held in San Jose, California. The following are issues for resolution in this case: (1) whether Respondent violated 30 C.F.R. §§ 56.15005 and 56.11001; (2) whether the violations were significant and substantial; and (3) whether the violations were attributable to Granite Rock’s moderate negligence. Petitioner’s Post-hearing Brief is of record. For the reasons set forth below, I AFFIRM, as issued, the citations and assess penalties against Respondent.

I. Stipulations

            The parties stipulated as follows:

            1. Respondent is the operator of the mine identified in the subject citations.

            2. Respondent is engaged in mining as that term is defined in the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, the Mine Act.

            3. The Respondent is subject to the jurisdiction of the Mine Act.

            4. The Administrative Law Judge has jurisdiction in this matter.

            5. The history of violations as shown on Exhibit A attached to the Petition in this matter accurately reflects that of Respondent.

            6. The penalties of $3,990.00 will not affect Respondent’s ability to continue in business.

            7. When MSHA Inspector Jason Jeno issued the subject citations, he was acting in his official capacity as an authorized representative of the Secretary.

            8. Citation Numbers 6443254 and 6443255 were properly served by a duly authorized representative of the Secretary upon an agent of Respondent on the date and place stated herein.

            9. The two miners described in Citation Number 6443254 were not wearing fall protection equipment at the time Citation Number 6443254 was issued.

            10. Eric Lewis and Steve Davison were properly trained in the identification of fall hazards and the proper use of effective fall protection equipment.

II. Factual Background

            Jason Jeno is an MSHA inspector, a position that he had held for three years at the time of the hearing. Tr. 12. Prior to working for MSHA, he had 10 years experience working in the mining industry as a lead man and operating engineer. Tr. 13, 39. His experience included operating a crusher, manufacturing materials at three hot plants similar to the products made by Granite Rock, and performing repairs on numerous conveyors. Tr. 39.

            The violations alleged in Citation Nos. 6443254 and 6443255 occurred on August 26, 2008, when Jeno was conducting a regular inspection at the A. R. Wilson Quarry, a surface rock, sand, and gravel mine located in San Benito County, California. Tr. 14-15. Granite Rock produces rock and sand for construction and other uses. Tr. 14. Inspector Jeno was accompanied by William Edminister, an inspector trainee, Frank Marichi, the miners’ representative, and a mine foreman. Tr. 14.

            Upon entering the area near the framework of the #4606 belt and #4919 magnet belt, Jeno saw two men working. Tr. 95. He approached the miners to observe their work practices, to ensure that lock-out/tag-out procedures were being followed, and to see whether they were wearing fall protection. Tr. 95. Once he arrived at the framework of the belts, he observed one miner standing on the #4606 conveyor belt and the other standing inside the framework of the #4919 magnet belt, working without wearing fall protection. Tr. 95-96. Consequently, he issued an imminent danger order to get the miners down from the conveyor belts. Tr. 95. Thereafter, based on his conversations with the miners, Jeno concluded that they were using the handrails and the framework of the conveyor to access and exit the belt and, accordingly, he issued the subject citations. Tr. 40.

III. Findings of Fact and Conclusions of Law

             A. Citation No. 6443254

            Inspector Jeno issued Citation No. 6443254, alleging a “significant and substantial” violation of section 56.15005 that was “highly likely” to cause an injury that could reasonably be expected to be “fatal,” and was caused by Granite Rock’s “moderate” negligence. Section 56.15005 requires that “[s]afety belts and lines shall be worn when persons work where there is a danger of falling; a second person shall tend the lifeline when bins, tanks, or other dangerous areas are entered.” 30 C.F.R. § 56.15005. The Condition or Practice is described as follows:

Two miners who were working in an elevated position located in the secondary area of the mine were not wearing fall protection where there was a danger of falling. One miner was standing on belt #4606 helping another miner who was working inside the support structure for magnet belt #4919. This condition exposed the miners to an estimated 16 foot fall to the ground level below. A fall from this height would likely result in fatal injuries.

Ex. P-1. The citation was terminated after the miners used a manlift, an altering forklift, extension ladders, and safety harnesses and lanyards to build a work platform to access the conveyor belts. Tr. 125.

                        1. Fact of Violation

            In order to establish a violation of one of her safety standards, the Secretary must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)). Granite Rock has conceded that the violation of section 56.15005 occurred; however, it contests the gravity and negligence findings ascribed by the Secretary. Stip. 9; see Tr. 9.

                        2. Gravity

                                    a. Likelihood and Type of Injury

                                                i. Testimony 

            Inspector Jeno testified for the Secretary. He opined that the violation was highly likely to result in an injury because the men, without fall protection and carrying hand tools, were using the handrails and the frame of the conveyor to climb onto and stand on the #4606 belt conveyor. Tr. 25, 44. Jeno explained that he took into account the surface itself, the tools, loose rock, and dust on the conveyor belt, the instability of working in a non-designated work area, the general unsafe conditions associated with working on top of a conveyor, and the nature of the work, itself. Tr. 36-37. Jeno estimated the #4919 magnet belt to be suspended from 16 to 18 feet above ground; the magnet belt was 16 feet on the lower side and 18 feet on the higher side of the #4606 belt conveyor. Tr. 25. Consistent with his training, Jeno added the height of the miner to the belt’s distance from the ground when he calculated the total fall distance. Tr. 48-49, 73-74. Jeno opined that a 16 to 18 foot fall, even a 12 foot fall, could be very serious because “usually falls from this height usually result in fatalities resulting from blunt force trauma striking an object on the way down, slip, trip, and fall hazard[s].” Tr. 26-28, 50-51. Furthermore, Jeno considered the configuration of the equipment and “took into account where the miner would fall, what he might fall into, what he might fall on and where he might fall[,]” when he evaluated the likelihood of an injury resulting in a fatality. Tr. 51. He testified that both miners could have fallen to the left onto the handrail or catwalk, or to the right onto the ground. Tr. 51. Jeno stated that he also took into account the fact that the miners could have fallen onto the travelway alongside the conveyor belt; however, he did not take into account the possibility that they could have fallen onto the screen deck, because the deck only covers the areas consisting of the width of the magnet belt and did not extend past the area where the miners were working. Tr. 52.

            Henry Ramirez, Granite Rock’s witness, had been the plant manager at the A. R. Wilson Quarry for 5 ½ years. Tr. 119. He opined that the miners “made a poor judgment call in relation to whether they saw a hazard or not.” Tr. 120-21. He was told by the miners that they had used three points of contact when they climbed onto the #4606 conveyor to re-splice the #4919 belt. Tr. 121-22. The three-points-of-contact method of access is covered under A. R. Wilson’s slip, trip, and fall safety training. Tr. 122. Ramirez also opined that four beams, situated to the left and right of the #4919 magnet belt, would provide some measure of protection against falling if the miners were kneeling or sitting on the conveyor belt to perform their work, but not if they were standing. Tr. 123-24; see Ex. R-3, R-4, R-5, and R-6. Furthermore, referencing three photographs in evidence, it was his opinion that if one of the miners were to fall off the conveyor belt to the right, he would land on the screen decking. Tr. 127; Ex. P-9, P-10, and P-11.

            Michael Herges, testifying for Granite Rock, had been the operator’s safety health services manager for 10 ½ years. Tr. 139. Herges testified to the unlikelihood of injury based on the fact that the miners using three points of contact would have reduced the opportunity for falling, one side of the conveyor belt was covered by a walkway and, on the other side, the greater height, the screen would have reduced the opportunity for a fall. Tr. 141-42. He measured the distance from the belt to the ground to vary from 6 to 8 feet, and the distance from the other side of the magnet conveyor and the pole to the ground to be 11 feet. Tr. 155-56. Herges also noted that the conveyor belt was dry and, therefore, posed no hazard. Tr. 148. He admitted, however, that he did not observe the conditions of the magnet belt and the surrounding equipment on the day that the citations were issued, but a day or two thereafter. Tr. 159, 173. Furthermore, he explained that there are four eyeholes on top of the magnet belt structure and a 3/8 inch cable running the length of the conveyor that serve as sufficient tie-off points, and that the cable also serves as a barrier from falling on or against the belt. Tr. 159, 173, 176, 178. In his opinion, use of the cable to tie-off on the unprotected side of the belt would be effective, although he did not know whether it had been tested for its ability to sustain the weight of a person. Tr. 177, 181. Herges also testified that Granite Rock’s policy requires use of fall protection when working in elevations of over 4 feet without handrails, and that he had witnessed miners at the quarry wearing fall protection while working in elevated areas. Tr. 162. He opined that the two miners were properly trained, but stated that he had not personally witnessed them using fall protection. Tr. 162, 164. He testified that Granite Rock does not make a special effort to monitor use of fall protection; according to him, supervisors only check usage incidental to monitoring work progress. Tr. 165-66.

                                                ii. Analysis 

            Jeno pointed out that, even if the miners had used three points of contact in accessing the work area and performing their tasks, they did not have use of handholds to climb, but only the frame of the #4919 belt, and they were carrying tools. Tr. 84. Moreover, because they were standing at least part, if not the majority, of the time that they were working, the #4919 magnet belt’s four beams would have provided only minimal, if any, protection. I credit Jeno’s assessment that both miners could have fallen to the left onto the handrail or catwalk, or to the right onto the ground, and incurred injuries in either scenario. Even if a left-sided fall onto the walkway or handrails would have broken the fall, the potential for serious injury, such as severe head trauma or even death, remains high. As for a fall from the right, the evidence indicates that the screen decking does not cover the entire right side of the framework, and falling onto the screen decking also poses a high likelihood of serious injury. See Ex. P-6, P-10. Respecting the work area, I find that the conveyor was in a troughing position, the surface was slippery, and the tools, dust, and rocks on the belt created slip, trip, and fall hazards. For these reasons, the Secretary has established the high likelihood that a miner would be seriously injured if he were to fall as a result of working in an elevated position of at least 8 feet, without wearing fall protection. Therefore, I conclude that Citation No. 6443254 was appropriately assessed as highly likely to result in an injury that could reasonably be expected to be fatal.

                                    b. Significant and Substantial

            Inspector Jeno opined that the violation was significant and substantial (“S&S”) because the miners’ method of accessing the conveyor put them above the safety devices provided, and was not a suitable means of access to the conveyor. Tr. 27. He testified that “[t]he hazard [was] standing on a conveyor that’s not designed to be stand [sic] on or worked on. It’s a slippery surface. It’s in a troughing position, which cups and holds the materials. It’s not—it’s standing between the troughing rollers . . . .” Tr. 31. Furthermore, he asserted that the tools lying on the conveyor belt created tripping hazards, dust and loose rocks created slip, trip, and fall hazards, and standing between the troughing rollers created an unstable work surface. Tr. 37.

            In Mathies Coal Company, the Commission set forth four criteria that the Secretary must establish in order to prove that a violation is S&S under National Gypsum: (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. 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). The Commission provided further guidance in U.S. Steel Mining Company:

We 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.” 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.

7 FMSHRC 1125, 1129 (Aug. 1985) (citations omitted); see also Musser Eng’g, Inc. And PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010). Additionally, “[t]he Secretary need not prove a reasonable likelihood that the violation itself will cause injury[.]” Musser at 1281. An evaluation of the reasonable likelihood of injury should be made in the context of the length of time that the violative condition existed prior to the citation and the time it would have existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., 6 FMSHRC 1573 (July 1984). Moreover, resolution of whether a violation is S&S must be based “on the particular facts surrounding the violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

            The first two Mathies criteria are easily satisfied. The fact of violation has been established, and the violation clearly contributed to the safety hazard of falling while working in an elevated position. The focus of the S&S analysis here is the third and fourth Mathies criteria, i.e., whether the hazard was reasonably likely to result in an injury, and whether the injury would be serious. As discussed above, falling a distance of at least 8 to 12 feet is reasonably likely to result in serious injury.

            In Great Western Electric, the Commission explained that a miner’s “position twelve feet above the ground presented a substantial height from which to fall.” 5 FMSHRC 840, 843 (May 1983); see also generally Molton Co., LP, 31 FMSHRC 427 (Mar. 2009) (ALJ) (crediting an inspector’s testimony that fatal falls have occurred from heights of 10 feet or less, and finding an S&S violation where a miner was working without fall protection at a height of approximately 7 feet); Cantera Green, 21 FMSHRC 310 (Mar. 1999) (ALJ) (finding S&S, safe access violations where workers were working 8, 10, and 12 feet above ground); Laramie Cnty. Road & Bridge, 17 FMSHRC 902 (June 1995) (ALJ) (crediting an inspector’s testimony that miners have been seriously injured and killed as a result of falling from heights of 8 to 12 feet, and finding an S&S violation). Moreover, the Commission has acknowledged that “[e]ven a skilled employee may suffer a lapse of attentiveness, either from fatigue or environmental distractions, which could result in a fall.” Id. at 842. Based on the evidence, I find that a fall from 8 to 12 feet would reasonably result in serious injuries ranging from broken bones and head trauma, possibly death. Therefore, I conclude that the violation of section 56.15005 was S&S.

                        3. Negligence

            Jeno testified that “the mine operator had provided training to the miners, and there was [sic] no immediate supervisors in the area. And based on training that the miners told me that they had received, I chose moderate negligence rather than high negligence to the company.”

Tr. 28; Stip. 10. Harnesses and lanyards were located on the service truck nearby. Tr. 55. The aggravating factors that Jeno considered were lack of supervisory oversight of safety compliance, and lack of a job task analysis prior to commencement of the work. Tr. 55, 58. Jeno considered mitigating, the fact that two months prior, the same miners had identified a safe access hazard at another elevated work area, and the operator had permitted them to build a suitable work platform. Tr. 55-57. In summary, Jeno stated that the operator should have “[s]upervise[d] the area, instructed the miners in how to do it, [and performed] job tasks analysis before the work was conducted.” Tr. 58. I have considered Granite Rock’s fall protection policy and training, as well as its passive monitoring of compliance, and find that it was moderately negligent in violating the standard.

            B. Citation No. 6443255

            Section 56.11001 requires that “[s]afe means of access shall be provided and maintained to all working places.” 30 C.F.R. § 56.11001. Jeno issued Citation No. 6443255, alleging an “S&S” violation of the standard, after observing the manner in which the miners were accessing the area in which they were working on the belts. The Citation further alleges that the condition was “highly likely” to cause an injury that could reasonably be expected to be “fatal,” and was caused by Granite Rock’s “moderate” negligence. The Condition or Practice is described as follows:

A safe means of access was not being provided to access the magnet belt #4919 located in the secondary area of the mine. Two miners were accessing the magnet belt by means of climbing up the travelway handrails for belt #4606 and standing on belt #4606. This condition exposed the miners to a fall of about 16 feet to the ground level below. A fall from this height would likely result in fatal injuries.

Ex. P-3.

                        1. Fact of Violation

            The Commission has held that section 56.11001 embodies the dual requirement of providing and maintaining safe access to working places. Watkins Eng’rs & Constructors, 24 FMSHRC 669, 680 (July 2002). A violation may be found when either or both prongs of the standard are not met. An operator’s duty to “provide” a safe means of access incorporates the responsibility to instruct its employees on the procedure for safe access. Id. at 681. By interpreting “maintain” according to its plain meaning, the Commission has concluded that the term “requires an operator to uphold, keep up, continue, or preserve the safe means of access it has provided to a working place.” Lopke Quarries, Inc., 23 FMSHRC 705, 708 (July 2001); Western Indus., Inc., 25 FMSHRC 449, 452 (Aug. 2003). The Commission has further explained that the duty to maintain safe access requires constant vigilance because it “‘incorporates an on-going responsibility on the part of the operator to ensure that [the] means of safe access is utilized, as opposed to a purely passive approach in which an operator initially provides safe access and then has absolutely no further obligation.’” Watkins, 24 FMSHRC at 680 (quoting Lopke, 23 FMSHRC at 708). More is required than simply making a safe means of access “available,” “[a]t a minimum, the standard’s requirement that operators ‘maintain’ safe access to working places mandates that management officials utilize that access, and require other miners to do so.” Lopke, 23 FMSHRC at 709.

                                    a. Testimony

            Inspector Jeno testified that he was told by the miners that “they had to use the handrails and the framework of the conveyor to enter and exit the belt” and, therefore, he concluded that they had misused the handrail as a ladder to access the #4606 conveyor. Tr. 40; see Tr. 35, 36. He described one miner’s access by testifying that “[t]he handrails would have been to his right. He stepped up onto the mid-rail to his right and then lifted himself up, swung his foot over onto the frame of the conveyor and then stepped onto the belt.” Tr. 107-08. Furthermore, he opined that, by stepping onto the handrail, the miners situated themselves above it and rendered it ineffective. Tr. 26. Jeno concluded that Granite Rock did not provide a safe means of access for the miners because no ladders were used, no ladders were provided at the end of the conveyor catwalk to access the #4919 magnet belt, and a man basket was available, but not used. Tr. 60. Additionally, he testified that he did not see any ladders or man baskets in the work area, and that he did not ask the miners whether they had been provided with ladders. Tr. 63-64, 78-79. In Jeno’s opinion, portable ladders would have provided safe access to the work area. Tr. 80. Jeno initially testified that no tie-offs were available to which the miners could attach their lanyards but, subsequently, acknowledged that the four eyeholes may have been adequate tie-off points if they had been within their reach. Tr. 62-63. However, he pointed out that the eyeholes were inaccessible while the miners were actively climbing the framework. Tr. 75. He also opined that the miners, with tools in hand, could not have ascended onto the conveyor by using the three-points-of-contact method. Tr. 84-85. Furthermore, he noted that it takes both hands to repair or change belt clips. Tr. 90-91.

            Henry Ramirez testified that the miners told him “that they used three points of contact when they climbed onto 4406.” Tr. 121-22. Climbing on equipment with three points of contact is something that is covered in A. R. Wilson’s slip, trip, and fall safety training. Tr. 122. Ramirez did not see the miners access the work area, and was unsure of how the tools got onto the conveyor belt. Tr. 129-30. According to him, stepladders are standard equipment carried by the miners on their trucks but, because he was not present when the citations were issued, he did not know whether there was a ladder in the area at that time. Tr. 131-32.

            Michael Herges testified that Granite Rock’s safe means of access at the time of the citation would have been the three-points-of-contact method, and that miners are trained to use this procedure in accessing elevated areas. Tr. 145, 168. He opined that the standard was not violated because, presumptively, the three-points-of-contact method was used, sufficient tie-offs existed for use of lanyards and harnesses, and the conveyor belts could be accessed safely by using a portable ladder. Tr. 159, 163, 168. He drew these conclusions without having observed the miners accessing their work area on the day in question. Tr. 130, 164. As mentioned previously, Granite Rock only monitors miners’ implementation of safety training tangential to supervisory oversight of work progress. Tr. 165-66.

                                    b. Analysis

            The record does not support Granite Rock’s position that the three-points-of-contact method provided a safe means of access for the miners. Rather, I am persuaded that the miners could not have accessed the belts by keeping three solid points of contact at all times, especially because they had to climb the belt framework and, unlike climbing a ladder, there were no handholds for use during their ascent. Tools were present on the belt, and it is reasonable to infer that the miners carried some, if not all the tools, as they climbed up the conveyor belt framework. Moreover, the miners were repairing and changing belt clips which, as the Secretary has established, required use of both hands. Therefore, I find that at all times, the miners’ hands were encumbered while they were accessing the work area, as well as while they were working and, for that reason, they could not have utilized the three-points-of-contact method, even if it were a safe way to access the work area and perform their duties.

            The record also establishes that Granite Rock provided ladders to the miners for use in accessing the conveyor belts, based on credible testimony that stepladders are standard pieces of equipment on the trucks. Jeno opined that use of portable ladders is a safe means of accessing the work area, and admitted that, although he did not see a ladder at the end of the conveyor catwalk, he did not ask the miners whether ladders had been made available to them. Additionally, the operator provided the miners with lanyards and harnesses. The four eyeholes located on top of the magnet belt structure and the 3/8 inch cable were sufficient tie-offs, and the cable also provided additional fall protection while they were working. Even Jeno conceded that the four eyeholes, overlooked in his initial assessment, may have been adequate tie-offs. Therefore, because Respondent provided the miners with safe access equipment, i.e., ladders, harnesses and lanyards, the first prong of section 56.11001 has been satisfied.

            Providing training and safety equipment alone, however, is not enough to satisfy the requirements of section 56.11001; the standard requires more. The operator has an on-going, active responsibility to ensure compliance with safe means of accessing work places. At the time that the citations were issued, no supervisors were in the area to ensure that elevated areas were being accessed safely by use of the safety equipment provided to the miners. As a result, the miners were unprotected, their lanyards and harnesses were in the truck, and no portable ladders were being used to access the framework of the conveyor belt. Moreover, although it has been established that the miners had been properly trained, it is clear from the record that Granite Rock’s compliance oversight was passive at best, the “purely passive approach” that the Commission has rejected in Watkins and Lopke. Accordingly, I conclude that the Secretary has established, by a preponderance of the evidence, that Granite Rock violated section 56.11001 by failing to maintain safe access to the #4606 conveyor and #4919 magnet belts.

                        2. Gravity

                                    a. Likelihood and Type of Injury 

            Jeno marked Citation No. 6443255 as “highly likely” to result in an injury because “[t]here was no ladder. There was [sic] no handrails. There was no platform to work on so, therefore, the miners were working from the belt.” Tr. 33. He did not consider how many points of contact the miners may have used when they accessed the work. Tr. 41. When asked how misusing the handrails was highly likely to cause death, Jeno responded that “they stepped onto the conveyor. They stepped onto the handrail, which puts them above the handrail. Now it becomes ineffective. And then they’re stepping across over onto the frame of the conveyor, which now they have to straddle for a brief second to put the other foot on the frame of the conveyor and then swing the other leg onto the conveyor itself.” Tr. 26. For the same reasons that were discussed respecting the fall protection violation, the Secretary has established the high likelihood that if a miner were to sustain a fall of 8 to 12 feet, the injury could reasonably be expected to be fatal.

                                    b. Significant and Substantial

            Under the same analysis applied to Citation No. 6443254, I find that the violation of section 56.11001 in Citation No. 6443255 was S&S. To reiterate, the violation has been established, it contributed to the hazard of falling from an elevated work area, it was reasonably likely to result in an injury because of the minimum fall distance of 8 to 12 feet, and the resulting injury would likely be serious, i.e., broken bones and head trauma, or death.

                        3. Negligence

            Jeno ascribed moderate negligence to the violation. He considered mitigating, the fact that Granite Rock had properly trained the miners in identification of fall hazards and proper use of fall protection equipment, provided them with access to portable ladders, lanyards and harnesses, and had permitted them to build a safe work platform two months prior to the instant violations. Aggravating factors that Jeno considered were absence of ladders in the work area, lack of supervisory oversight to ensure safety compliance, lack of a job task analysis, and Granite Rock’s overall passive approach to monitoring compliance with its safety policies and procedures. It is evident that Granite Rock knew or should have known that it had an on-going responsibility to ensure that its miners were utilizing the safe means of access that had been provided to them. Accordingly, I find that Granite Rock was moderately negligent.

IV. PENALTY 

            While the Secretary has proposed total civil penalties in the amount of $3,990.00, the judge must independently determine the appropriate assessment by proper consideration of the six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Stone Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984).

            Applying the penalty criteria, I find that Granite Rock is a large operator. Despite Stipulation No. 5, which purports to address the mine’s violations history, but does not, the Secretary has not proffered any evidence of prior violations of the subject standards during the relevant time period. Therefore, I find that Granite Rock’s history of violations is neither an aggravating nor mitigating factor. As stipulated by the parties, the total proposed penalty will not affect Respondent’s ability to continue in business. Stip. 6. I also find that Granite Rock demonstrated good faith in achieving rapid compliance after notice of the violations. Ex. P-1; Ex. P-4.

            The remaining criteria involve consideration of the gravity of the violations and Respondent’s negligence in committing them. These factors have been discussed fully, respecting each citation. Therefore, considering my findings as to the six penalty criteria, the penalties are set forth below.

            A. Citation No. 6443254

            It has been established that this S&S violation of 30 C.F.R. § 56.15005 was highly likely to cause an injury that could reasonably be expected to be fatal, that two persons were affected, that Granite Rock was moderately negligent, and that it was timely abated. Applying the civil penalty criteria, I find that a penalty of $1,995.00, as proposed by the Secretary, is appropriate.

            B. Citation No. 6443255

            It has been established that this S&S violation of 30 C.F.R. § 56.11001 was highly likely to cause an injury that could reasonably be expected to be fatal, that two persons were affected, that Granite Rock was moderately negligent, and that it was timely abated. Applying the civil penalty criteria, I find that a penalty of $1,995.00, as proposed by the Secretary, is appropriate.

ORDER

            WHEREFORE, Citation Nos. 6443254 and 6443255 are AFFIRMED, as issued, and it is ORDERED that Respondent PAY a civil penalty of $3,990.00 within 30 days of this decision. Accordingly, this case is DISMISSED.

                                                                        /s/ Jacqueline R. Bulluck

                                                                        Jacqueline R. Bulluck

                                                                        Administrative Law Judge

Distribution: (Certified Mail)

Larry Larson, CLR, U.S. Department of Labor, MSHA, 991 Nut Tree Road, 2nd Floor, Vacaville, CA 95687

Jan Coplick, Esq., U.S. Department of Labor, Office of the Solicitor, 90 7th Street, Suite 3-700, San Francisco, CA 9410

Kevin Jeffery, Esq., Assistant General Counsel, Granite Rock Company, 350 Technology Drive, Watsonville, CA 95076

/cjw