FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19th Street, Suite 443
Denver, CO 80202‑2500
303‑844‑5266/FAX 303‑844‑5268
February 1, 2013
|
SECRETARY OF LABOR, MINE SAFETY AND HEALTH ADMINISTRATION (MSHA),
v.
BLACK BEAUTY COAL COMPANY, Respondent. |
: : : : : : : : : : |
CIVIL PENALTY PROCEEDING
Docket No. LAKE 2008-477 A.C. No. 12-02258-150575 Mine: Somerville Central |
DECISION ON REMAND
Before: Judge Miller
This case is before me on remand from the Commission’s decision in Black Beauty Coal Co., LAKE 2008-477, 34 FMSHRC 1733 (Aug. 2012). This case was initially heard on a petition for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration, against Black Beauty Coal Company, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815 and 820 (the Mine Act or Act). The case involved one citation and two orders, all three of which I affirmed as significant and substantial and attributable to the operator’s unwarrantable failure. See 32 FMSHRC 356 (Mar. 2010) (ALJ). Black Beauty filed a petition for discretionary review, which was granted by the Commission. The Commission has affirmed in part, and reversed and remanded in part my previous decision. I will address the sections reversed and remanded below.
I. BACKGROUND
Black Beauty Coal Company (“Black Beauty”) operates a surface coal mine, the Somerville Central Mine (the “mine”) near Gibson, Indiana. The mine is subject to regular inspections by the Secretary’s Mine Safety and Health Administration (“MSHA”) pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that Black Beauty is an operator as defined by the Act, and is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission. Trial Stip. ¶¶ 1-3.
On September 11, 2007, Vernon Stumbo, an MSHA inspector, conducted a regular inspection at the Somerville Central Mine. He was accompanied during most of his inspection by Chad Wirthwein, the mine’s safety director. Stumbo, along with his supervisor at the time, traveled to the mine to address issues involving berms and to terminate citations that had been previously issued for failure to provide berms on elevated roadways. While at the mine, Stumbo issued one citation and one order for berm violations. He determined that both violations were the result of an unwarrantable failure to comply with the cited standard. Stumbo returned to the mine a few weeks later and issued another unwarrantable failure order for a berming violation. The testimony at the hearing in this case addressed these three berm violations: two issued on September 11, 2009 and one issued on September 27, 2009.
II. THE VIOLATIONS
a. Citation No. 6671134
Facts
and Commission Decision
As a result of the first inspection at Somerville Central Mine on September 11, 2007, Inspector Stumbo issued Citation No. 6671134 as a 104(d)(1) citation alleging a violation of 30 C.F.R. § 77.1605(k), which requires that “[b]erms or guards shall be provided on the outer bank of elevated roadways.” The citation described the violation as follows:
The dragline bench travel road does not have a berm for a distance of approximately 2/10 of a mile where a service truck with two miners traveled within 18’ of the outer banks of a bench with approximately a 50’ vertical drop to the pit floor. The mid-axle height of the largest vehicle traveling this road at this time is approximately 21 inches. In addition, four company full size pick-up trucks also traveled the bench travel road. Two management personnel were also in the area and having traveled the road were fully aware that there was no berm. Management was put on notice of berm issues by MSHA within the past week during a previous visit on 09/06/2007.
Gov. Ex. 4. At the time of the inspection, Black Beauty was in the process of moving a dragline across the bench.[1] During the move, the dragline suffered electrical problems and came to a stop on the bench. As a result, miners had driven a service truck onto the bench and were beginning maintenance work, during which Stumbo observed that they did not have the protection of berms along the roadway as required. Stumbo determined that it was reasonably likely that the violation would result in an injury that would be permanently disabling, that the violation was significant and substantial, that two employees were affected, and that the operator’s negligence was high. A civil penalty in the amount of $4,329.00 has been proposed for this violation. See 32 FMSHRC 356.
In my original decision after the hearing, in determining
that the bench constituted a “roadway” pursuant to section 77.1605(k), I relied
on the fact that rubber-tired equipment had begun operating on the bench in
close proximity to the edge. 32 FMSHRC
356, 359. However, the Commission
concluded on review that “in finding that the bench was a roadway simply
because a rubber-tired vehicle began operating on it, the judge did not use the
proper inquiry.” 34 FMSHRC at1735.
Commission cases have previously held that the relevant inquiry for
whether an elevated area is a roadway is whether a vehicle commonly travels its
surface during the normal mining routine.
Id. The presence of a
rubber-tired vehicle on a bench is not a dispositive indication that the bench
is a roadway.
However,
the Commission held that the use of the incorrect inquiry in determining the
bench was a roadway was ultimately harmless error. When evaluated under the correct legal
standard, the bench in this case would still be considered a roadway. Id.
Evidence from the hearing indicates that vehicles commonly traveled on
the bench during normal mining operations.
Tr. 79, 93. In addition, the
Commission found that the bench remained a “roadway” during the dragline move.
Despite holding that the bench in this case was a
“roadway,” the Commission found several inconsistencies between the testimony
at the hearing, the parties’ briefs, and my previous decision that caused them
to vacate and remand the decision for clarification of whether or not there
were adequate berms on the bench. Below,
I will expand the factual basis for my previous decision and re-evaluate
whether a violation existed at the time.
There were no berms on
the side of the temporary roadway, in violation of 30 C.F.R. §
77.1605(k)
At the
hearing, Black Beauty asserted that the bench contained a remnant berm that was
adequate because it was as high as the mid-axle height of the largest rubber
tired vehicle present. Tr. 10-11. In contrast, both the Secretary’s
post-hearing brief and Inspector Stumbo’s trial testimony claimed that there
were no berms at all. Tr. 29, 31; Sec’y
Trial Brief at 3. Thus, the statement in
my 2010 decision that neither party disputed the presence of “only a remnant
berm,” did not accurately reflect the parties’ assertions about the berms on
the bench.
Upon
re-examination of the trial transcripts, I find that Inspector Stumbo testified
convincingly that he did not observe any berms at all on the section of
the bench in question. Tr. 29. He detailed the procedure he used to verify
measurements on the bench and conversations with management in which he
verbally expressed concern regarding the complete lack of berms on the
bench. As Stumbo testified regarding the
operator, “[h]e’d been put on high notice and yet there was (sic) zero
berms…” Tr. 31 (emphasis added).
As a result, Inspector Stumbo issued a 104(d)(1) citation for a violation of 30 C.F.R. § 77.1605(k). I affirm his citation as written, and find that there were no berms on the bench for approximately 2/10 of a mile, at a point where a service truck had traveled within 18’ of the outer banks of the bench, to a 50’ drop. Inspector Stumbo issued the citation as significant and substantial and as an unwarrantable failure, and I will address those designations below.
Significant and
Substantial Analysis
A significant and substantial (“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:
[i]n 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).
As noted above, I find that there is a violation of the mandatory safety standard as alleged by the Secretary. Further, I find that the violation, a lack of berms, contributes to the discrete safety hazard of a vehicle veering off the elevated roadway and rolling, or falling, down the spoil incline. The difficulty with finding a violation S&S normally comes with the third element of the Mathies formula, in which the Secretary must establish that there is a reasonable likelihood that the hazard will result in an injury. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance:
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.” 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 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
This evaluation is made in consideration 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., Inc., 6 FMSHRC 1573, 1574 (July 1984). In addition, the question of whether a particular violation is S&S is a circumstantial inquiry that 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). In the present instance, the Secretary must show that there was a reasonable likelihood that a vehicle would go over a section of the roadway with no berms, resulting in an injury. An inquiry into the particular circumstances of this violation shows that the conditions created a reasonable likelihood that the lack of berms would contribute to a hazard resulting in injury.
While the duration of time the
condition existed was short, there is no indication that in the normal course
of mining, a berm would have been provided.
The temporary nature of the road, the extent of the operator’s berm
violations, the number of vehicles traveling the road and the rough terrain of
the roadway support the finding that it was likely an accident would occur
resulting in an injury. Evidence
presented at trial shows that a service truck drove within approximately 18
feet of the edge of the inadequately-bermed bench. Stumbo
testified that the closer a vehicle travels to the edge of a highwall, the more
unstable the ground becomes. Tr.
32. It is likely that the fresh ground
on the edge of the bench could slip, causing the driver to lose control of the
vehicle.
Black Beauty argued at trial that vehicles would be traveling at such low speeds that it was unlikely that one would have driven close enough to the edge to go over. However, this argument fails to account for the rough and unstable nature of the road, and that vehicles within 18 feet of the edge could easily be thrown off by bumps or ground instability at any speed. Thus, the berm violation in this particular situation made it reasonably likely that a truck would go close to, and over, the edge of the elevated roadway, falling approximately 50 feet.
If
a truck, traveling along an elevated roadway on a section with no berms,
was to go over the
edge and fall the estimated 50 feet to the surface below, it is reasonably
likely that the driver and any passengers would sustain broken bones and
injuries of a serious and potentially fatal nature. See e.g., Gatliff Coal Co., 13 FMSHRC 368
(Mar. 8, 1991) (ALJ). Stumbo
testified that, in determining that the injuries sustained would be serious, he
accounted for the weight and material of the trucks traveling the road and the
distance of the potential fall. Berms exist to prevent exactly such
an occurrence. There is no question that
a service truck did travel along the bench, in close proximity to the
edge, in a section with difficult terrain and no berms present.
This was a situation in which serious injuries were likely to
occur, and I
find that the Secretary has satisfied the four Mathies criteria and
established that this violation is significant and
substantial.
Unwarrantable Failure
Analysis
This citation was issued as an “unwarrantable failure,” which has been defined by the Commission as “aggravated conduct constituting more than ordinary negligence.” Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987). The Commission has stated that whether a citation is an “unwarrantable failure” is a question that should be evaluated based on the facts and circumstances in each case, and in light of each of the following factors: 1) the length of time that the violation has existed; 2) the extent of the violative condition; 3) whether the operator has been placed on notice that greater efforts were necessary for compliance; 4) the operator’s efforts in abating the violative condition; 5) whether the violation was obvious or posed a high degree of danger; and 6) the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346 (Dec. 2009).
With respect to the first two factors, the condition was not likely to have existed for a large amount of time given the temporary nature of the bench. While the berm was low for a distance and did not exist for two –tenths of a mile, it was probably not extensive but there were not barricades and in that regard, the violation was extensive in that anyone could access and travel the road. Additionally, the operator was on notice that greater efforts were required for compliance because they had just recently received citations for inadequate berms at the same mine. On September 6, 2007, just five days before the citation at issue was written, the mine had received a citation for inadequate berms at the dumping locations on the dragline bench roadway. Gov. Trial. Ex. 2. In addition, Stumbo testified that, based on past berm violations, the Somerville Central Mine had been placed on “high alert of berm issues at [the] mine” prior to the September 11, 2007 inspection. Tr. 27. The mine’s history of similar citations shows the operator knew that more efforts were required to comply with berm requirements on the dragline bench, and more generally across the mine.
The condition was abated on the same day the citation was issued but the operator had not made any effort to abate the violation prior to the inspection. Additionally, the inspector found that there were no berms at all for a distance of two tenths of a mile, which should have been obvious to the operator since berms to mid-axle height were required. There were several management trucks in the area, so Black Beauty management should have known that the berms necessary to protect workers in the area were not in place. The operator had several opportunities to place berms or otherwise block off the road for safety purposes, and yet did not do so. Tr. 37-38. The condition was obvious and the fact that no berm was present resulted in a high degree of danger to miners driving in the area.
After considering all the relevant factors, I find that the operator’s repeated failure to maintain adequate berms, the obviousness of the violation, and the ease with which it could have been corrected indicate a level of negligence that rises to an “unwarrantable failure.” Accordingly, I affirm Citation No. 6671134 in its entirety, as written.
b. Order 6671135
Facts and Commission Decision
As a result of the inspection on September 11, 2007, Stumbo issued Order No. 6671135 as a 104(d)(1) order alleging a violation of 30 C.F.R. § 77.1605(k), which requires that “[b]erms or guards shall be provided on the outer bank of elevated roadways.” The order described the violation as follows:
A new drill travel road was created from the #001 pit #6 bench up to the top level of the pit on the west side of the pit that has an inadequate berm. The travel road has no berm on the outer bank from the base of the elevated travel road, where there is a grade of approximately 30% for a distance of approximately 75 feet with a subtle curve at the downgrade base. From the #6 bench to the top level of the pit is approximately 40 vertical feet. From the #6 bench to the pit floor is approximately 50 vertical feet. Two sets of tire tracks indicate that the road has been traveled by mobile equipment.
Gov. Ex. 6. Inspector Stumbo determined that it was reasonably likely that this violation would result in an injury that would be permanently disabling, that the violation was S&S, that one employee was affected, and that the operator’s negligence was high. A civil penalty in the amount of $4,440.00 was proposed for this violation. At trial, I credited Stumbo’s testimony and held that there were inadequate berms on part of the drill road, and that this was a significant and substantial violation attributable to unwarrantable failure to comply with the cited standard. See Black Beauty Coal Co., 32 FMSHRC 356 (Mar. 2010)(ALJ).
On review, the Commission upheld my determination that there was a violation, stating that a judge’s credibility determinations are entitled to deference and should not be overturned lightly. Black Beauty Coal Co., 34 FMSHRC at 1739 (citing Farmer v. Island Creek Coal Co., 14 FMSHRC 1537,1542 (Sept. 1992) and Penn Allegh. Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1982)).
The Commission
also found that substantial evidence supported my designation of the violation
as significant and substantial. To
determine that the citation was significant and substantial, the Commission
examined the facts of the violation and my original findings in light of the four
Mathies factors.[2]
Having affirmed the violation (and
thus, the first Mathies factor), the
Commission then upheld my original analysis of the second factor and found that
there was a discrete safety hazard created by inadequate berms, in that a
vehicle traveling along the elevated roadway could veer off and fall down the
spoil incline. The Commission also found
that substantial evidence supported my determination that the hazard at issue was
reasonably likely to cause an injury, since a truck over-traveling the side of
the road would fall approximately 50 feet down a steep incline. Black
Beauty Coal Co., 34 FMSHRC at 1742-43.
All parties agreed that this injury would be of a reasonably serious
nature. Thus, my S&S designation stands. In addition, the Commission held that the
inclusion of testimony regarding the operator’s negligence in “setting a poor
example” when a supervisor traveled the road, while irrelevant, was a harmless
error and did not affect the validity of the S&S analysis.
“Unwarrantable Failure” Determination on Remand
Upon review of my previous unwarrantable failure determination, the Commission found that the previous analysis failed to consider relevant evidence. In particular, the Commission held that evidence regarding the temporary nature of the road and the supervisor’s testimony suggesting that management was not aware of the lack of berms should have been considered. However, the Commission specifically disagreed with Black Beauty’s assertion that the judge erred in relying on the operator’s history of violations. Instead, the Commission stated that “[r]epeated similar violations may be 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.” Black Beauty Coal Co., 34 FMSHRC at1745 (citations omitted).
As stated above, the Commission has held that each of the following six factors must be considered when determining whether a specific violation is an unwarrantable failure: 1) the length of time that the violation has existed; 2) the extent of the violative condition; 3) whether the operator has been placed on notice that greater efforts were necessary for compliance; 4) the operator’s efforts in abating the violative condition; 5) whether the violation was obvious or posed a high degree of danger; and 6) the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346 (Dec. 2009).
In this case, the drill travel road was created for the exclusive use of the drill approximately two hours before the inspection, and would have been removed after the drill had been moved. Tr. 107, 123. The road would have been in existence for one to three days. Under these circumstances, the length of time the violation could have existed was short, as such roads are typically in existence for approximately one day. Tr. 114. The Commission explained that the temporary status of the road is relevant to both the length of time the violation existed and the degree of danger posed by the violation. The extent of the violation was also limited, since Inspector Stumbo stated only one person had driven on the road. Witnesses for the mine explained that the road had only one purpose, i.e. to move the drill. However, the road was used just prior to the inspection, not to move the drill, but by the drilling supervisor in his pickup because it was a shorter distance to the area below.
The Commission has also indicated in the decision that the mine management may not have knowledge of the existence of the road and the lack of berms based upon the testimony of Alano, the drilling and blasting supervisor. Alano had asked for the road to be built and traveled the road. He testified that he did not believe there was a problem with the berms on the road, that berms had been in place in part of the area and he believed them to be adequate, or at least not to pose a hazard. The Commission indicated that the relevant, and possibly mitigating evidence presented by Alano, that he found the road adequate, as to the berms, when he traveled it about the time Stumbo arrived, must be considered. The berm was lacking on part of the road, but Alano believed the berm to be adequate, at least on the part he traveled. In order to rely on the evidence of a good faith mistake as alleged by the mine, I must find Alano to be a credible witness and I do not. A person reasonably familiar with mining, and certainly the drilling and blasting supervisor at this mine, should be aware of the condition of the road and realize when berms are inadequate.
Black Beauty’s safety manager, Chad Wirthwein, testified that he felt the berms in place were adequate given the height and likely speed of the pickup truck that traveled the road. He explained that he believed that the berm was sufficient for the vehicles that would travel the area, the drill and pick-ups. Tr. 125. I do find this testimony to be credible and therefore agree that there was a mistake on the part of the mine which mitigates against the unwarrantable failure finding. Wirthwein also believed that the secondary berms from the previous road would adequately protect a driver. While, I do not agree with Wirthwein’s belief, given the testimony of Stumbo, it appears to be a good faith belief that the road was safe. Though I credit Inspector Stumbo’s testimony as to the existence of the violation itself, the obviousness of the violation, as it relates to the operator’s unwarrantable failure, was not demonstrated.
As stated in my significant and substantial analysis, this violation did pose a high degree of danger, since the lack of berms meant that a vehicle that veered off of the roadway would go over the side and cause serious and possibly fatal injuries to the driver. Black Beauty’s history of citations for similar berm violations prior to this particular inspection indicates that they were on notice that greater efforts were needed for compliance.
Upon re-examination of the testimony in this case and the six factors used by the Commission in determining whether a violation is an “unwarrantable failure,” I find that the Secretary has not met her burden of proof in showing that the violation was unwarrantable. While the evidence does demonstrate high negligence on the part of the mine, there is not sufficient evidence to support an unwarrantable failure. The short, limited use of the roadway in this particular context and the mine’s belief that the road was safe for those vehicles that would be used on the road in that short time, mitigate against the unwarrantable nature of the violation as does the limited danger posed by a temporary road. While there was a violation that was likely to result in serious injury, and the operator’s negligence was high, I find that this violation does not rise to an unwarrantable failure.
c. Order 6671177
Facts
and Commission Decision
On September 27, 2007, Stumbo returned to the mine and observed that Black Beauty was operating three haul trucks to transport material from a shovel to a dumpsite. He noted that parts of the dumpsite lacked the protection of any berms, and other sections had inadequate berms given the size of the vehicles in use. In addition, Stumbo observed that there was no miner acting as a spotter at the dumpsite. As a result, Stumbo issued Order No. 6671177, alleging a violation of 30 C.F.R. § 77.1605(k). The citation described the violation as follows:
On the 001 pit south end spoil bank, haul trucks are traveling and dumping in an area with an inadequate and non-existent berm. On the east side of the spoil bank, an inadequate berm measuring approximately 45” tall for a distance of approximately 38’. Another area has no berm for a distance of approximately 60’. Both areas are where three haul trucks, with a mid-axle height of approximately 66”, are traveling and dumping spoil. The vertical height of the spoil bank down to the dragline bench ranges from approximately 115’ on the east side to 129’ on the west side with a slope of approximately 40% grade.
Gov. Ex. 8. Prior to the hearing, the Secretary filed a
Motion to Amend Petition and Order to Plead in the Alternative proposing that,
if the facts at trial did not demonstrate a violation of 77.1605(k), which
addresses elevated roadways, then the Judge should consider them as a violation
of 30 C.F.R. § 77.1605(l), which applies to dumping locations. The alternative standard requires that “berms,
bumper blocks, safety blocks, or similar means shall be provided to prevent
over-travel and overturning at dumping locations.” At trial, I granted the
Secretary’s Motion to Amend. On appeal
to the Commission, Black Beauty argued that allowing the amendment was an error,
but the Commission held that the amended petition complied with section 104(a)
of the Mine Act, which states that “[e]ach citation shall be in writing and
shall describe with particularity the nature of the violation, including a
reference to the provision of the Act, standard, rule, regulation, or order alleged
to have been violated.” 30 U.S.C. 814(a).
The Commission noted that the purpose of this requirement is to allow
the operator to discern what conditions need abatement and to prepare for
hearing. Black Beauty Coal Co., 34 FMSHRC at 1746-47 (citations
omitted). In the context of this
purpose, the Commission affirmed my decision to allow the amended petition and
found that Black Beauty had not been prejudiced since it was able to abate the
violation completely and adequately prepare for trial.
The Commission also held that
substantial evidence supported my finding of a violation, emphasizing that it
is within a judge’s discretion to credit the testimony of one witness over
another. In addition, they found that
substantial evidence supported my conclusion that this violation was
significant and substantial.
“Unwarrantable
Failure” Determination on Remand
The
Commission held that my finding that this violation was attributable to an
unwarrantable failure to comply was not adequately supported.
The operator did show that the length of time that the violation has existed was short, and that a supervisor testified that he had ordered the trucks to halt dumping after the spotter left. Tr. 176-78. The fact that the supervisor ordered the trucks to halt while the spotter, who operated the grader, was called to another job, could indicate that the mine made some effort to avoid the violation. However, the driver Stumbo spoke with at the dumpsite made it clear that he knew there should have been a spotter, and yet admitted that there was not and continued to dump. I cannot credit Sams’ testimony that he ordered the hauling to stop given that the grader operator told the inspector there was no order to stop, and the truck driver continued to dump. In addition, this particular mine had a history of past berm violations, which should put them on notice that, in general, berms are an important part of preventing over-travel and must be consistently in place.
The difference between the required berm height and that of the highest berms in the area was significant enough that this violation was obvious. The dangers associated with such lack of berms, or any other means to prevent over-travel, are severe and include the possibility of a fatal accident.
With respect to the operator’s knowledge of the cited condition, I credit Stumbo’s testimony that the mine was on notice regarding its berm issues, and that the condition of the dumpsite was as he described it. This violation was particularly careless in light of the fact that on September 6, 2007, this mine had been issued a citation for the exact same problem (i.e., lack of means to prevent over-travel at the dumpsite), and had abated that citation by providing a spotter at the dumpsite. Gov. Ex. 3. A pattern of berm violations has begun to emerge at this mine, which indicates an indifference of management to the dangers associated with over-travel on elevated roadways and at dumpsites. Mine management knew that spotters or other means of preventing over-travel were necessary, and yet neglected to either provide them or completely ensure that work was halted when preventative measures were not present. In either case, the mine operator exhibited more than ordinary negligence, and I will therefore uphold the unwarrantable failure designation on the citation.
III. PENALTY
The principles governing the authority of Commission Administrative Law Judges to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R.§ 2700.28. The Act requires that, “in assessing civil monetary penalties, the Commission [ALJ] shall consider” six statutory penalty criteria:
[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect on the operator’s ability to continue in business, [5] the gravity of the violation, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i).
In keeping with this statutory requirement, the Commission has held that “findings of fact on the statutory penalty criteria must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). Once findings on the statutory criteria have been made, a judge’s penalty assessment for a particular violation is an exercise of discretion, which is “bounded by proper consideration of the statutory criteria and the deterrent purpose[s] . . . [of] the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 2000).
I accept the stipulation of the parties that the penalties proposed are appropriate to this operator’s size and ability to continue in business. The violations were abated in good faith, and no evidence has been presented to the contrary. The history shows a number of violations associated with inadequate berms, including the violations discussed above. I find that the proposed penalties for Citation Nos. 6671134 and 6671177 remain as initially determined, at $4,329.00 and $7,774.00 respectively. Since Order No. 6671135 has been reduced from an unwarrantable failure to a 104(a) citation with high negligence, I assess a reduced penalty of $3,330.00. Thus, the total penalty is $15,433.00.
IV. ORDER
Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. 820(i), I assess the penalties listed above for a total penalty of $15,433.00 for the citations decided after hearing. Black Beauty Coal Company is hereby ORDERED to pay the Secretary of Labor the sum of $15,433.00 within 30 days of the date of this decision.
/s/
Margaret A. Miller
Margaret A. Miller
Administrative Law Judge
Distribution: (First Class U.S. Mail)
Ed Waldman, U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Boulevard, Room 2228, Arlington, VA 22209
Lisa R. Williams, U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn Street, 8th Floor, Chicago, IL 60604
R. Henry Moore, Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222
[1] As the Commission stated in its decision, a dragline
is defined as “[a] type of excavating equipment that casts a rope-hung bucket a
considerable distance; collects the dug material by pulling the bucket towards
itself on the ground with a second rope; elevates the bucket; and dumps the
material on a spoil bank, in a hopper, or on a pile.” Black Beauty Coal Co., LAKE 2008-477, 2012 WL 3255590 at FN 3
(FMSHRC) (Aug. 2, 2012) (citing Dictionary
of Mining at 67).
[2] As stated
previously, these four factors include: (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. 1994).