FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                                                         OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001

March 12, 2012

DECISION

Appearances: Amanda Slater, Esq, U.S. Department of Labor, Denver, Colorado on behalf of the Secretary

                        William Kombol, Manager, Palmer Coking Coal, Co., LLP, Black Diamond,  Washington on behalf of Palmer Coking Coal, Co., LLP

Before:            Judge David F. Barbour

            These cases are before the Court on consolidated Petitions for Assessment of Penalty filed by the Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977. 30 U.S.C. § 815(d). The petitions allege that Palmer Coking Coal Co., LLC (“Palmer”) is liable for five violations of the Secretary’s Mandatory Safety Standards for Surface Metal and Nonmetal Mines. 30 C.F.R. Part 56. The Secretary proposes penalties of $5,280 for the violations. The parties presented testimony and evidence at a hearing in Tacoma, Washington.

                                                            STIPULATIONS

            At the commencement of the proceeding, counsel for the Secretary and the company’s representative and general manager, William Kombol, agreed:

            1. That Palmer . . . is the owner and operator of the Morgan Kame Terrace [Mine];

            2. That Palmer exhibited good faith in abating each of the violations at issue.

Tr. 8.

HISTORY OF PREVIOUS VIOLATIONS

            After these stipulations were entered, counsel for the Secretary introduced computer generated records showing the number of violations issued at the mine 15 months prior to the subject violations. Tr. 10-11. The print-outs reveal that the mine has an applicable previous history of 15 violations. Gov’t Exh. 17. By any measure, this is a small history. 

THE MINE AND MSHA’S INSPECTIONS

            At the time he testified, Anthony Turcotte was the acting health and safety manager of the Kettle River Operation of Kinross Gold Corporation, a Washington facility at which gold is mined and processed. Tr. 11. Turcotte had worked for Kinross for approximately one and one half years. Tr. 12. Before that, Turcotte worked for MSHA as a mine inspector. He started with MSHA in October, 2005, and he left in October, 2009. Id. Prior to joining the agency, Turcotte had considerable experience in surface and underground mining, much of it as an equipment operator. Tr. 13. As an MSHA inspector Turcotte visited both surface and underground mines. He estimated that he conducted between 60 and 75 inspections a year. Tr. 14.

            Palmer’s Morgan Kame Terrace Mine is a sand and gravel surface facility. It is located in King Country, Washington. Tr. 14. Turcotte believed that material extracted at the mine was used for cement, for road building, and for “similar type activities.” Id. Turcotte inspected the mine twice, once in December 2005, and again on October 4, 2006. Tr. 14. During the course of the inspections Turcotte saw Caterpillar front-end (“loaders”) and other smaller loaders operating at the mine. Turcotte testified that the Caterpillar loaders were manufactured in Illinois. Tr. 15.

            When Turcotte visited the mine in December, 2005, he was not yet a fully authorized inspector. He accompanied MSHA Inspector Gary Tolman. Traveling with Tolman was part of Turcotte’s training. Tr. 59-60. While at the mine in December, Tolman and Turcotte were accompanied by Peter West, Palmer’s safety manager. Tr. 64. When Turcotte returned to the mine on October 4, 2006, he did so as a full-fledged inspector and as MSHA’s sole representative. During the course of the October inspection Turcottte was again accompanied by West. Tr. 15-16. It was during this inspection that Turcotte served Citation No. 6396248 (Gov’t Exh. 1) on Palmer’s long time owner and mine manager, Kombol. Tr. 16-17.

                      CITATION NO.       DATE            30 C.F.R.§

                        6396248                   10/4/06           56.9300(a)

            The citation states:

                                    The berms of the [M]ain [H]aul [R]oad and the Morgan

                                    Terrace intersection were not maintained where a drop[-]

                                    off existed of sufficient grade or depth to cause a vehicle

                                    to overturn or endanger persons in equipment. The large

                                    rocks which were on the corner of the Morgan Terrance

                                    intersection and Main [H]aul [R]oad were knocked off the

                                    the drainage ditch below by passing slurry dump trucks.

                                    The slurry dump trucks travel the Morgan Terrance road

                                    4-5 times a day to dump slurry into the drainage ditch.

                                    The unbermed area was approximately 80-90 feet long

                                    and the drainage ditch was approximately 12 feet below

                                    the roadway[. The ditch] . . . had approx[imately] 1-2 feet of

                                    standing water. Tire tracts were observed along the edge

                                    of the unbermed roadway above the drainage ditch. The

                                    [M]ain [H]aul [R]oad, which intersects the Morgan

                                    Terrace [R]oad, was used daily by plant equipment and

                                    dump trucks to drive to the plant from the scale house,

                                    main shop and equipment ready line. The Mine

                                    Manager[,] Bill Kombol[,] stated that he travels the

                                    Main [H]aul [R]oad and the Morgan Terrace [R]oad

                                    one to two times per week to conduct visual safety

                                    inspections throughout the plant. The mine operator has

                                    engaged in aggravated conduct constituting more than

                                    ordinary negligence in that the hazardous condition was

                                    open and obvious, the same location had been cited on a

                                    previous inspection and the mine operator failed to take

                                    the corrective actions to correct the hazard. This

                                    violation is an unwarrantable failure to comply with a

                                    mandatory standard. Historically in the mining

                                    industry vehicle overturns from elevated roadways has

                                    been known to cause injuries of a serious nature.

                        Gov’t Exh. 1.

            Turcotte testified that he issued the citation because, “In the area along the Maine Haul Road in the Morgan Terrance Road intersection, I found that the rocks that were in place were knocked off of the roadway and were not sufficient to impede equipment from going off of the roadway.”Tr. 17. Turcotte cited the company for a violation of section 56.93009(a), a standard requiring berms to be provided and maintained on the banks of roadways where a drop-off exists of sufficient depth to cause a vehicle to overturn or endanger persons. Tr. 18. Turcotte believed that a drop-off would be of sufficient grade or depth to cause a vehicle to overturn if it was “nearly vertical or . . . would cause the piece of equipment to tip.” Tr. 34. According to Turcotte, drop-offs like that existed along the Morgan Terrace Road and the Main Haul Road intersection. Id., Tr. 34.

            Turcotte drew a diagram of the Main Haul Road and the Morgan Terrance Road. Gov’t Exh. 19. He noted on the diagram that the Main Haul Road began off a public county road at the back entrance to the mine. Tr. 19–20. (The county road is depicted and labeled on the left side of the diagram. Gov’t Exh. 19.) The Main Haul Road ran into the mine and past the mine’s wash plant, which is located on the south side of the haul road. Tr. 20. Further along, the Morgan Terrace Road intersected with the Main Haul Road on the haul road’s north side. Turcotte testified that the Morgan Terrace Road then continued on and entered private property. Kombol thought it ultimately lead to Kombol’s residence. Tr. 20-21. According to Turcotte, the road, which was subject to two way traffic, was regularly used by slurry trucks. The trucks traveled along the road to reach the point where slurry was dumped. Tr. 25, 28, 144. Turcotte testified that roads at the mine generally were approximately 15 feet wide (Tr. 27; Gov’t Exh. 1 at 3), which he described as “pretty narrow.” Tr. 28. Turcotte agreed, however, that at the point where the Main Haul Road intersected the Morgan Terrace Road, the road was approximately 30 feet wide. Tr. 83.

            Turcotte took a photograph of the intersection of the Main Haul Road and the Morgan Terrace Road while he was standing on the Main Haul Road facing the Morgan Terrace Road. Tr. 29; Gov’t Exh. 2 at 1. In the photograph two vehicles (a truck and an SUV) can be seen. Gov’t Exh. 2 at 1. Turcotte stated that vehicles were parked on the Morgan Terrace Road heading away from the Main Haul Road. Tr. 29. He also stated that a drop-off about which he was concerned was to the right of the vehicles, near the intersection. Id., 31. He recalled that the drop-off was difficult to see because vegetation had grown along its sides. Id. None the less, he maintained that the drop-off was nearly vertical and that it had one to two feet of standing water at its bottom. Tr. 30. Turcotte did not recall the exact depth of the drop-off, but he stated that it was “significant enough that it would need a berm.” Tr. 97.

            Trucotte also photographed tire tracks that ran along the right side of the Morgan Terrace Road when heading away from the Main Haul Road. Tr. 30; Gov’t Exh. 2 at 2. In Turcotte’s opinion the tracks came “dangerously close” to the edge of the road. Tr. 30. He described the tracks as passing, “within inches of the road’s edge.” Id. He believed the tracks were made by slurry trucks and that the trucks had to “take the corner tightly” when they turned from the Main Haul Road onto the Morgan Terrace Road. Id.

            Turcotte testified that there were no berms along the Morgan Terrace Road where the drop-off existed. Referring to his contemporaneous notes, Turcotte stated that approximately 80 to 90 feet of the road should have had berms. Tr. 31; Gov’t Exh. 1. Turcotte thought berms were also required at and near the intersection where the Morgan Terrace Road left the Main Haul Road. He could not mandate them beyond these points because he had no authority to require them on private property. Tr. 25, see also Tr. 82. However, he could and he did require them on mine property because some of the rocks formerly serving as berms had been pushed or had slid off the side of the road and into the drop-off, or into the “ditch,” as both Turcotte and Kombol sometimes called the drop-off. Tr. 32; Gov’t Exh. 2 at 4; see also Tr. 98-99. Other rocks had been pushed or had slid off the side of the road and part way down its bank. Tr. 87.

            Turcotte acknowledged that rocks had been purposefully placed along the road to abate a previous citation for missing berms, a citation issued by Inspector Gary Tolman in December, 2005. Tr. 88. Tolman approved of Palmer using the rocks as berms, something that Turcotte would not have done because Turcotte believed that, “[R]ocks do not serve [as] berms under the standard.” Id., see also Tr. 104. Turcotte did not recall whether or not he questioned Tolman about Tolman’s decision to allow Palmer to use rocks along the road. Tr. 95.

            In Turcotte’s opinion a berm could be located on either a road’s shoulder or its bank, “As long as the berm has a substantial base, . . . and is at least [the] mid axle height of the largest piece of equipment that travels the [road.]” Tr. 95. He further explained that during his training to become an inspector he learned that: “Earthen material has been proven historically to be a better protective device along roadways.” Tr. 96. He acknowledged however that such “earthen material” was not an exclusive berming agent and that other materials could be used for berm construction. Tr. 96. In any event, Turcotte emphasized that his actions were governed by the regulatory definition of “berm,” which states that the word:

                                    [M]eans a pile or mound of material along an

                                    elevated roadway capable of moderating or limiting

                                    the force of a vehicle in order to impede the vehicle’s

                                    passage over the bank of the roadway.

30 C.F.R. § 56.2, Tr. 89. Turcotte believed that the individual rocks used by Palmer with Tolman’s approval would be “ineffective” in impeding a vehicle’s passage over the bank of the roadway. Tr. 90. Moreover, they were not “sufficiently placed to impede a vehicle from going off the roadway.” Tr. 32.

            Turcotte found that if mining continued it was reasonably likely that a vehicle would overtravel the road and overturn. When it happened, the vehicle’s driver was reasonably likely to suffer at least a permanently disabling injury. Gov’t Exh. 1. He stated that “statistically [these are] the type[s] of injuries that occurred in . . . similar accidents.” Tr. 35. He noted that the road was traveled frequently each work day and the extent of the unbearmed area meant that there was an increased chance that a vehicle would leave the road and go over the unbermed edge. Tr. 38-39. Further, the steep nature of the drop-off increased the likelihood that a vehicle would overturn once it left the road. Tr. 40.

            The inspector also found that the alleged violation was caused by Palmer’s high negligence and unwarrantable failure. He believed that the lack of berms in the cited areas was visually obvious and he noted that Kombol traveled past the area “one or two times per week,” something that Kombol acknowledged. Tr. 40, 166; see Gov’t Exh. 1 at 5. Turcotte also observed that Palmer was placed on notice that berms were required in December, 2005 (Tr. 41-42), and that Tolman then “reviewed the [cited] standard with the accompanying person from the mine, [and] discussed the standard[’s] requirements and the abatement [with the person.]” Tr. 42.

            To abate the alleged violation cited by Turcotte, the company put earthen berms along the shoulder of the cited areas. The dirt was approximately 36 inches high (Tr. 34), which Turcotte believed was sufficient to impede all vehicles that used the road. Tr. 33. See e.g., Gov’t Exh. 2 at 5.

            For his part Kombol maintained that only one rock had slipped out of place since December, 2005. It was about two feet off the side of the road and down the bank. According to Kombol, all of the other rocks were “adjacent to the shoulder of the road.” Tr. 169.

            Kombol testified that the rocks were deliberately put on the bank of the road rather than on the shoulder “to prevent a vehicle from traveling off the bank.” Tr. 169; see also Tr. 125. He repeatedly emphasized that to the best of his recollection, on October 4, 2006, the rocks were “precisely where [Palmer] placed them in December[,] 2005.” Tr. 124, 135. In Kombol’s view, the only problem was at the corner of the intersection where one rock had slipped down the bank. However, this was not a serious problem because trucks traveled very slowly as they turned onto the Morgan Terrace Road. Tr. 140, 163. Therefore, the defect in the berm was not especially hazardous. Tr. 163.

            Kombol acknowledged that prior to December, 2005, no berms existed along any of the mine’s roads. Kombol stated:

                                    [The] roads in the previous 20 years hadn’t been

                                    bermed. We were issued a citation so we went

                                    ahead and bermed them. Nobody in our operation

                                    and none of the previous inspectors had ever

                                    considered them to be a problem but Tolman did

                                    so we bermed them.

                        Tr. 133.

THE VIOLATION

            As previously noted, the standard requires that: “Berms or guardrails shall be provided and maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.” Citation No. 6396248 charges that, “The berms of the [M]ain [H]aul [R]oad and the Morgan Terrace intersection were not maintained where a drop [-] off existed of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.” To prove a violation of the standard the Secretary has to show that “the . . . berms . . . [did] not measure up to the kind that a reasonably prudent person would provide under the circumstances” and she must do so “in the context of the preventive purpose of the statute.” United States Steel Corporation, 5 FMSHRC 3 at 5 (January 1983). In a case where some material purporting to act as a berm is present, the Secretary does not need to establish that the berm material would prevent a vehicle from overtraveling the road. Rather, she must show that the material would not allow for the reasonable control and guidance of a vehicle’s motion. See Dannen & Jansen, Inc., 18 FMSHRC 1796, 1816.

            The Court concludes that the Secretary proved that at the cited intersection and along the road rocks which had once acted as a berm were no longer where they were originally placed and were insufficient in number and location to impede vehicles using the road – including the slurry trucks – from going off of the road and over the drop-off. Tr. 17, 25, 28, 144. The Court fully credits Turcotte’s testimony in this regard. Further, the photographs of the cited area taken by Turcotte during the October 4 inspection clearly show that while some rocks were present off the side of the road and down the bank, they were insufficient in number, size, and location to control and guide a vehicle should the vehicle start to leave the road. Gov’t Exh. 2 at 1 and 2; See Tr. 90-94, 149. Indeed, the lack of adequate berming is so patently obvious it is highly improbable that as Kombol contended all but one of the rocks was where they were placed in December, 2005. For this reason, the Court credits Turcotte’s testimony that most of the rocks had been pushed or had slid off the side of the road and down its shoulder and that some had ended up in the “ditch.” Tr. 32, 87, 98-99, Gov’t Exh. 2 at 4. In addition, it is obvious to the Court that Turcotte was right in his belief that once a vehicle overtraveled the road and went over the drop-off, the vehicle was in danger of overturning. Tr. 97.

            Even if Kombol was correct and only one rock at the corner of the intersection had slipped down the bank (Tr. 143, 163), the Court would find the company in violation of the standard because the “slip” would have created a gap in the berm material at the intersection and would have left nothing to help the driver of an overtraveling vehicle regain guidance and control of the vehicle before going over the drop-off and into the “ditch.” The Court finds Kombol’s belief that the defect was not particularly hazardous because trucks moved slowly past the area inapposite to the issue of whether there was a violation of the standard at the intersection. Tr. 163. Even the driver of a slow moving vehicle can suffer a lapse in judgement and overtravel a road.

S&S AND GRAVITY

            As a general proposition, a violation is properly designated as a significant and substantial contribution to a mine safety hazard (an S&S violation) if, based on particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to by the violation will result in an injury or an illness of a reasonably serious nature. Cement Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission explained.

                                    In order to establish that a violation of a mandatory

                                    safety standard is [S&S] under National Gypsum,

                                    the Secretary . . . must prove: (1) the underlying

                                    violation of a mandatory safety standard; (2) a

                                    discrete safety hazard – that is a measure of

                                    danger to safety – contributed to by the violation;

                                    (3) a reasonable likelihood that the hazard

                                    contributed to will result in an injury; and (4) a

                                    reasonable likelihood that the injury in question

                                    will be of a reasonably serious nature.

6 FMSRHC at 3-4; see also Austin Power v. Secretary, 861 F.2d 99, 103-104 (5^th Cir. 1988), aff’g 8 FMSHRC 2015, 2021 (December 1987) (approving Mathies criteria).

            In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (August 1985), the Commission explained part three of its Mathies criteria as follows:         

                                    [T]he third element of Mathies . . . “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)

                                    (emphasis in original).

            The Commission subsequently reasserted its prior determination that as a part of any S&S finding, the Secretary must prove the reasonable likelihood of an injury occurring as a result of the hazard contributed to by the cited violative condition or practice. Peabody Coal Co., 17 FMSHRC 508 (April 1995); Jim Walter Resources, Inc.,18 FMSHRC 508 (April 1996). However, the Secretary is not required to show that it is more probable than not that an injury will result from a violation. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996).

            Resolution of whether an inspector’s S&S finding is proper must be made assuming continued normal mining operations. U.S. Steel Mining Co., 18 FMSRHC 1541, 1550 (September 1996). Thus, consideration must be given to both the time that a violative condition existed prior to the issuance of a citation, and the time that it would have existed if normal operations had continued. Bellefonte Lime Co., 20 FMSRHC 1250 (November 1998); Halfway, Inc., 8 FMSRHC 8, 12 (January 1986). Further, the question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Texas Gulf, Inc., 10 FMSHRC 498 (April 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (December 1987). Finally, the Commission and the Courts have held that the opinion of an experienced MSHA inspector that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 175, 179 (December 1998); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-136 (7^th Cir. 1995).

            The gravity of a violation is not synonymous with its S&S nature. The Commission has pointed out that the “focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (September 1996).

            The Court concludes that Inspector Turcotte properly found the violation to be S&S. Tracking the Commission’s explanation of the term “S&S,” the Court notes that there was a violation of section 56.9300(a) and that the violation, the lack of berms above a steep drop-off on a well traveled road, contributed to the hazard that a vehicle – most likely a slurry truck – turning onto the road and continued along it would go off the road’s shoulder and over the bank. Because most of the rocks that served as berms were pushed or had slipped down the shoulder, there was little in place to restrain the vehicle and alert the driver to take corrective action. By the time the driver realized that the truck was off of the road, it would be on its way to the bottom of the drop-off and in danger of overturning.

            Moreover, given the unchallenged testimony that slurry trucks used the road (Tr. 25, 28, 144), the fact that other vehicles also used the road at times [ ], and Turcotte’s credible description of tire tracks that passed dangerously close to the edge of the road (Tr. 30), the Court concludes that during the time the road lacked adequate berms and during the time it would have lacked them as mining continued, it was reasonably likely a vehicle would have left the road, plunged down the bank and that the driver would have suffered at least a reasonably serious injury. In addition, although the Court credits Kombol’s statement that trucks traveled slowly when they turned onto the Morgan Terrace road (Tr. 163), it finds that with no adequate berm present, even a slow moving vehicle would be prone to go off the road and down the road’s bank if it traveled too close to road’s edge, and the Court is mindful of Turcotte’s credible testimony that tire tracks indicated vehicles passed dangerously close to the edge. Tr. 30.

              The Court also concludes that the violation was very serious. If because of the lack of a

berm a slurry truck or other vehicle left the road, was unable to correct its movement, traveled over the drop-off, and overturned, the driver was likely to suffer a serious injury or even to be killed.

UNWARRANTABLE FAILURE AND NEGLIGENCE

            The term “unwarrantable failure” is defined as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (December 1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or “serious lack of reasonable care.” Id.; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-194 (February 1991). Aggravating factors include 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 was obvious or posed a high degree of danger and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340 (March 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (February 1994); Windsor Coal Co, 21 FMSRHC 997,1000 (September 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001).

            The Secretary’s regulation at 30 C.F.R. §100.3(d) provides that:

                                    Negligence is conduct, either by commission or omission,

                                    which falls below a standard of care established under

                                    the Mine Act to protect miners against the risks of

                                    harm. Under the Mine Act, an operator is held to a

                                    high standard of care. A mine operator is required to be

                                    on the alert for conditions and practices in the mine that

                                    affect the safety or health of miners and to take steps

                                    necessary to correct or prevent hazardous conditions

                                    or practices. The failure to exercise a high standard of

                                    care constitutes negligence.

The Secretary also states that “moderate” negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” 30 C.F.R. § 100.3, Table X. While her characterizations do not bind the Court, they provide an analytical framework to assess Palmer’s degree of negligence.

            Turcotte found that the violation was due to Palmer’s unwarrantable failure and high negligence, but the Court finds that it was due to neither. Gov’t Exh. 1. Turcotte’s findings were premised on the fact that Palmer was told in December, 2005 that berms were required, that the lack of adequate berms was visually obvious and that Kombol passed the area one of two times per week. Tr. 40. Kombol disputed the alleged visibility of rocks, although he agreed that he passed the cited area once or twice a week. Tr. 166.

            Considering all of the factors, the Court concludes that mitigating circumstances warrant finding that the violation was due to Palmer’s moderate neglect. The Secretary concedes that Palmer’s use of rocks as berms was approved by Tolman. The rocks were put in place approximately 10 months before Turcotte’s inspection. It is clear that in those ten months the “berms” approved by Tolman degraded, and it is reasonable to assume that their condition deteriorated over time as they were subject to changes in the weather and to passing traffic. The gradual progression of the berms from compliance in December, 2005, to noncompliance in October, 2006, suggests that the violation was not the result of Palmer’s intentional disregard of the need for berms or of is indifference. Although Kombol passed the cited area once or twice a week as he traveled the road (Tr. 166), both Turcotte and Kombol agreed that vegetation grew up and obscured many of the rocks. Like the degradation of the berms, the growth of the vegetation did not happen all at once but occurred gradually over time, starting in the spring of 2006. By the time Turcotte came to the mine in October, 2006, almost all of the rocks had been pushed or had slipped out of place and their location had been hidden. Tr. 124. 134-135. Palmer’s failure to detect that many of the rocks were no longer where they had been in December 2005, constituted a failure to exercise reasonable care. However, given the fact that there was no showing Palmer should have been aware that the rocks might be pushed or might slip and no showing that a reasonable operator in similar circumstances would have cut or otherwise defoliated the vegetation, Palmer’s failure was mitigated. The likely gradual displacement of the rocks and their measured disappearance under a cover of the growing vegetation meant that the inadequacy of the berms easily could be overlooked by someone who repeatedly passed their locations.

                        CITATION NO.       DATE            30 C.F.R. §

                        6396249                    10/4/06           56.9300(a)

            The citation states:

                                    The Main Access road through the yard from the shop to

                                    the Main Haul road did not have berms where a drop[-]off

                                    existed of sufficient grade or depth to cause a vehicle to

                                    overturn or endanger person in equipment. The unbermed

                                    portion of the roadway was approximately 65-70 feet long

                                    and was elevated approx. 3-4 feet. The area was excavated

                                    approx. 2 months ago, backfill was put in to establish the

                                    roadway but berms were not installed. The roadway was

                                    used daily by plant equipment and dump trucks to drive

                                    from the plant to the scale house, mail shop and equip-

                                    ment ready line. Mine Manager Bill Kombol stated that

                                    he travels the roadway one or two times per week to

                                    conduct visual safety inspections throughout the plant.

                                    The mine operator has engaged in aggravated conduct

                                    constituting more than ordinary negligence in that the

                                    hazardous condition was open and obvious and the

                                    mine operator failed to take corrective actions to

                                    correct the hazard. This violation was an unwarrantable

                                    failure to comply with a mandatory safety standard.

                                    Historically in the mining industry vehicle overturns

                                    from elevated roadways has been known to cause

                                    injuries of a serious nature.

                        Gov’t Exh. 3.

            At the hearing there was a dispute between Turcotte and Kombol as to whether the area cited was along a separate road, the Shop Access Road, or was along a continuation of the Main Haul Road. See Tr. 45, 118. Inspector Turcotte testified that the cited area was along the Shop Access Road. Tr. 45, Gov’t Exh. 19. Kombol stated that the cited area was along a continuation of the Main Haul Road. Tr. 118. The dispute was one of nomenclature only. What is certain from the testimony of both men and from the exhibits is that the cited area was along a road that turned off of the Main Haul Road and lead to the mine’s shop and office. See e.g., Tr. 45, 47, 118; Gov’t Exh. 19. Although the Court recognizes that the road could in fact be viewed as a continuation of the Main Haul Road, it also could be viewed as a separate road, and for the sake of clarity when discussing the citation, the Court will refer to the road as the Shop Access Road.

            Turcotte labeled the Shop Access Road on Government Exhibit 19. Tr. 45; Gov’t Exh. 19. He indicated with a green line where there was an elevated part of the road and where there were no berms. Tr. 46; Gov’t Exh. 19. He testified that the road was uses primarily to reach the mine’s shop and office. Tr. 47.

            Turcotte photographed the conditions that he cited along the Shop Access Road. Gov’t Exh. 4. He testified that one of the photographs showed where material had been used to elevate the road. Tr. 49, Gov’t Exh. 4 at 1. He stated that there was a “nearly vertical” three to four foot drop-off along one side of the road, a drop-off that he believed was sufficient to cause a vehicle to overturn if the equipment operator “misjudged the shoulder” and went off of the road. Tr. 50; see also Tr. 106. Turcotte estimated that the areas cited were approximately an eighth of a mile or less from the mine office, and that approximately one half of the Shop Access Road lacked adequate berms. Tr.56. 108. Because of constant traffic to and from the shop and mine office, Turcotte testified that the road was traveled by mine personnel on a “regular” basis. Tr. 46. Indeed, on the day of the inspection he had saw front end loaders and employees’ personal vehicles using the road. Id. After referring to his contemporaneous notes, Turcotte testified that the road was 15 feet wide and that its shoulders were soft. Tr. 50, 54. The condition of the shoulders made it more difficult for vehicles to recover if they overtraveled the road. Tr. 54.

            Turcotte acknowledged that operators of the equipment wore seat belts, therefore he did not expect overturned vehicles to result in fatal injuries. Still, various types of spinal injuries were reasonably likely. Tr. 55. According to Turcotte, the hazards conditions were eliminated when Palmer installed berms along the road. Tr. 53; Gov’t Exh. 4 at 3.

            For his part, Kombol maintained that the “drop-off” about which Turcotte was concerned existed on one side of the road only, and that it was not a vertical drop but rather a slope of between 30 and 45 degrees. Tr. 121, 127. He further maintained that the incline resulted in a difference of elevation of 12 inches to 18 inches between the top of the road and the bottom of the incline, not three to four feet. In Kombol’s opinion the incline was insufficient to cause a vehicle to overturn if the vehicle ran off of the road. Tr. 128; 142-143; Gov’t Exh. 4 at 1. What Turcotte described as a “drop-off,” Kombol’s described as “a very mild slope . . . protected by a shoulder.” Tr. 135.

            Kombol testified that the company abated the condition by simply smoothing out the incline. He was sure that the company did not add berm material along the side of the road, and he described Turcotte’s contrary testimony as “not true.” Tr. 128.

            In addition to the elevated portion of the road, Turcotte recalled another area that required a berm, an excavated area on one side of the road. Tr. 51. Turcotte testified that the excavation was between 6 to 8 feet deep, and was approximately 20 feet from the edge of the road. Tr. 52, 107. Turcotte circled the area in green on Government Exhibit 19. Tr. 51; Gov’t Exh. 19. Turcotte testified that the side of the road bordering the excavation lacked a berm ( Tr. 51; Gov’t Exh. 4 at 2) and that there was nothing to stop a vehicle that ran off the road from falling into the excavation. Tr. 51.

            Because the excavated area was adjacent to the road and because of the significant number of vehicles that traveled the road and past the excavation daily, Turcotte stated that it was reasonably likely a vehicle would go off the road and fall into the excavation. Id. He also speculated that if a vehicle pulled off of the road in the fog to let another vehicle pass, the vehicle that pulled off could easily be driven into the excavation by mistake. Tr. 55. Turcotte found that the alleged violation was S&S.

            Turcotte described the cited areas as “open and obvious.” Tr. 56. Turcotte recalled that Kombol said he traveled the cited parts of the road one to two times a week. Id. Turcotte also noted that the company had been cited for violations of section 56.9300(a) by Inspector Tolman in December, 2005. Id., see also Tr. 68-70; Gov’t Exh. 4. For all of these reasons Turcotte conclude that the alleged violation was due to the company’s unwarrantable failure and high negligence. Id.; Gov’t Exh. 3.

            Kombol agreed that the excavated area existed, but he maintained that it was located on the side of the road opposite from where Turcotte placed it. Tr. 121, 129; Gov’t Exh. 18. Instead of a depth of 6 to 8 feet, Kombol estimated the area was approximately 3 to 4 feet deep. Tr. 129; Gov’t Exh. 19. Kombol also testified that the excavated area was approximately 63 feet to 100 feet from the edge of the road. Tr. 131; see also Tr. 136, 143. As for Inspector Turcotte’s contention that Kombol should have known of the lack of berms because he traveled the road once or twice a week, Kombol agreed that he traveled the road just as Trucotte testified, but he maintained that when he did, he did not see anything amiss. He stated, “I [drove] through there and I . . . look[ed] around. It look[ed] good to me.” Tr. 161. Moreover, according to Kombol, in August, 2006, three months prior to Turcotte’s October, 2006 inspection, two other MSHA inspectors visited the mine. Kombol testified the inspectors drove the same roads as Turcotte and that conditions were “almost the same” as during Turcotte’s inspection. Tr. 139. Yet, the inspectors issued no citations for inadequate berms. Id. If the violation existed, Kombol questioned how it could be the result of the company’s unwarrantable failure given the fact that the company was not cited in August. Tr. 140. Kombol believed that a logical inference to draw from the lack of citations prior to Turcotte’s visit was that the company was “doing a good job” in maintaining the berms. Tr. 160, 162.

            Kombol noted that the company had a safety committee and that minutes of the committee’s meetings were recorded by safety manager, West. The company introduced into evidence copies of West’s minutes of the meetings of January through September, 2006. Resp. Exh. 8; see Tr. 153. On January 4, 2006, shortly after Tolman’s citation was issued, West wrote, “We agree that all b[e]rms are good and road[s] that are not being used are blocked.” Resp. Exh. 8. On February 9, 2006, West wrote, “B[e]rms and blocked roads are in place.” Id. On March 6, 2006, West wrote that another employee told him that “[A]ll non-used roads are blocked and all b[e]rms are good.” Id. Kombol noted that although the minutes dated August 4, 2006, mention violations found by MSHA inspectors on August 4, 2006, no violations of section 56.9300(a) were mentioned in the notes because MSHA’s inspectors found no such violations. Tr. 156; Resp. Exh. 8. According to the minutes, on August 9, 2006, West was told by another miner that “[t]he b[e]rms [were] in place.” Resp. Exh. 8. On September 4, 2006, in minutes of the last safety meeting before Turcotte’s October inspection, West wrote that the

“[b]erms were good.” Id.

THE VIOLATION

            The Court finds that the testimony establishes that significant portions of both sides of the Shop Access Road were elevated but not in such a way that berms were required. The Court does not accept Turcotte’s testimony that the road was elevated so as to cause a “nearly vertical” drop of between three to four feet. Tr. 50. Turcotte photographed the areas that lacked berms (Gov’t Exh. 4 at 1, 2) and the photographs suggest that Kombol was right when he testified the difference in elevation was between 12 to 18 inches, rather than three to four feet, and that the difference produced a “mild slope,” one that was not likely to cause an overtraveling vehicle to overturn or to endanger those in the vehicle’s cab. Tr. 128; see Gov’t Exh. 4 at 1, 2. The limited and gradual nature of the slop can also be inferred from the fact that, as Kombol maintained, the allegedly dangerous condition was not abated through the installation of berms, but rather, as the citation states, through smoothing out or “sloping” the road. Gov’t Exh. 3; Tr. 128. In all likelihood this would not have happened had the three to four foot “nearly vertical” drop described by Inspector Turcotte existed. Tr. 50.

            Further, the Court finds that although there was an excavated area, it was not sufficiently adjacent to the Shop Access Road to require the road to be bermed. The Court recognizes that the witnesses disagreed as to the depth of the excavated area, Turcotte maintained it was 6 to 8 feet deep (Tr. 52, 107) and Kombol maintained it was 3 to 4 feet deep. Tr. 129. Under either version the area was deep enough to cause a vehicle to overturn and to endanger those in the vehicle. The Court also recognizes that the witnesses disagreed as to location of the excavated area, Turcotte stating it was on the east side of the Shop Access Road, and Kombol placed it on the west side. Tr. Tr. 51-52, 121,129; Gov’t Exh. 1. Since the Shop Access Road was traveled in both directions, it is not critical who was correct. Rather, it is the distance of the excavated area from the edge of the road that is decisive. Turcotte testified that the distance was 20 feet from the edge. Tr. 50, 107. Kombol maintained that it was at its closest approximately 63 feet from the edge and that because the excavated area did not run exactly parallel to the road that at its farthest it was approximately 100 feet from the edge. Tr. 131; Gov’t Exh. 4 at 4; see also Tr. 136, 143. The Court credits Kombol’s version of the facts. Not only was his testimony more definite, the photo taken after the condition was abated shows a distance far greater than the 20 feet testified to by Trucotte. Gov’t Exh. 4 at 4. The Court concludes from this that there was sufficient distance between the edge of the road and the excavated area for a vehicle that overtraveled the road to stop before it reached the excavation and its attendant dangers.

            For these reasons, the Court finds that the excavated area did not pose a hazard to vehicles traveling the road adjacent to it, and the Court concludes that the Secretary did not establish the violation of section 56.9300(a) that is alleged in Citation No. 6396249.

                                    CITATION NO.      DATE            30 C.F.R. §

                                    8556174                     7/12/10           56.14100(b)

            The citation states:

                                                The ground plug was missing from the energized

                                                110 volt drop light cord . . . located on the North

                                                wall of the shop. The drop light is used in the

                                                shop area while working on equipment. Without

                                                the energized system being grounded and with

                                                persons working with the energized light a

                                                serious injury could occur.

                                    Gov’t Exh. 10.

            MSHA Inspector Gary Hebel is assigned to the agency’s Kent, Washington office. He has been employed by MSHA since 1998. Tr. 171. Prior to working for the agency, Hebel had a long career as an electrician and an electrical foreman for various engineering firms and metal mines. Tr. 171-172. Hebel conducts between 70 and 75 mine inspections a year. Tr. 172-174. Hebel testified that he inspected Palmer’s mine on July 12, 2010, and that during the inspection he was accompanied by Palmer miner, Troy Box. According to Hebel, he and Box visited “Everywhere people work[ed] and travel[ed].” Tr. 175.

            During the inspection Hebel had occasion to cite the company for a violation of 30 C.F.R. §56.14100(b), which states in part that, “Defects on any equipment . . . that effect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” Hebel issued the citation when he noticed a defective plug on a drop light cord. Tr. 176. He described the cited equipment as “a mobile light on the end of [a] cord.” Id. He stated that the cord was designed to be and was plugged into a receptacle that carried 110 volts of electricity. Id.

            Hebel took photographs of the cord and its plug. Gov’t Exh. 11. One of the photographs shows that the ground prong was in fact missing from the plug. Tr. 177, Gov’t Exh. 11. Another shows the cord’s ground wire. Still another shows a replacement plug with a ground prong. See Gov’t Exh. 11. The replacement plug was installed to abate the cited condition. Id. Hebel explained that plugs are manufactured with a ground prong but that as the plugs are used, “normally [the prongs] get broke off.” Tr. 178. Hebel was certain that the ground prong did not break off when he unplugged the cord to inspect it. Tr. 180; see also Tr. 195. Rather, it had broken off earlier. Id.

            Kombol testified that it was standard procedure for miners to check ground prongs prior to using any plug. Tr. 203. The goal was to ensure that the equipment powered via the plugs and cords as well as the cords themselves were properly grounded. Id. Kombol stated that the shop’s main mechanic, Jack Hope, told him that the ground prongs did not fit well into the receptacles at the mine and as a result the prongs frequently broke off “on their own accord” when they were pulled out of the connectors. Tr. 203. In Hope’s view, this had been a problem since “they started manufacturing [the plugs] overseas.” Id.

            Hebel testified that the drop light was used by mechanics when doing maintenance work on mobile equipment at the shop. Tr. 178-179. The light gave the mechanics better and more precise illumination. Tr. 178; Gov’t Exh. 10 at 2. The ground prong protected the mechanics or other miners using the light from severe shock caused by a short. Tr. 170.

            When Hebel found the defective plug, the cord was plugged in, which indicated to Hebel that the light was used when the plug was defective and that the defect was not corrected in a timely manner. Tr. 179. (“You have to plug it in to make it work.” Tr. 184.) In other words, Hebel believed someone used the defective cord and did not repair the defect. Id. However, at the time of the inspection Hebel was told that management personnel did not know the plug was defective, and he was assured that “[Palmer did] yearly continuity resistance tests on their equipment and if they . . . found [the defect], they would have pulled [the equipment] out of service.” Tr. 180-181.

            In Hebel’s opinion the fact that the prong was missing was “pretty obvious.” Tr. 185. The defect should have been detected as part of the work place examination of equipment that takes place before equipment was used. Id. Hebel looked at the company’s work place examination records. The condition of the light cord’s plug was not reported. Tr. 200

            Hebel testified that if the light and cord continued to be used with the defective plug, “the extension cord would short . . . [which] could result in a fatal injury, as it only takes five mili-amps or less to stop a heart.” Tr. 181. Or, if the light’s bulb broke and a mechanic touched the electrical components inside the light, the person could suffer a serious shock. Tr. 182-183. One person, most likely the mechanic using the light, was exposed to the hazard. Id. Because he concluded that a serious injury was “more reasonably likely than not,” Hebel found that the condition of the plug was an S&S violation. Tr. 181; See also Tr. 199. He testified that at the close of the inspection he discussed the alleged violation with Troy Box. Hebel was under the impression that Box agreed that the citation was warranted. Tr. 183; Gov’t Exh. 18.

THE VIOLATION

            As noted, section 56.14100(b) requires that defects on equipment that “affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” When determining whether the standard has been violated the evidence must be evaluated in the light of what a “reasonably prudent person, familiar with the mining industry and the protective purpose of the standard, would have provided in order to meet the protection intended by the standard.” See e.g., Cannon Coal Co., 9 FMSHRC 667. 668 (April 1987); Quinland Coal, Inc., 9 FMSHRC 1614-1618 (September 1987). Ideal Cement Co., 12 FMSHJRC 2409, 2415 (September 1990). Apply this test, the Court finds that the Secretary easily established the violation. There is no dispute about the defect. The ground prong of the plug was missing just as Hebel testified and just as Government Exhibit 11 shows. Tr. 176; Gov’t Exh. 11. As Hebel stated, the lack of a ground prong created the hazard of a short circuit resulting in a shock injury to or in the electrocution of a miner using the light. Tr. 181, 182-183. A reasonably prudent person familiar with the mining industry and the electrical hazards associated with it would have ensured that the plug had a ground prong.

            In addition, it was incumbent on the Secretary to show that Palmer’s failure to be aware of and to correct the defect was unreasonable, which means that the Secretary had to offer evidence as to when the defect occurred or when Palmer should have been aware of the defect. Oil-Dri Corporation of Georgia, 34 FMSHRC __, SE 2008-793M, etc. (February 14, 2012) (Judge Rae) at 16. The Court has no problem in finding the Secretary successfully bore her burden of proof. The most logical inference to draw from Herbel’s unrebutted testimony that the cord was plugged in when he found it (Tr.179) and from his credible testimony that he was certain the ground prong did not break off when he unplugged the cord (Tr. 180; also see Tr. 195), is that the prong was missing when the droplight was last used. Herbel testified that it was “normal” for the ground prong to “get broke off” (Tr. 178), and Kombol testified that he was told by the company’s main mechanic about how frequently prongs broke off. Tr. 203. Given the company’s knowledge of the unreliability of the prongs, it was incumbent on Palmer to ensure that a prong was always in place before the cord was used. Indeed, according to Kombol, the company recognized this by making it a policy at the mine for miners to make sure that ground prongs were present before they used affected equipment. Id. Either this did not happen in the case of the drop light, or, if it did, a miner used the equipment anyway. Given all of this, the only conclusion the Court can reach is that the defect was not corrected in a timely manner.

S&S AND GRAVITY

Hebel found that the violation was S&S, and the Court agrees. Just as Hebel testified, as mining continued the light and its cord would be subject to continuing use, and it was reasonably likely that the resulting stains and stresses on the light and cord would lead to a short in the cord’s wiring. Without a ground prong to immediately shut down the power it was equally likely that the miner using the light would suffer a serious or even a fatal injury. Tr. 181-183; see also Tr. 199.

            In addition to being S&S, the violation was serious. The Court has been instructed to focus on “the effect of the hazard if it occurs.”Consolidation Coal Co., 18 FMSHRC 1541, 1550 (September 1996). The Court concludes that the inspector’s unrefuted testimony that a serious electrical injury or a death could result from the equipment shorting is determinative of the violation’s gravity. Tr. 179-181.

NEGLIGENCE

            Although at the time he cited the violation Hebel found that it was the result of Palmer’s “low” negligence (Gov’t Exh. 10), his testimony establishes that the company’s negligence was at least moderate. Palmer should have detected the missing prong and corrected the condition. Herbel’s belief that the condition was “pretty obvious” (Tr. 185) was confirmed by the photographic evidence. Gov’t Exh. 11. Moreover, Herbel’s opinion that the hazardous condition should have been detected and reported by the work place examiner was not countered by Palmer. Indeed, the fact that the company recognized the hazard and the importance of protecting its miners through properly grounded equipment was emphasized by Kombol’s testimony. Tr.203. Herbel looked at the company’s work place examination books to determine whether the defect had been noted. Nothing was recorded. Tr. 200. The fact that Palmer failed to detect and correct the “pretty obvious” (Tr. 185) defective condition - a condition about which it cautioned its miners - means that Palmer failed to meet its required standard of care.

                                    CITATION NO.       DATE            30 C.F.R. §

                                    8556175                    7/12/10           56.12004

            The citation states:

                        The energized 16-3 SO type cable powering the Metal Cutting

                        Band Saw located in the [w]ash plant parts trailer had pulled out

                        of the motor approximately ½" allowing the inner conductors

                        to be exposed to mechanical damage. No visible damage could

                        be seen to the conductors at this time. Persons use the saw one

                        or more times a week. With the inner conductors exposed to

                        damage and with persons using the system a serious injury

                        could occur.

            Gov’t Exh. 12.

            Hebel testified that during his July 12 inspection, he found that a cable powering a band saw had pulled out one half inch from the saw motor’s metal housing exposing the cable’s inner conductors to possible damage. Tr. 185-186. Hebel readily acknowledged however that at the time he saw the condition neither the inner conductors nor the cable’s outer jacket appeared damaged. Tr. 186, 189. Hebel explained that the inner conductors about which he was concerned were the cable’s interior wires. They were insulated, but “not as good as the outer jacket . . . of the cable.”Id. Herbal identified a photograph he took that showed “where the cable . . . [that powered the band saw had] pulled out of the motor housing, exposing the inner conductors to the . . . sharp metal of the motor[’s] housing.” Tr. 188; Gov’t Exh. 13. The situation concerned Hebel because the band saw cable carried 110 volts of electricity, the exposed interior conductors were near the sharp metal edges of the housing, and the band saw housing was subject to “a lot of vibration” when the saw was used. Tr. 188. 

            Although Kombol stated he did not contest the fact that the cable had pulled out the housing, he testified that he was told that only 1/4th inch of the cable’s conductors was exposed, not ½ inch as Hebel contended. Tr. 204. Kombol agree with Herbal that the cable’s inner conductors appeared to be fully insulated. Id.

            According to Hebel, the band saw was energized at the time he observed the condition. Tr. 189. If the saw was used and the insulation of the exposed inner conductors was damaged by being rubbed by vibrations against the sharp metal of the housing, the naked conductors could touch the metal housing and cause a short circuit that could seriously injure the band saw operator. Tr. 190, 191. The saw was operated approximately one time a week.Tr. 191. Hebel believed that because of the vibrations to which the cable was subject, “It was just a matter of time before [the insulation on the inner conductors would wear away and] somebody would receive a shock.” Id. Hebel testified that as mining continued it was “more reasonably likely than not” that an accident would occur. “[S]ooner or later,” he testified, the cable would short. Tr. 192.

            Herbel stated that the cable’s condition was “easily seen.” Tr. 190. Yet the condition was not reported, nor was the condition corrected. Hebel knew it was not reported because he looked at the company’s work place examination records. Tr. 200.

THE VIOLATION

            Section 56.12004 requires in pertinent part that: “Electrical conductors exposed to mechanical damage . . . be protected.” Palmer does not dispute that the violation existed as charged (Tr. 204) and the testimony fully supports Hebel’s allegation that on July 12, 2010, the conductors carrying power to the band saw located in the wash plant’s parts trailer were exposed to mechanical damage because the cable had pulled out of the band saw motor’s metal housing. Tr. 188; Gov’t Exh. 13. As a result, the conductors, which carried 110 volts of electricity, were exposed to the sharp edges of the housing’s opening. Tr. 188. When considering the existence of the alleged violation, the question of whether the conductors were exposed for a half inch as Hebel believed (Gov’t Exh. 12), or one quarter inch as Kombol testified (Tr. 204), is immaterial. Under either situation the interior electrical conductors of the cable were exposed to the edges of the housing and were subject to being rubbed against the edges as the saw operated. Hebel’s testimony in this regard was not disputed. Tr. 190. Nor was his testimony that such exposure could cause an electrical short circuit. Tr. 191. Because there was nothing to protect the conductors except the insulation that wrapped around them – insulation, the Court notes, that was much less durable than the outer insulation of the cable – the Court finds that the violation existed as charged. 

S&S AND GRAVITY

            Hebel found that the violation was S&S in that it could fatally injure one miner. Gov’t Exh. 12. The record supports his finding. Gov’t Exh. 12. As Hebel observed, the conductors carried 110 volts of electricity (Tr. 188), and it is common knowledge that exposure to 110 volts of electricity can cause ventricular fibrillation leading to serious injury or death. All that had to happen was for the insulation on an inner conductor to be worn away by the vibrating saw and for the bare metal of the conductors to contact the saw motor’s housing. The housing would be energized and when the band saw operator touched the housing, he would be serious injured or killed. Tr. 191. Hebel put it well when he testified that is was “just a matter of time” before such an accident occurred and that Court agrees with Hebel that as mining continued a serious or fatal injury was reasonably likely. Id. Further, given the likely results of the expected accident, the Court finds that the violation was serious.

NEGLIGENCE

            The Court also agrees with Hebel that the violation was due to Palmer’s moderate negligence. In Hebel’s opinion the fact that the cable pulled out of the housing and exposed the conductors was “easily seen.” Tr. 190. A photograph of the violation supports his assessment. Gov’t Exh. 13. Palmer does not take issue with the fact that the condition went unreported in its work place examination book. Tr. 200. The Court infers from Hebel’s testimony that the lack of a report indicates that the condition might have been of recent origin, mitigating the company’s negligence to some extent (Id.), and the Court concludes that the record supports Herbel’s moderate negligence finding.

ASSESSMENT OF CIVIL PENALTIES

            The Mine Act requires the Court to consider six criteria in assessing appropriate penalties for found violations. The criteria are: (1) the operator’s history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3) the negligence of the operator, (4) the effect of the penalty on the operator’s ability to continue in business, (5) the gravity of the violation, and (6) the good faith of the operator in attempting to achieve rapid compliance after notification of the violation. 30 C.F.R. §820(I).

            As noted at the start of the decision, the Secretary introduced into evidence computer print-outs showing that the mine’s applicable history of previous violations is small. Tr. 10-11; Gov’t Exh. 17. The parties also agreed that Palmer is a small operator. Tr. 223. The company offered no evidence to establish that any penalties assessed will affect its ability to continue in business, and the Court concludes that they will not. Finally, the parties concurred that Palmer demonstrated good faith in abating the subject violations. Tr. 8.

             CITATION NO.       DATE            30 C.F.R. §     PROPOSED PENALTY

            6396248                      10/4/06           56.9300(a)      $2,000

            The Court has found that the violation existed, that it was very serious and that it was due to Palmer’s moderate negligence. Given these findings and the other civil penalty criteria, the Court assesses a civil penalty of $1,000.

            CITATION NO.       DATE            30 C.F.R. §     PROPOSED PENALTY

            6396249                     10/4/06           56.9300(a)      $2,800

            The Court has found that the Secretary failed to prove a violation. Therefore, a penalty can not be assessed.

            CITATION NO.       DATE            30 C.F.R. §     PROPOSED PENALTY

            8556174                     7/12/10           56.14100(b)    $117

            The Court has found that the violation existed, that it was serious and that it was due to Palmer’s moderate negligence. Given these findings and the other civil penalty criteria, the Court assesses a civil penalty of $250.

            CITATION NO.       DATE            30 C.F.R. §     PROPOSED PENALTY

            8556175                     7/12/10           56.12004         $263

            The Court has found that the violation existed, that it was serious and that it was due to Palmer’s moderate negligence. Given these findings and the other civil penalty criteria, the Court assesses a civil penalty of $250.

ORDER

            For the reasons set forth above Citation No. 6396248 IS MODIFIED from a citation issued pursuant to section 104(d)(1) of the Act, 30 U.S.C. §814(d)(1), to a citation issued pursuant to section 104(a) of the Act, 30 U.S.C. § 814(a), and the inspector’s negligence finding IS CHANGED from “High” to “Moderate.” Citation No. 6396249 IS VACATED. The inspector’s negligence finding for Citation No. 8556174 IS CHANGED from “low” to “moderate and the citation IS AFFIRMED. Citation No 8556175 IS AFFIRMED. Further, if the Secretary has not already vacated Citation No. 6480349, she IS ORDERED to do so within 40 days of the date of this decision. Within the same 40 days Palmer IS ORDERED to pay a civil penalty of $1,500 for the violations found above. Upon the vacation of Citation No. 6480349 and payment of the civil penalty, these proceedings ARE DISMISSED.

                                                            /s/ David F. Barbour

                                                            David F. Barbour

                                                            Administrative Law Judge

Distribution: (Certified Mail)

Amanda Slater, Esq., Amanda Slater, Esq., Department of Labor, Office of the Solicitor, 1999, Broadway, Suite 800, Denver, CO 80202-5708 

William Kombol, Manager, Palmer Coking Coal Company, LLP, P.O. Box 10, 31407 Highway 169, Black Diamond, WA 98010

/sa