FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5267/FAX 303-844-5268

March 25, 2013

DECISION

Appearances:  Letha Miller, Office of the Solicitor, U.S. Department of Labor, Denver, Colorado for Petitioner;

Scott Wircenske, Safety Director, Martin Marietta Materials, Lenexa, Kansas, for the Respondent.

Before:            Judge Simonton

I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Hunt Martin Materials, LLC, at the Sunflower Quarry mine (the “mine”) hereinafter referred to as Respondent, pursuant to section 104(d) (1) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq. (“Act” or “Mine Act”). On December 7, 2011, Respondent requested that the citation be vacated, the absence of which necessitated a hearing pursuant to 29 C.F.R. § 2700.45(c). A hearing was conducted on November 14, 2012, in Topeka, Kansas. The record closed after the conclusion of oral closing statements from both parties.

II. ISSUES FOR ADJUDICATION

Did Respondent violate 30 CFR Section 56.15005, which requires use of fall protection equipment when miners, in this instance, engaged in blasting activities on a highwall? Were the negligence, gravity and penalty determinations appropriately assessed in the citation that was issued? Respondent asserts no fall protection was required due to the distance the miners were working from the edge of the highwall thus there was no violation and even if fall protection was required the violation should not have been assessed as significant and substantial and an unwarrantable failure.

III. FINDINGS OF FACT

A.        Stipulations

Pursuant to the Secretary’s November 1, 2012, Prehearing Report the parties jointly stipulated to the following facts:

Hunt Martin Materials, LLC, is an “operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 803(d). At all times relevant to these proceedings the Respondent was engaged in limestone mining operations at the Sunflower Quarry (Mine ID number 14-01556) in Desoto, Kansas. The Respondent’s operations affect interstate commerce. As such, Respondent is subject to the jurisdiction of the Mine Act, and the presiding Administrative Law Judge has the authority to hear and issue a decision regarding this case. The parties stipulated to the authenticity of their respective exhibits but not to the relevance or truth of the matters asserted therein. The individual whose signature appears in Block 22 of the citation at issue, Bryce Hopp, is an authorized representative of the U.S. Secretary of Labor, assigned to MSHA’s Topeka, Kansas Field Office at the time of the inspection at issue. He was acting in an official capacity when the citation at issue was issued. The citation was properly served upon Respondent as required by the Mine Act. The citation at issue may be admitted into evidence for the purpose of establishing its issuance, but not for the truthfulness or relevancy of any statements asserted therein. The proposed penalties will not affect Respondent’s ability to remain in business. The certified copy of the MSHA Assessed Violations History reflects the history of the citation issuance at the mine for fifteen months prior to the date of the citation and may be admitted into evidence without objection by Respondent. The Respondent demonstrated good faith in abating the violation.

B.        Factual Background and Testimony

This case involves a single citation of an unwarrantable failure to wear fall protection issued by MSHA inspector Bryce Hopp on July 14, 2010. At the time the citation was issued, Hopp was assigned to the Topeka, Kansas MSHA office and had worked for MSHA for approximately two and one half years. He grew up in a family that owned a limestone quarry business, completed high school and worked for twelve years as a blaster before becoming an MSHA inspector. Tr. 28-30.

On July 14, 2010, Hopp, along with his supervisor Joseph Steichen, conducted an inspection of the Sunflower Quarry. Steichen had worked for MSHA since 1997, and was a field office supervisor in the Topeka, Kansas office at the time of the inspection at issue. Tr. 163. Prior to MSHA, Steichen had worked for a mining corporation in South Dakota for 27 years. Tr. 165. Steichen accompanied Hopp because he was performing a routine review of Hopp’s inspection as part of a performance review process. Tr. 35, 165.

Upon arriving at the blasting site located on top of an approximately 26-28 foot highwall, Hopp observed that some of the twelve bore holes drilled for blasting purposes were within two feet of the edge of the highwall. Tr. 38-39; Gov’t Exhibits (hereinafter GE) 1 & 2. He also noticed that the front row of holes closest to the edge of the highwall had been loaded with explosive materials that had not yet been wired together. Tr. 38.

Hopp took the following general field notes contemporaneously during the inspection of the blasting site: Fall protection not being used while loading shot. GE 3. He described the conditions in greater detail on a Citation/Order Documentation Form (MSHA Form 4000-490) as follows:

28 foot highwall 12 holes along edge. Multiple shots per week, retractable lanyards + body harness available for use. Buck Crumley stated he knew of other quarry who had been cited for this same violation, also stated a discussion was had with John Kennison – Blaster Leadman if they should be using fall protection around ledge. Mr. Crumley had 2 retractable lanyards on site. Some of the 12 holes along edge were within 2 feet of dropoff.

GE 2. Supervisor Steichen testified that he initialed the citation at issue, as well as Hopp’s inspection and close out notes. Tr. 166. He felt that Hopp’s inspection and decision to issue the citation was congruent with MSHA policy and procedures, and that he would not have written the citation any differently. Id. Steichen also took general field notes of his own while at the blast site, which state:

1000 hours. 2 Blasters loading holes on a 28’ highwall – 1^st row of holes are between about 2’-3’ from highwall. W/o being tied out to anything no safety harness.

GE 4. He also testified that both he and Inspector Hopp discussed the need for fall protection during the inspection at the blasting site on the highwall. Tr. 170. He recalled that both Foreman Buck Crumley and Blaster-in-Charge John Kennison stated they were aware of another company that had been cited the previous week for a similar violation. Tr. 168-69. Hopp’s testimony, Steichen’s testimony as well as notes on the Citation/Order Documentation Form all confirm that Hopp discussed with Kennison and Crumley the need for fall protection during the inspection of the blasting site. Tr. 48, 85-86, 92, 168-170; GE 2. Hopp further noted the presence of potential tripping hazards around the blast holes in the form of drill filings and blasting paraphernalia. Tr. 52.

Respondent denies that any of the blast holes were as close as two to three feet from the edge of the highwall, and rather maintains that all of the holes were at least seven feet from the edge. See Respondent’s Letter Contesting Citation (December 7, 2011); Tr. 205. Both Blaster-in-Charge Kennison and Foreman Crumley were present during the inspection of the blasting area. Kennison testified that the first row of holes were seven feet back from the edge of the highwall, and that he always loads the holes with shot from behind the first row, which meant that he was about nine feet from the edge of the highwall when loading the holes. Tr. 204-206. Pictures of the condition were not taken due to MSHA’s policy not to do so when explosives are present. Tr. 74-76; GE 8. No measurements were taken because according to both Hopp and Steichen, there was no dispute presented at the time of inspection regarding the distance of the front row of blast holes to the highwall edge. Tr. 80-81. The citation was read out-loud during the inspection close-out and the only question asked by Crumley concerned the standard being cited, and not the distance from the highwall that was recorded. Tr. 71, 154. Respondent presented evidence that there was no record of the verbal discussion and issuance of the citation in Hopp’s field notes. Tr. 87; GE 4. However, Hopp's notes on the Citation/Order Documentation Form did detail the violation itself, and Hopp testified that he had verbally issued a citation. Tr. 86-87; GE 2.

After observing the blast site Steichen asked Foreman Crumley if the mine had fall protection equipment available. Tr. 169-170. Crumley immediately obtained the equipment, which was donned by Kennison, at which point blasting work resumed. Tr. 230. Hopp terminated the citation based on Kennison donning fall protection equipment, as confirmed by the notes on the citation. GE 1. Kennison and Crumley disputed the claim that any discussion was had about a violation at the time of inspection, and testified that the mine’s understanding was that the fall protection was merely requested by MSHA to ensure both its availability and that the blasters were knowledgeable as to its proper use. Tr. 229-30. However, Hopp testified that he would not have written about termination of the violation without having spoken to the mine representatives about it, as it is standard practice to have those discussions before terminating the citation. Tr. 156. The citation was terminated quickly, as “further training on the use of retractable lanyard and body harness was given and put in use.” Tr. 138. Once instructed to do so, the mine operator immediately located and hooked up fall protection before continuing with operations. Tr. 230.

Hopp testified that the conditions on the highwall were such that he felt fall protection was required to prevent the likelihood of serious injury. In particular, he stated that the top of the highwall was likely to be windy, and that there were several wires that would be tripping hazards. Tr. 54, 68. Hopp also stated that he saw “clutter” or “rubble” on the top of the highwall that could have constituted a tripping hazard, such as drill tailings, packaging, and cuttings. Further, the holes themselves presented a tripping hazard. Tr. 68.

Inspector Hopp testified that he had observed the blast and felt that it was a fairly normal blast, without any excessive flyrock. Tr. 127-29. Respondent used this fact along with information from a flyrock chart by the Bureau of Mines to assert that, had the holes truly been as close to the edge of the highwall as the inspector suggested, the flyrock in this case would have been in excess of 1,000 feet. Tr. 129-30. Respondent then presented a letter by a consultant, Phil Porter of Buckley Power, which confirmed this conclusion. Tr. 133-35. However, Hopp countered this conclusion by stating that, according to his understanding of flyrock, there were a number of variables in play, other than the distance of specific holes from the edge of the highwall, that were not accounted for by Mr. Porter. Tr. 135.

The Secretary called Tom Lobb, a senior physical scientist at MSHA, to rebut Respondent’s assertions regarding flyrock. Tr. 256. Lobb's qualifications in the field of mining engineering and explosives in particular are extensive, and he is certified to train blasters. Tr. 257. In response to Respondent’s theory of the case that a "normal" blast indicated there was no violation, he testified that it is impossible to determine how far flyrock will travel in blasting. He noted the fact that there are several other variables other than the distance of boreholes from the highwall face that come into play, including faults in strata, crooked blast holes, voids in the material, and varying hardness of different layers of rock. Tr. 258. Lobb examined the blast report, and noted that in most mines, the dimensions indicated on the blast report serve as more of a "blueprint," and that surface conditions at the time of the actual blast often result in actual burdens that vary significantly from the "design burden." Tr. 261. Upon examination of the flyrock charts submitted into evidence by Respondent, Lobb testified that the chart was an outdated document, produced by the Bureau of Mines years ago, that has no credence with modern explosives organizations. Tr. 269. He also pointed out several inconsistencies in the blast report submitted into evidence, including the lack of self-auto calibration on the seismograph. Tr. 269-70.

Hopp marked this citation as significant and substantial, and stated he felt it was reasonably likely that the hazard would cause serious injury. Tr. at 55, GE1. He focused on the small distance between the first row of holes and the highwall, and on the fact that a fall from 28 feet up would likely result in a fatality. He also noted there were tripping hazards around the blasting holes such as wires, drill filings and blasting paraphernalia. Tr. 52. With regard to his assessment that a fatality would likely result from a fall off the highwall he based this mostly on past MSHA fatal grams, several of which detail situations in which falls from even smaller heights have resulted in fatalities. Tr. at 55; GEs 9-21. The number of persons affected was noted as two (Blaster-in-Charge Kennison and a helper) and the negligence level was cited as high. Tr. 61, 49; GE 1. While unsure about the length of time the miners would have been exposed to the hazard he estimated it could have taken up to 30 minutes for them to load the holes. Id. He could not estimate how long it would have taken for the holes to be drilled which was probably done the day before because shot was being loaded in the morning. Id. He designated a high level of negligence because a prior discussion had been held regarding whether fall protection was needed indicating to Hopp that Foreman Crumley was aware that there might be a need for it and had discussed it with Blaster-in-Charge Kennison. Tr. 62. Hopp further testified that the hazardous condition was open and obvious. Id. Inspector Hopp also marked this violation as an unwarrantable failure to comply because the hazard was reasonably likely to be fatal and that management or an agent of the company was aware that the condition existed. Id. There was also publicly available information on MSHA’s website concerning the dangers of conducting mining activities without fall protection, as well as information on the appropriate way to set up such protection. Tr. 59. In Hopp’s opinion there was an extreme hazard because had they witnessed the shot being loaded that close to the edge of the highwall without fall protection in use they would have issued an imminent danger order on the spot. Tr. 63.

IV. APPLICABLE LAW AND ANALYSIS OF EVIDENCE

A.  30 C.F.R. Section 56.15005 Fall Protection Standard

This citation was written for a violation of 30 C.F.R. § 56.15005, which states that “[s]afety belts and lines shall be worn when persons work where there is a danger of falling.” Specifically, MSHA policy is to generally follow the guidelines of the Occupational Health and Safety Administration (OSHA) fall protection standard, which states that fall protection in the form of guardrails, safety net systems, or personal fall arrest systems should be used when an employee is walking or working on an edge which is six feet or more above a lower level. U.S. Department of Labor Program Policy Letter P12-IV-01, June 21, 2012, Respondent’s Exhibit L (hereinafter RE). FMSHRC has specifically found that a danger of falling exists when “an informed reasonably prudent person would recognize a danger of falling warranting the wearing of safety belts and lines.” Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983).

The safety belt and lines standard is one of 13 priority standards listed by MSHA in its “Rules to Live By” initiative implemented to improve the prevention of fatalities in mining. GE 5; Tr. 64. Falling from a highwall was the single most common safety violation found in mining deaths between 1990 and 1998 contributing to 37 fatalities. GE 6, p. 3; Tr. 65-66. MSHA has determined that the fall hazard zone by which fall protection should be donned is six feet or less from the edge of a highwall with a stable crest and six feet or less behind unstable ground or footing. Id. p. 8; Tr. 66-67.

Inspector Hopp explained that section 56.15005 is a performance standard. While there is not a specific distance cited in the standard itself where fall protection must be worn when working on a highwall each case is to be judge separately:

You look for many different things when you are out there, when you

are evaluating. The big thing in this was two feet away from an edge

that had a steep drop-off. You are also looking at the unevenness of a

ledge. Not all limestone edges are flat. Most of them have cracks.

They’re not like driving down a road. So you are going to have uneven

surface. You’re also going to have the filings from the drill. You’ll

have piles of that around. . . . . Also being there was shot loaded, you’re

going to have explosives products laid out. You might also have

stemming rock of a larger size up there to put in the holes as well.

Tr. 40-41. Here, Hopp testified there was “rubble” in the form of drill tailings, shot wire, tools, equipment, and explosives packaging all present on the highwall. Tr. 68. The highwall in this instance was 25 to 28 feet high. Tr. 39, 169. It is undisputed that workers were not wearing any form of fall protection while loading the boreholes with explosives. The main point of contention at hearing was the distance of the first line of boreholes, and therefore, the workers, from the edge of the highwall. As noted above, Hopp and Steichen observed that some of the first line of boreholes were two to three feet from the edge, while Respondent’s Blaster-in-Charge Kennison contends that they were seven feet from the edge. Tr. 38-39, 167, 204-206.

              At hearing, Respondent attacked the sufficiency of the evidence that the Secretary presented to support the citation. In particular, Respondent took issue with the lack of notes that were taken while the inspectors were actually on the highwall, particularly with respect to the sparse record as to the actual communications that occurred between mine management and Inspector Hopp. Tr. 25-26, 85-90. They also took issue with the fact that no pictures or measurements were taken. Id. at 25. While more notes and certainly measurements in lieu of pictures (given the acknowledged safety concerns with taking photos) taken in the midst of the inspection would have been helpful and in fact maybe dispositive of the parties contentions, I find the inspector’s statements regarding the pace at which they were conducting the inspection, as well as their thorough notes describing the nature of the mine, to be credible and adequate given the circumstances. Specifically, Inspector Hopp testified that, “if there’s no disagreement, to speed up the inspection, you move along.” Tr. 98. He established that one of the reasons inspections must move quickly is that the presence of inspectors could serve as a “heads-up” to the rest of the mine, which might allow them the opportunity to hide dangerous violations. Tr. 144. His cumulative notes along with those of his supervisor Steichen contained enough information to prove a violation, and I find his reasons for not taking more notes convincing. GEs 2, 3 & 4. Likewise, I credit the testimony of Hopp and Steichen regarding discussions they had with Kennison and Crumley during the inspection. Tr. 48-50, 170. While both Kennison and Crumley deny that Hopp and Steichen pointed out the distance of the boreholes from the highwall crest while they were at the blasting site I find Hopp and Steichen’s testimony to be more credible because it is supported by Hopp’s notes on the Citation/Order Documentation form and Steichen’s field notes. Tr. 208-209, 231-232; GEs 2 & 4. Furthermore, Kennison admitted he didn’t know what Hopp and Steichen observed because he was on a time schedule, he was busy loading shot and he did not recall some of the things that were discussed. Tr. 207-208. Accordingly, I conclude it was not necessary to take measurements because neither the Blaster-in-Charge Kennison nor Foreman Crumley disagreed with Hopp and Steichen regarding the distance between some of the bore holes and the highwall crest at the time of the inspection.

            Specifically, with respect to the parties’ factual dispute regarding the actual distance between the edge of the highwall and the first set of boreholes, I again find Inspector Hopp’s and Supervisor Steichen’s recollection of the events to be more credible, given that their contemporaneous general field notes and Hopp’s notes on the citation/order documentation form confirm their testimony. Tr. 208-209, 231-232; GEs 2, 3 & 4. In addition, I credit Hopp’s testimony that “clutter” was also present on the highwall from the shot loading activities. Finally, although no one had any specific recollection of the ground conditions it stands to reason that the surface of the highwall would not have been perfectly smooth and thus some variance in this regard is to be expected. Thus, allowing for some margin of safety (given the risk associated with falling off a 28 foot highwall) even exactly seven feet from the edge of the highwall falls into an area in which mine management should have concluded that fall protection was needed. As evident from the testimony and the MSHA “Fall Prevention on Highwalls” power-point presentation admitted into evidence, the six feet guideline applies to stable crests and perfect conditions, which are rarely seen in real life. Respondent’s management had to have known that at the very least workers were coming up close to that six-foot threshold. Respondents’ after-the-fact assertion that workers were no closer than seven feet from the highwall edge just outside the fall hazard zone of a stable crest appears contrived and unworthy of belief. Even if Inspector Hopp’s and Supervisor Steichen’s two to three foot estimation of the distance from the edge of the highwall to the first set of bore holes is doubled to four to six feet on a stable crest or tripled to six to nine feet allowing for an unstable crest, fall protection would have been necessary. Simply put, given the conditions Respondent should have clearly recognized the hazard and required fall protection. Accordingly, I find the testimony of Inspector Hopp and Supervisor Steichen to be credible and will uphold the citation.

Additionally, Respondent argued through the use of Porter’s interpretation of flyrock charts that any scenario with boreholes two to three feet from the edge of the highwall could not have produced a blast as “normal” as the one that occurred on the day of the inspection. I find that the vague sources Porter used, particularly when coupled with the fact that Porter was not available to testify, significantly reduce the weight Porter’s conclusions can be given. The Secretary of Labor was convincing in her use of the expert testimony of Thomas Lobb to rebut Respondent’s arguments. Lobb's examination of the blast report and flyrock charts submitted into evidence indicated that there are several variables and factors that play into how far flyrock travels after a blast, and that the chart used by Respondent could not support their conclusion that the holes must have been farther than six feet from the edge of the highwall. Tellingly, Lobb's testimony was not at all questioned, challenged or discredited by Respondent. Tr. 274. I find his testimony and evaluation of the evidence to be effective in rebutting Respondent's arguments.

            In sum, I find the testimony of Inspector Hopp and Supervisor Steichen supported by their notes as well as the detailed description of the blasting process given by Lobb to be credible and that Respondent’s employees failed to wear fall protection in an area where boreholes were closer than six feet from the edge of a highwall, in violation of 30 C.F.R. § 56.15005.

B.  Significant and Substantial Designation

Inspector Hopp issued this citation as a “significant and substantial” (S&S) violation, which 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 S&S “if based upon the particular facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In determining whether a violation is S&S, the Commission has identified four elements that the Secretary of Labor must prove: 

[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 affirm the citation as written and hold that there was a violation of mandatory safety standard 30 C.F.R. § 56.15005, as fall protection was not worn in an instance where it should have been. This violation does contribute to a discrete safety hazard, that is, the danger of a miner working without fall protection falling over the edge of the highwall.

The third Mathies criterion, in which the Secretary must establish that there is a reasonable likelihood that the hazard will result in an injury, has been clarified further by the Commission:

[T]he 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).

 U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). In this case, the hazard contributed to, that is, the potential trip and fall scenario the inspectors were concerned about, would almost certainly result in a serious injury or even death. I have found that workers were approximately two to three feet (seven to nine feet if Respondent’s witnesses are to be believed) from the edge of a 28 foot highwall littered with “rubble” from blasting paraphernalia, tools and equipment and piles of drill tailings. Thirteen fatal grams submitted into evidence by the Secretary indicate that even falls from significantly shorter distances can result in death. GEs 9-21. The fatal grams, and the designation of this particular standard as “the single most common safety violation found in mining deaths” all prove a reasonable likelihood that this injury would be very serious at best, and most likely fatal.

It should be noted that the significant and substantial 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 at 1574. In this instance, the violative condition would most likely have existed beginning with the drilling of boreholes estimated to have occurred the day prior to the inspection through the blasting process, since Respondent failed to require the miners to wear fall protection. Tr 61-62. However, the only evidence presented regarding the length of time the violative condition existed was Inspector’s Hopp’s estimate that it could have taken up to 30 minutes on the day of inspection to load the front row of boreholes with shot. Tr 61-62. With regard to drilling the boreholes he stated he really didn’t know who or when they would have been drilled and did not provide an estimate of how long that process would have taken. Id. While somewhat unclear I find it reasonable to conclude that at a minimum the miners would have been exposed to the hazard for at least a total of 30 minutes. Accordingly, in light of all the evidence and the four Mathies factors, I uphold he significant and substantial designation on this citation.

C.  Negligence

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.” 30 C.F.R. § 100.3(d). “A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety and health of miners and to take steps necessary to correct or prevent hazardous conditions or practices.” Id. Low negligence exists when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” Id. High negligence exists when [t]he operator knew or should have known of the violation, condition or practice and there are no mitigating circumstances. Id. See also Brody Mining, LLC, 2011 WL 2745785 (2011) (ALJ). Finally, the operator is guilty of reckless disregard where it “displayed conduct which exhibits the absence of the slightest degree of care.” Id. MSHA considers mitigating circumstances which may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices. Id.

Here, Inspector Hopp determined the negligence level to be high because there had been discussion ahead of time between Foreman Crumley and Blaster-in-Charge Kennison that there might be a need for fall protection. Tr. 50, 62; GE 2. It should be noted that neither Crumley nor Kennison acknowledge in their testimony that they had discussed the necessity of fall protection immediately prior to the inspection. However, I credit the notes taken by Inspector Hopp in his citation/order documentation taken on the day of the inspection to confirm that said discussion did occur along with his testimony that there had been a meeting the morning of the inspection where use of fall protection was discussed. GE 3; Tr. 50. As a foreman Crumley is a member of management, and Blaster-in-Charge Kennison testified he is in charge and thus, a member of management in the absence of Crumley. Tr. 219. Accordingly, there is no question that management through both Crumley and Kennison was aware or should have been aware that fall protection was needed. This is compounded by the fact that Foreman Crumley was aware at the time of inspection that another operator had been recently cited in the area for the same issue – failure to wear fall protection. GE 2; Tr. 168- 70. Finally, no evidence of mitigating circumstances was presented at hearing to merit reducing the level of negligence. Accordingly, I find that Inspector Hopp appropriately designated the violation at issue as an act of high negligence.

D.  Unwarrantable Failure

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). Because supervisors are held to a high standard of care, another important factor supporting an unwarrantable failure determination is the involvement of a supervisor in the violation. REB Enters, Inc., 20 FMSHRC 203, 225 (Mar. 1998). Judges must consider each of these factors in light of the evidence in order to reach a determination as to whether a citation is an unwarrantable failure.

Inspector Hopp testified he was unsure of the length of time the miners were exposed to the hazard on the day of inspection but estimated that it could have been a half an hour for loading shot. Tr. 61. The extensiveness factor involves consideration of the scope or magnitude of a violation, not an additional consideration of dangerousness or obviousness. Eastern Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010). I have already found that at least some of the boreholes were as close as two to three feet from the crest of the highwall. As to scope or magnitude I thus find that up to two miners were at a high risk of falling, albeit for a short period of time up to approximately 30 minutes. Between April 14, 2009 and July 13, 2010 Respondent had no other violations of 30 C.F.R. § 56.15005 and in fact had only been cited four times for non-S&S violations for a total amount of $417.00 in assessed penalties thus there is no indicia Respondent’s violation history put them on prior notice that greater efforts to comply with the fall protection standard were necessary. GE 22. Both Inspector Hopp and MSHA Supervisor Steichen noted in their testimony that Respondent immediately abated the violative condition by donning fall protection in their presence thus terminating the citation. Tr. 70-71, 193- 94.

However, I find that the violation was open, obvious and as noted posed a high degree of danger even for a relatively short time. Hopp testified that the level of danger was so high that, had the inspectors arrived while shot was being loaded into the front holes, they would have issued an imminent danger order. Tr. 63. I also noted above that even in the event the miners were two to three times the distance farther back from the crest of the highwall than what both Hopp and Steichen credibly attested to, fall protection should have been worn while loading the first line of boreholes. Clearly, an informed reasonably prudent person would recognize a danger of falling warranting the wearing of safety belts and lines. Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983). Thirteen fatal grams convincingly demonstrate that a fall from a 28 foot highwall would have most likely resulted in death. A combination of safety information via wide circulation of fatal grams, MSHA’s “Rules to Live By” and MSHA’s fall prevention PowerPoint presentation were certainly available to the Respondent. As Hopp testified, fatal grams are available to the public, and fatalities are generally discussed with mine operators during MSHA inspections. This evidence shows that management officials should have been on notice that fall protection was needed to prevent fatalities while working under the cited conditions. In addition, Hopp and Steichen testified that they spoke with mine management about the need for fall protection, and Foreman Crumley appeared to be aware or at least recognized the need for it. Hopp also testified that Crumley knew of another quarry in which a similar citation had recently been issued, which again, indicates awareness of a potential hazard and the need for fall protection more generally. Tr. 121. There is no question that Respondent, through Crumley and Kennison (as the foreman in charge when Crumley was absent), was aware fall protection was necessary under these circumstances. Accordingly, I find their negligence in not using fall protection on the day of the citation to be an unwarrantable failure.

IV. PENALTY

Commission Administrative Law Judges (ALJs) have the authority to assess penalties under the Mine Act de novo, as stated in Section 110(i) of the Mine Act, which 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 requires Commission ALJs to consider the following six penalty criteria when assessing penalties:

[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).

Notably, the penalty for the citation at issue was specially assessed because of the fact that the fall protection standard was one of MSHA’s “Rules to Live By,” as noted by Inspector Hopp during his testimony. Tr. 73. MSHA’s “Rules to Live By” identify 24 standards that are frequently cited in fatal accident investigations, and provide reference materials for operators to learn about these standards and how to stop common yet preventable fatalities. GE 5. Since operators have been put on notice and given resources about ways to prevent these specific types of accidents, higher penalties are generally assessed for citations in this category. Tr. 73.

As noted in the previous discussion regarding unwarrantable failure Respondent has been cited four times since April 14, 2009, for non-S&S violations none of which involve the fall protection standard cited in this case. GE 22. With regard to Respondent’s size I find that the proposed penalty is appropriate given that Respondent has up to twelve miners employed at the subject Sunflower Quarry and operates several other mines in the area. Tr. 30, 32. Also noted above I have found Respondent to be highly negligent with regard to the subject citation. I accept the parties’ stipulation that the proposed penalty will not affect Respondent’s ability to remain in business. Finally, noted above I have found the gravity of the negligence to be reasonably likely and fatal, significant and substantial and an unwarrantable failure. I recognize and accept the parties’ stipulation that Respondent demonstrated good faith in abating the violation.

Considering all of the circumstances I find that the proposed penalty of $4,900.00 meets the deterrent purposes of the Mine Act and is therefore appropriate The total penalty in this instance for violating the fall protection standard, 30 C.F.R. § 56.15005 shall be $4,900.00.

V. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. 820(i), I assess the penalty listed above for a total penalty of $4,900.00 for the citation decided after hearing. Hunt Martin Materials, Inc., is hereby ORDERED TO PAY The Secretary of Labor the sum of $4,900.00 within 30 days from the date of this decision.

                                                                        /s/ David P. Simonton

                                                                        David P. Simonton

                                                                        Administrative Law Judge

Distribution:

Letha Miller, U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, CO 80202

Scott Wircenske, HR/Safety Manager, Martin Marietta Materials, 11900 West 87^th St. Parkway, Ste. 200, Lenexa, KS 66215