The Secretary maintains that the container was accessible to any of the yard employees, because there was a third key kept in the office that was available to anyone. Mendoza and Burton testified that the key to the container lock that had been kept in the office also fit a lock on a gate at another sales yard, and that the office key was frequently borrowed by persons needing access to that yard. They stated that as of October 2009, the office key had been missing, although they could not specify when it went missing. Tr. 112-13, 132-33, 215-16. Handshoe testified that he remembered very well that Mendoza told him that there was a third key in the office and that anyone wanting to access the container could just go and get it. Tr. 88. However, he recorded in his field notes, and reiterated in the citation, that only the two managers had keys. Tr. 51-53; Ex. G-1, G-2. Handshoe testified that he was very much interested in how many keys there were, because access to the container was an important consideration in the S&S analysis. If he deemed it important, as he should have, then it is difficult to understand why he would have recorded, with seeming certainty, that only Mendoza and Burton had keys. I find that during the pertinent time there were only two keys available, and that they were held by Mendoza and Burton. Yard employees had no access to the container unless they obtained a key from Burton or Mendoza, and no one had done so during the pertinent time period.

            The only evidence that anyone other than Mendoza had entered the container after the pipes had been placed on the floor was Handshoe’s determination that there were “multiple” footprints of different sole configurations on the pipes, and his conclusion that they indicated that the container had been accessed frequently. Tr. 22, 54, 82-84. I find that evidence unpersuasive. The pipes are fairly depicted in photographs, and do not appear to bear multiple distinct footprints. While Handshoe attempted to point out “distinctive” footprints on one of the photographs, it is difficult, if not impossible, to identify any footprints with any degree of confidence. Tr. 82-84; Ex. G-3, R-4. As Respondent points out, marks on the pipes may have pre-existed their placement in the container, e.g., they may have been stepped on prior to being placed into Burton’s truck.

            A further difficulty with the “multiple access” argument is that there does not appear to have been any reason why anyone else would have entered the container. There were only three reasons that the storage container would have been accessed; 1) to obtain the community service event supplies; 2) to store or retrieve a sample of material; and 3) to store or retrieve records. There were no other community service events held in the pertinent time frame and, if one would have been held, presumably the poles would have been removed to facilitate erection of the tent and access to other supplies. The stone samples had been in the container for a “long time,” and entry of the container by lab personnel was unlikely. Tr. 135, 141. A scale clerk would place records in the container only three or four times per year. Tr. 114, 129. It is unlikely that a scale clerk would have accessed the container while the pipes were on the floor. Moreover, it is far from certain that anyone intent on placing a box of records in the storage container would have attempted to traverse the poles. The poles were placed on the floor because other items had been placed on the shelves where they had been stored. As shown in photographs of the condition, boxes of records had been placed on the floor of the container, and there appears to have been open floor space next to the boxes near the entrance to the container. Ex. G-3, R-4. It is entirely possible, if not likely, that a person tasked with placing a box of records in the container would have placed the box on the floor, alongside or even on the pipes, which could have been done without encountering the hazard.

            Considering the length of time that the hazard existed, and would have existed under continued normal mining operations, the fact that it was not highly dangerous to miners, and that no one except Mendoza encountered or would have encountered the hazard, I find that it was unlikely to have resulted in a lost work days or restricted duty injury and that the violation was not S&S.

            From a broader perspective, the poles were in a locked container that was accessed by only one person while the hazard existed. That person suffered no injury, having taken reasonable precautions when he chose to encounter the condition. While a reasonably serious injury was possible, no injury occurred or was likely to occur, and any injury might well have been very minor. Under the circumstances, it would be difficult to characterized the violation as one of the “more serious violations” arising under the Act.

Unwarrantable Failure - Negligence

            In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated the law applicable to determining whether a violation is the result of an unwarrantable failure:

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

Whether conduct is “aggravated” in the context of an unwarrantable failure analysis is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) . . . ; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because supervisors are held to a high standard of care, another important factor supporting an unwarrantable failure determination is the involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

            The Secretary argues that the violation was the result of Florida Rock’s unwarrantable failure because Burton, its manager and agent, created the violative condition, and neither he, nor Mendoza, also Florida Rock’s agent, took any affirmative steps to remedy the hazard. Florida Rock argues that a number of mitigating factors render its negligence no more than moderate, including that the poles were stacked in a locked container that was rarely accessed, that only Burton and Mendoza had keys, that the condition was not extensive or highly dangerous, and that the actions of Burton and Mendoza do not rise to the level of reckless disregard, indifference or serious lack of reasonable care.

            Operator’s knowledge - Abatement efforts

            Both Burton and Mendoza knew about the violative condition. Burton had created it 11 days earlier, and Mendoza discovered it the day before the inspection. Both were managers and agents of Florida Rock, which is charged with their knowledge. Neither had taken any affirmative steps to remedy the condition prior to issuance of the violation. However, I accept Burton’s explanation that his failure to act was due to a simple lapse in memory, rather than a conscious decision to subordinate safety concerns to production or other efforts. Mendoza gained knowledge of the condition late on October 13, the day before the inspection. He deferred initiating corrective action because Florida Rock’s work day had ended. His intention to correct the condition the following day was thwarted by the unexpected absence of two employees.

            Obviousness - Extensiveness - Notice of need for additional compliance efforts

            The violative condition was confined to the walkway inside the locked storage container. I disagree with the Secretary’s argument that the condition was extensive and obvious. It was not extensive in the sense that numerous persons were exposed to it, or that it covered a large area such that it should have been observed. It could not be observed unless the locked container door was opened. Only at that point could the condition be said to be obvious. In any event, I find neither factor is particularly relevant to the analysis in light of Burton’s and Mendoza’s admitted knowledge of the condition. Although the Secretary argues that, Burton and Mendoza should have been on notice that additional compliance efforts were necessary because of their training,

I find no evidence of such notice. The parties stipulated that Florida Rock had no history of violations during the pertinent time period. Ex. G-11. In fact, Florida Rock had no previous housekeeping violations. Tr. 127-28; Ex. R-16.

            Length of time violation existed.

            The violative condition would have existed from October 3 until October 14 or 15, when Mendoza would have taken steps to correct it. Unlike in other contexts, where a violation’s existence for more than one shift can be a significant aggravating factor, here the condition was confined to a locked container where miners did not normally work or travel. It was allowed to exist because Burton forgot to have the condition attended to. Its existence after 3:30 p.m. on October 13 was also attributable to Mendoza’s decision to defer remedial efforts to the next day, and then to further defer them when workers called in sick. On the facts of this case, considering that the condition was virtually inaccessible to persons engaged in routine work activities, I find that the length of time factor is only slightly aggravating.

            Danger to miners

            The violative condition did not pose a high degree of danger to miners primarily because of its inaccessibility, but also because of the nature of the condition. The container was locked, was typically accessed less than ten times per year, and was accessed only once during the time the violative condition existed. Mendoza exercised care, steadied himself by holding onto a shelf, and took two steps to retrieve an empty box. No other persons entered the container and none would have under continued normal mining conditions. The most likely reason for accessing the container, to place a box of records in it, may well not have resulted in a person encountering the hazard.

            Conclusion

            The most significant factors weighing in favor of a finding of unwarrantable failure are that Respondent’s agents created and knew of the violative condition, but had taken no affirmative steps to abate it.  That it was allowed to exist for 11 days is a slightly aggravating factor. Several factors: extensiveness, obviousness, and notice that greater compliance efforts were necessary, are essentially neutral. Weighing against a finding of unwarrantability, is the fact that the condition posed a very low degree of danger to miners primarily because it was in a virtually inaccessible location.

            On balance, the above factors do not strongly suggest a finding of unwarrantibility. Florida Rock argues that the actions of Burton and Mendoza cannot properly be characterized as aggravated conduct. I agree that the agents’ knowledge of the condition and inaction should not be considered a strongly aggravating factor on the facts of this case. As noted above, the first 10 days that the condition existed were attributable to Burton’s failure to recall the need to correct the condition. It was out of sight, in the locked storage container on a corner of the property, and only he and one other supervisor had a key to the lock. He did not subordinate abatement efforts to production, and it would be difficult to characterize his simple act of forgetfulness as aggravated conduct. Similarly, Mendoza’s decision to defer abatement efforts to the next day, and then to further defer them because of the absence of employees, would be difficult to characterize as aggravated conduct, considering the inaccessibility of the violative condition.

            Based upon the foregoing, and considering all the pertinent factors, on the facts of this case I find that the violation was not the result of Florida Rock’s unwarrantable failure to comply with the standard, and that its negligence was moderate. A different outcome would be called for if the condition had existed in a normal work area, where miners could be expected to encounter it in the exercise of their work assignments.

Order No. 6596610

            Order No. 6596610 was issued at 1:30 p.m., on October 14, 2009, pursuant to section 104(d)(1) of the Act. It alleges a violation of 30 C.F.R. § 56.14100(b), which requires that “Defects on any equipment . . . that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” The violation was described in the “Condition and Practice” section of the Order as follows:

Defects affecting safety were being reported on mobile equipment pre-shift examination, but management has failed to correct such hazards in a timely manner. Numerous defects on two separate pieces of equipment have been reported to management for several shifts. This condition exposed miners to serious injuries should an accident occur due to defects reported. Management reviews pre-shifts on a daily basis. One out of the two was tagged out of service to prevent usage until repairs can be made. Management has engaged in aggravated conduct by failing to repair defects on mobile equipment in a timely manner. This violation is an unwarrantable failure to comply with a mandatory standard.

Ex. G-4.

            Handshoe determined that it was reasonably likely that the violation would result in a permanently disabling injury, that the violation was S&S, that one person was affected, and that the operator’s negligence was high. The Order was issued pursuant to section 104(d)(1) of the Act, and alleged that the violation was the result of the operator’s unwarrantable failure to comply with the mandatory standard. A civil penalty, in the amount of $7,100.00, was assessed for this violation.

The Violation

            In preliminary discussions with management, Handshoe typically inquires about work place examinations and defects on mobile equipment. Burton informed him that some defects had been reported on mobile equipment, and Handshoe asked to see records relating to the reports. He examined records of pre-operational inspections of equipment, and noted that a broken step on a loader had been reported on several occasions. Tr. 31. The parties stipulated that the broken step had been reported on October 6, 7, 8, 9, and 13. Jt. Stip. 16. He also noted that several reports indicated that headlights on a small yard tractor were not working. Tr. 31; Ex. G-7. He inspected the loader and found that the step had not been repaired. The step was suspended below a small work platform and facilitated access to the platform, which was approximately three feet off the ground. Photographs of the condition, as cited and post-abatement, were introduced into evidence. Ex. G-8. Handshoe issued a citation for the condition. He also inspected the tractor and found that the headlights were not working. He allowed Mendoza several minutes to try and get them to work, but he was unsuccessful. A citation was not issued for the tractor because it had been tagged-out of service, albeit for a different reason.

            Handshoe concluded that the broken step and the malfunctioning headlights were defects affecting safety that had not been corrected in a timely manner to prevent the creation of a hazard to persons. Florida Rock contends that the defects did not affect safety and, in any event, were timely corrected.

            The small work platform on the loader was too high to simply step up onto. The broken, missing step dictated that alternate means would have to be found by anyone attempting to reach it. One possibility was presented by the proximity of the rear tire, the lugs on the tread of which might have been judged to present a sufficient foothold. Ex. G-8. A person attempting that route, or some other route, could slip and suffer an injury. Consequently, the defect affected safety, at least on occasions when access to the platform might be attempted. However, that finding does not dictate that it was a defect that required that the loader be taken out of service, i.e., that the defect be immediately corrected to prevent the creation of a hazard to persons.

            Florida Rock contends that the sole reason to access the work platform was to reach the loader’s air filter, a task that was performed only by service personnel who typically brought their own equipment, such as ladders and work platforms. Mendoza confirmed that he reviewed the pre-operational inspection reports and was aware that the step had been reported as broken. Tr. 218, 224. He did not believe that the defect affected safety, because no one in his operation, i.e., no employees at the yard, used the step, or would be expected to use the step. Tr. 219-22. He had operated the loader, and been trained on it. All pre-operational inspection tasks were performed from the ground, or from the operator’s cab, which was accessed by separate steps on either side of the loader. Tr. 219-22. The broken step and work platform could be used to access the air filter compartment, but that was a task performed by service personnel, not miners at the yard. Tr. 220-21. Service personnel were scheduled to work on the loader on October 26, at which time the broken step would have been repaired. Tr. 222; Ex. R-17.

            Mike Rice, who was being trained for the position of yard supervisor at the time of the inspection, was reviewing and signing off on the equipment pre-operational inspection reports, and was aware of the reports of the broken step on the loader. Tr. 148-49. He did not view it as a hazard or a safety issue because he believed that Florida Rock yard employees had no reason to use the step. He described the pre-operational inspection of the loader and explained that all access to engine and transmission compartments was from the ground. Tr. 150-56. A latch to the upper right of the work platform opened a door that provided access to the air filter, a task not performed by yard employees. The air filter was changed by Florida Rock’s service personnel who had ladders and platforms that were used to access various parts of the loader. Tr. 157. He believed that the step would most likely have been repaired on October 26 during the next scheduled servicing of the loader.

            Edil Villatoro operated the plant and various equipment in the yard. He had operated the loader on October 7, 8 and 9, and had noted the broken step on the pre-operational inspection reports. Tr. 185; Ex. R-12. He confirmed that Florida Rock’s policies required that if a safety hazard was discovered during a pre-operational inspection, the equipment could not be operated, and had to be tagged-out for repair. Tr. 183-84. He did not consider the broken step to be a safety hazard because he had never used it, and did not need to use it to perform his pre-operational inspection or for any other reason. Tr. 186-93. He also confirmed that had never accessed the air filter or vents higher on the body of the machine.

            Julio Perez, an equipment operator at the yard, testified that, except for accessing the operator’s cab of the loader, all pre-operational tasks were performed from the ground. He had never used the step in question and had never seen anyone use it, with the possible exception of a mechanic. Tr. 201-09.

            I accept the unrebutted testimony of Respondent’s witnesses, and find that the broken step leading to the work platform on the loader was not accessed by any of Florida Rock’s yard employees. Service personnel may have used the platform to gain access to and change the air filter during scheduled preventive maintenance. However, those same personnel would have repaired the step. The part was on hand, and the loader was scheduled for servicing on October 26, 2009. The broken step was not a defect affecting the safety of Florida Rock’s employees. To the extent that it was a defect affecting safety, it would have been corrected timely, such that it would not have presented a hazard to miners. I find that the standard was not violated with respect to the broken step on the loader.

            Florida Rock makes similar arguments as to the headlights on the yard tractor. It was a relatively small piece of equipment used for various light duty tasks, such as cleaning up spills of material and unloading deliveries of supplies trucked to the yard. It is depicted in photographs introduced by Respondent. Ex. R-13, R-14. The tractor was used only occasionally, approximately five times between September 23 and October 14, and the pre-operational inspection and daily report sheets indicate that it was typically operated less than three hours on days it was used. Tr. 234; Ex. R-15. It had been operated for only 16.2 hours from September 2 through October 8, 2009. Ex. R-15. Beginning in September, problems with the tractor’s headlights were being reported on some of the inspection sheets.

            Perez conducted the pre-operational inspection on September 23, and noted that the headlights were not working. Tr. 204-05; Ex. R-15. He operated it during daylight, did not believe that the headlight malfunction was a safety issue, and did not take the tractor out of service. Tr. 204-05. Villatoro operated the tractor on September 26. He did not note any problems with the headlights during the pre-operational inspection, and had no recollection of there being a problem with the headlights. Tr. 194-96; Ex. R-15. Another miner operated the tractor on September 30 and October 1, and noted that the headlights were not working. Ex. R-15. He did not take the tractor out of service, and apparently concluded that the defect did not affect safety, most likely because it was operated in daylight. Rice operated the tractor on October 8, and reported no problem with the headlights. Tr. 159-61; Ex. R-15.

            The inconsistent functionality of the headlights was attributable to a defective ground relay discovered following the inspection. The headlights on the tractor were controlled by two switches. One was an on/off switch and the other switched the lights between high and low beams. Tr. 176. Operators tended to throw the headlight switches at the same time, which resulted in the beam switch being on “high beam” when the headlight switch was in the “on” position. Tr. 228. With the switches in those positions, the headlights would not function, and Mendoza was unable to demonstrate to Handshoe that the headlights were functional. After the inspection, Mendoza discovered that the malfunction occurred only when the headlights were in “high beam” mode. He took a picture of the tractor following the inspection on October 14, which showed the headlights functioning. Tr. 233; Ex. R-14. No repairs had been made before the picture was taken. Tr. 244-45. Later, it was determined that a ground relay for the high beams was defective. Tr. 244. Rice also testified that the headlights were functional on October 14. Tr. 162.

            Apparently, some equipment operators knew how to operate the headlights, or the switch happened to be in the low-beam position when they were checked. Villatoro and Rice found no problems with the lights when they checked them on September 26 and October 8. However, Perez, and at least one other operator were not able to get the lights to work. Tr. 175; Ex. R-15. Mendoza also was unable to get the lights to function until after the inspection.

            The problem with the headlights would have been a defect affecting safety only if the tractor was operated during darkness or periods of significantly reduced visibility. Rice testified that there would have been no reason to operate the tractor under such conditions. Tr. 177. He and Mendoza pointed out that the tractor would not have been operated during inclement weather because it had no operator’s cab. Tr. 177, 230. Mendoza was confident that the tractor had not and would not be operated in the dark without functioning headlights. Tr. 230, 247-48. His belief was based upon a number of considerations, including, the fact that the tractor was not often used, and was used for short periods of time for tasks that typically needed to be performed later in the day or could be deferred. He was also confident that the operators had been properly trained, and would, as they had in the past, follow instructions not to operate equipment when to do so would present a hazard. Rice opined that there was no reason that the tractor would have been operated in the dark. Tr. 177. He also believed that equipment operators would function as they had been trained, and would tag the tractor out and not operate it in darkness if the headlights were not functioning. Tr. 159.

            While the vast majority of the yard’s working hours occurred during daylight, in months like October when the inspection was conducted it was dark for the first hour or so of the work day. Tr. 208. Villatoro and Perez testified that the tractor was occasionally operated while it was dark, although it was never operated in the dark while the headlights were not working. Tr. 195-96, 204-08. Rice conceded that the tractor was used for deliveries, that deliveries came at all times of the day though not generally in the early morning, and that the tractor was available for use at all times. Tr. 178-79.

            The inspection was conducted during daylight hours, and it does not appear that Handshoe was able to take into account the effect of illumination on the property. Because of the facility’s proximity to the port of Tampa, the Department of Homeland Security required that the area be illuminated at night, and there were lights mounted on poles around the perimeter of the facility. Tr. 165-66. Shadows of those light poles are visible in an overhead photograph of the facility. Ex. R-1. There is virtually no evidence in the record as to the intensity of those lights, how they were controlled, or to what extent they provided illumination in areas where the tractor was likely to be operated. Villatoro indicated that there was illumination in”some places” around the facility. Tr. 196. Because they were intended to provide lighting for security purposes, it is likely that the lights were of relatively high intensity and would have provided considerable illumination in areas near the perimeter of the facility.

            Considering the testimony of Villatorro and Perez, it is apparent that there were occasions when it would have been desirable to operate the tractor in darkness, or when visibility was reduced, e.g., at dawn or when fog was in the area. Because of the defective ground relay, the operator may not have been able to get the headlights to function. Depending upon where the tractor was to be operated, illumination provided by security lighting may not have been sufficient to avoid exposing the operator to a hazard. At least two of the tractor’s operators did not know how to configure the switches to make the headlights function. The condition had existed since September 23, and apparently would have continued to exist for some extended period of time because Florida Rock had not taken, and had not planned to take, any steps to correct the problem. While an equipment operator who was unable to get the tractor’s headlights to function may have been able to defer the task requiring use of the tractor, or may have tagged the tractor out of service, it is possible, particularly in borderline situations, that he would have elected to operate the tractor despite the fact that the headlights were not functioning. As the Secretary points out, the Commission has, in other contexts, instructed that the vagaries of human conduct must be taken into account in the construction of mandatory safety standards involving miners’ behavior. See Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984).

            I find that the malfunctioning headlights on the yard tractor constituted a defect affecting safety and that Florida Rock did not timely correct the defect to prevent it from becoming a hazard to miners. Accordingly, the standard was violated.

Significant and Substantial

                        The fact of the violation has been established. As the Secretary observes, because of the wording of the standard, the first and second Mathies factors are merged. Consequently, it is necessary to identify the discrete safety hazard contributed to by the violation and to determine whether it was reasonably likely to result in a reasonably serious injury.

            The Secretary identified the hazard as follows: “the tractor operator would lack headlights at a time when headlights were needed, with the attendant risk of the tractor hitting someone or being hit by something due to reduced visibility.” Sec’y. Rp. Br. at 8. I accept that definition of the hazard contributed to by the violation, with a slight alteration. The hazard contributed to was that a miner would operate the tractor without functioning headlights when headlights were needed, with the attendant risk of the tractor hitting someone or being hit by something due to reduced visibility. The tractor, which is depicted in several photographs, was relatively small, and had an unprotected operator’s compartment. Large pieces of mobile equipment operated at the facility, e.g., the loader and customer trucks, and a collision involving the tractor, even with a smaller vehicle such as a pick-up truck, could result in very serious injuries to the operator. Pedestrians also traveled about the facility, and malfunctioning headlights would impair the ability of the operator to see a pedestrian, as well as a pedestrian’s ability to see the tractor. A serious injury could be expected if the tractor struck a pedestrian. The primary issue in the S&S analysis is whether the hazard contributed to by the violation was reasonably likely to result in an injury causing event.  

            I find it highly unlikely that the tractor would have been operated in darkness or conditions of reduced visibility when headlights were needed but were not functional. For the reasons discussed above, the occasions when it would have been desirable to operate the tractor in darkness or reduced visibility were extremely rare. The tractor was not used in a production capacity. It was used only occasionally for short periods of time, primarily on tasks that were performed later in the day.

            On the rare occasion when it would have been desirable to operate the tractor in conditions of reduced visibility, if the operator could not get the headlights to function, he most likely would have deferred operation of the tractor, or tagged it out for repair. As Handshoe concluded, the equipment operators did a good job of conducting pre-operational inspections of equipment and noting any defects. They were trained to conduct such inspections and to tag equipment out of service if they discovered a defect affecting safety. The loader had been tagged out because of low tire air pressure the day before the inspection and, on the day of the inspection, the tractor had been tagged out for a defective muffler that was blowing exhaust in the operator’s face. Equipment operators had tagged equipment out in the past for safety defects. Tr. 231, 249.

            Considering the vagaries of human conduct, a decision to operate the tractor under such circumstances would not result from inadvertent action or momentary inattention. However, an error in judgment could have resulted in operation of the tractor when it should not have been operated. That possibility justified the finding of a violation. However, it is not sufficient to establish that an injury causing event was reasonably likely. In Thompson, consideration of the vagaries of human conduct justified a finding of a reasonable possibility of contact and injury sufficient to establish a violation of the guarding standard there at issue. However, the Secretary’s contention that the violation was S&S was rejected, and the Secretary did not seek review of that finding. 6 FMSHRC n.3 at 2095. While it is possible that an operator would have made such an error, it is far from likely that he would have done so. See Amax Coal Co., 18 FMSHRC 1355, 1358-59 (Aug. 1996) (to prove S&S nature of violation, Secretary must prove that it is reasonably likely that an injury producing event will occur, not that one could occur).

            I find that the hazard contributed to was unlikely to result in an injury causing event, and that the violation was not S&S.

Unwarrantable failure - negligence

            Handshoe believed that the failure to timely repair defects on mobile equipment was a major failing of management. As he described it, the equipment operators were doing a good job of reporting defects, but management was not following through and having the defects repaired. While Handshoe stated in his order that numerous safety defects had been reported, he conceded that there were only two, the broken loader step and the malfunctioning tractor headlights. Tr. 67. I have found that Respondent did not violate the standard with respect to the loader step. Consequently, that aspect of the order will not be considered in the unwarrantibility analysis.

            Operator’s knowledge - Abatement efforts

            Mendoza, Florida Rock’s agent, reviewed the pre-operational inspection forms and knew that the defect on the tractor had been reported on September 23 and 30 and October 1. Ex. R-15. While no problem with the headlights had been reported when the tractor was operated on September 26 and October 8, the recurrent reports of malfunctioning headlights put Florida Rock on notice of the defect. It is less certain that Mendoza knew that the defect affected safety. The tractor had not been tagged out of service when the headlight malfunction was noted, undoubtedly because it had been operated in daylight. Both Mendoza and Rice believed that the tractor would not be operated in conditions of low visibility if the headlights were not functioning. Nevertheless, Mendoza should have been aware that there were occasions, however, rare, when the tractor might have been operated in conditions of reduced visibility, and that a miner might choose to operate the tractor in such conditions if he was unable to make the headlights function. Since no efforts to correct the defect had been initiated, Florida Rock is charged with knowledge of the violative condition.

            Obviousness - Extensiveness - Notice of need for compliance

            The defect affecting the tractor’s headlights, which was reported during the pre-operational inspections, was an obvious condition. However, in light of the apparently rare occasions that the tractor might have been operated in conditions of reduced visibility, the “violative condition,” i.e., failure to timely repair a defect affecting safety so as to prevent creating a hazard to persons, was not particularly obvious. There was only one defect on mobile equipment that had the potential to affect safety, and that would have been only on rare occasions. Consequently, the violative condition was not extensive. There is no contention that Florida Rock had been put on notice that greater compliance efforts were necessary.

            Length of time violation existed.

            The violative condition was the failure to correct a defect affecting safety in a timely manner so as to prevent the creation of a hazard to persons. The problem with the headlights was first reported on September 23. While there were subsequent reports that noted no problems with the headlights, other reports put Mendoza and Florida Rock on notice that the problem continued to exist. By the time of the inspection, steps should have been taken to correct the problem in order to avoid exposing miners to a hazard. Under continued normal mining operations, it may have continued for months.

            Danger to miners

            The violative condition did not pose a high degree of danger to miners. Had it been established that Florida Rock failed to address “numerous” safety defects, as stated in the order, a different conclusion could have been drawn. The same is true if the tractor had been used in production such that it typically would have been operated during the dark early morning hours. On the rare occasion that the tractor might have been operated in conditions of reduced visibility, and the operator would have been unable to get the headlights to function, and the security lighting did not provide sufficient illumination in the intended work area, it is likely that use of the tractor would have been deferred, or it would have been taken out of service.

            Upon consideration of all of the pertinent factors, Florida Rock’s negligence with respect to the violation, i.e., the failure of supervisor/agents to address the reports of headlight malfunctions on the tractor, did not rise to the level of gross negligence or deliberate indifference. I find that the violation was not the result of Florida Rock’s unwarrantable failure, but that its negligence was high.

The Appropriate Civil Penalties

            Section 110(i) of the Act provides, that in assessing civil penalties, the Commission must consider the operator’s history of previous violations, the appropriateness of the penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator’s ability to continue in business, the gravity of the violation, and 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). The determination of the proper civil penalty is committed to the Administrative Law Judge’s discretion, which is bounded by the statutory criteria of section 110(i) of the Mine Act as well as the deterrent purpose of the Mine Act’s penalty assessment scheme. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984).

            The Tampa Sales Yard is a small mine, and it had no history of violations during the pertinent time period. Ex. G-11. Florida Rock does not contend that payment of the proposed penalties would affect its ability to continue in business. Florida Rock demonstrated good faith in promptly abating the violations. The negligence and gravity factors have been addressed with respect to each violation.

            Citation No. 6596602 is affirmed. However, it was found not to be S&S and was not the result of Florida Rock’s unwarrantable failure. Rather its negligence was moderate. A specially assessed civil penalty of $2,700.00 was proposed by the Secretary. Considering the reductions in the level of negligence and gravity, the factors enumerated in section 110(i) of the Act, and guided by the Secretary’s penalty assessment regulations, I impose a penalty in the amount of $250.00.

            Order No. 6596610 is affirmed as a violation. However, it was found not to be S&S, and was not the result of Florida Rock’s unwarrantable failure. The violation was unlikely to result in permanently disabling injury, and Florida Rock’s negligence was high. A specially assessed civil penalty of $7,100.00 was proposed by the Secretary. Considering the reductions in the levels of negligence and gravity, the factors enumerated in section 110(i) of the Act, and guided by the Secretary’s penalty assessment regulations, I impose a penalty in the amount of $500.00.

ORDER

            Citation No. 6596602 and Order No. 6596610 are modified to citations issued pursuant to section 104(a) of the Act, and are AFFIRMED, as modified. Respondent is ORDERED to pay civil penalties in the total amount of $750.00 within 45 days.

                                                                        /s/ Michael E. Zielinski

                                                                        Michael E. Zielinski

                                                                        Senior Administrative Law Judge

Distribution (Certified Mail):

Jonathan Hoffmeister, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, SW, Atlanta, GA 30303

William Doran, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 2400 N. Street, N.W., Fifth Floor, Washington, D.C. 20037