DECISION AND ORDER

Appearances: Jeffrey M. Leake, Esq., U.S. Department of Labor, Office of the Solicitor,

                        Denver, Colorado, for Petitioner

                        R. Lance Witcher, Esq., Ogletree, Deakins, Nash, Smoak, & Stewart, St. Louis

                        Missouri, for Respondent

Before:            Judge McCarthy

                                                I.         Statement of the Case

            These cases are before me upon three Petitions for Assessment of Civil Penalties under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The cases involve two unsettled Dockets No. CENT 2011-460 and CENT 2010-1256. Undisputed facts establish that a rock jam occurred during an MSHA inspection and rank-and-file plant operator, Harold Nichelson, was observed by MSHA inspector, Lawrence Sherrill, standing on an inclined conveyor belt, ten feet off the ground, using a six-foot breaker bar to clear the jam. Nichelson did not utilize fall protection or follow prescribed lock out/tag out protocol. These alleged violations occurred shortly after the inspector observed plant manager, Tim Stewart, speak to Nichelson about the rock jam near a loud generator.

            Specifically, Docket No. CENT 2011-460 involves a single 104(d)(1) citation, Citation No. 6575266. The citation alleges that Respondent unwarrantably failed to comply with the fall protection standard at 30 C.F.R. § 56.15005. The citation ascribes high negligence to Respondent for a violative practice that was “highly likely” to result in an injury that could reasonably be expected to be fatal. The parties stipulated that the actions alleged constituted a violation of the standard and that the citation was correctly characterized as significant and substantial (S&S). The Secretary has proposed a specially assessed penalty of $52,500 for this citation.

            Docket No. CENT 2010-1256 involves a single 104(d)(1) order, Order No. 6575267. The Order alleges that Respondent unwarrantably failed to comply with the lock out/tag out standard at 30 C.F.R. § 56.12016. The citation ascribes high negligence to Respondent for a violative condition that was “highly likely” to result in an injury that could reasonably be expected to be fatal. The parties stipulated that the actions alleged constituted a violation of the standard and that the citation was correctly characterized as significant and substantial (S&S). The Secretary has proposed a penalty of $17,301 for this citation in accordance with the part 100.3 criteria. 30 C.F.R. § 100.3.

            After numerous conference calls with the undersigned, the parties were unable to settle this matter. Accordingly, an evidentiary hearing was held in Jefferson City, Missouri. The issues remaining in dispute are the unwarrantable failure and high negligence designations, the gravity designations as highly likely to result in a fatal injury, and the appropriateness of the proposed penalties. Tr. 104-05.

            The parties introduced testimony and documentary evidence, and witnesses were sequestered. For the reasons set forth herein, I modify Citation No. 6575266 to change the type of action from a section 104(d)(1) citation to a section 104(a) citation and to reduce the level of negligence from “high” to “moderate.” Order No. 6575267 is vacated. Based on the entire record, including the parties’ post-hearing briefs and my observation of the demeanor of the witnesses, I find the following:

II. Stipulated Facts

1. The dockets involve a surface, crushed and broken limestone mine known as the Portable Plant No. 1, which is owned and operated by Respondent, Magruder Limestone Company, Incorporated.

2. The mine, MSHA ID No. 23-00077, is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq., the Mine Act.

3. The administrative law judge has jurisdiction over this proceeding pursuant to section 105 of the Mine Act.

4. Respondent is an operator as defined in section 3(d) of the Mine Act, 30 U.S.C. § 802(d), at the mine at which the citations and order at issue in this proceeding were issued.

5. The parties stipulated to the authenticity of their exhibits, but not to the relevance or truth of the matters asserted therein.

6. Respondent, Magruder Limestone, is engaged in mining operations in the United States, and its mining operations affect interstate commerce.

7. Lawrence D. Sherrill is an authorized representative of the United States Secretary of Labor, assigned to MSHA’s Rolla, Missouri North Field Office, and was acting in an official capacity when the citations and order were issued.

8.         The proposed penalties will not affect Respondent’s ability to remain in business.

9. The certified copy of the MSHA assessed violations history reflects the history of the mine for fifteen months prior to the date of the citations and order.

10. Citation No. 6575266 and Order No. 6575267 constitute significant and substantial violations of 30 C.F.R. § 56.15005 and 30 C.F.R. § 56.12016, respectively.

11.      Plant operator Nichelson is a rank-and-file miner for the purpose of imputing negligence.

Tr. 19-20, 94.                         

 III. Findings of Fact

Factual Background

            On July 14, 2010, at 8:45 a.m., Inspector Sherrill began a two-day, regular inspection of Magruder Limestone Portable Plant #1, a limestone processing facility, located near Bagnell, Missouri. Tr. 62, 64, 67. Inspector Sherrill was accompanied by his supervisor, Fred Moore, so that Moore could make an annual assessment of Sherrill’s job performance. Tr. 67. Sherrill and Moore announced their arrival, met with plant manager Tim Stewart, reviewed the history of the mine’s violations, and discussed MSHA’s Rules to Live By and SLAM/SMART program to reduce accidents. Plant manager Stewart accompanied inspectors Sherrill and Moore during the inspection. Tr. 77.

            About two months before the July 14, 2010 inspection, Stewart had been promoted to plant manager, the sole management official at the mine. Tr. 248-52. When promoted, Stewart reviewed MSHA’s Rules to Live By with his supervisor, Ron Twellman, the superintendent for all of Respondent’s facilities. Superintendent Twellman instructed Stewart that he was responsible for leading by example, accompanying MSHA during inspections, and monitoring employees to make sure that they complied with MSHA standards. Tr. 251-53.

            Before his promotion to plant manager, Stewart worked for Respondent as a rank-and-file miner for about seven years. Tr. 248, 250. Stewart handled approximately ten rock jams as a rank-and-file miner. Tr. 306. Stewart testified that a rock jam would occur when the “jaw” of the crusher did not crush rock into small enough pieces to fall through the hole in the surge bin and onto the conveyor belt. The surge bin would then jam and the rock jam would need to be cleared with a pry bar or with one’s hands. Tr. 270-71. Stewart further testified that the plant supervisor typically clears the rock jams and that Stewart learned how to clear rock jams by watching his supervisors, which he described as a good way to learn. Tr. 267-68, 274, 306. The first time that Stewart cleared a rock jam on his own involved a situation in which Stewart’s supervisor was “just busy doing something else and [Stewart] was there” to clear the jam. Tr. 268.

            Consistent with prior deposition testimony, Stewart admitted that before he became a supervisor, he handled rock jams on at least two or three occasions without locking out because he was in a hurry. Tr. 296-98, 306. He further admitted that he sometimes accessed elevated positions without using fall protection. Tr. 307. The record establishes that plant operator Nichelson was employed at the small plant at this time, although Nichelson testified that he never observed Stewart clear a rock jam until he became supervisor. Tr. 298-99, 373.

            The instant inspection was Stewart’s first as plant manager. He was nervous, particularly with two inspectors present, because Stewart did not want to receive a “bunch of citations” on his watch. Tr. 249-51. During the first few hours of the inspection, however, Respondent received several section 104(a) citations. Tr. 254-256.

            Thereafter, just prior to the events leading to 104(d)(1) Citation No. 6575266 and Order No. 6575267, the inspection party was examining and testing mobile equipment, including front end loaders and then planned to break for lunch. Tr. 81-82, 171-72, 258-59. Stewart stepped away for a few minutes to meet with a vendor. Tr. 78, 257-58. Inspectors Sherrill and Moore waited for Stewart to return to the area, where he would be asked to perform a brake test on a loader located about thirty feet north of the generator and conveyor belt in question. Tr. 78-80.

The Brief Exchange Between Stewart and Nichelson

            As Stewart was returning, Sherrill observed Stewart emerge from behind the generator trailer and engage in a brief conversation with Nichelson. Tr. 79. Nichelson was standing around with other miners waiting for Stewart so that he could inform Stewart that the Syntron feeder was jammed. The record establishes that prior to leaving the control booth, Nichelson had shut down the jaw feeder, Jaw Belt 1, 2, and 3, and the Syntron feeder. Tr. 343-44. The conversation occurred between the conveyor belt and the generator, located ten to fifteen feet apart. Tr. 79-80.

            Nichelson began the conversation by informing Stewart that the “the Syntron feeder is plugged up.” Tr. 257. Stewart’s response, however, is the subject of controversy. While Stewart offered slightly different, although not necessarily contradictory testimony regarding the conversation, he consistently maintained that he had told Nichelson to shut down the plant and wait. Tr. 309-12. At hearing, Stewart was unsure if he had specifically stated that Nichelson was to wait until Stewart finished with the MSHA inspectors, who were soon leaving for lunch. Id. Nichelson, however, testified that he heard Stewart tell him to shut the plant down, but did not recall hearing Stewart tell him to wait. Tr. 344-45. It was not until Nichelson spoke to others in preparation for hearing that he began to believe that Stewart had instructed him to wait. Tr. 346-47.

            While inspector Sherrill testified that he had no reason to doubt Stewart’s recollection of the conversation, Sherrill suggested that Nichelson was unable to understand Stewart due to the extremely loud diesel generator, near which the conversation took place. Tr. 111-12, 127-29. Although Sherrill did not measure sound levels at the location of the conversation, he estimated the sound levels next to the generator to be about 95 decibels based on his experience and based on other sound levels that he measured at different locations of the plant during the inspection. Id. Sherrill testified that verbal communication in such a loud environment would be difficult, if not impossible. Id.

            On direct, Stewart was asked what his expectations were after he gave instructions to Nichelson. Stewart testified, “I expected he shut the belt down and he was sitting there waiting on me.” Tr. 261. On cross, however, when confronted with his deposition testimony, Stewart testified that he believed that Nichelson left in the direction that he did after the conversation so that Nichelson could perform lock out/tag out. Tr. 321. Moreover, previously on direct, Stewart testified that the person who was going to handle the rock jam was the person who needs to lock out and tag out the power source for the equipment. Tr. 287. When asked by the undersigned whether he told Nichelson to lock and tag out the conveyor, Stewart testified, “I just didn’t. I was planning on coming back and doing it.” Tr. 286. Stewart, however, had previously witnessed Nichelson clear one rock jam and was aware that Nichelson had cleared at least two rock jams, prior to the instant incident on July 14, 2010. Tr. 273.

            Stewart testified that he would have never predicted that Nichelson was going to try and clear the rock jam without first performing lock out/tag out. Tr. 286. Inspector Sherrill confirmed that there was no evidence to suggest that Stewart would doubt Nichelson’s compliance with the mandatory safety standards at issue. Tr. 158, 179. Stewart testified that Nichelson had never disregarded one of his directives and that he had no reason to think that Nichelson did not hear him, or that Nichelson was not going to shut the rest of the plant down and wait for him. Tr. 277.

The Alleged Violations

             After Stewart and Nichelson conferred near the rock jam at the Syntron feeder, adjacent to the generator trailer, Stewart returned to the loader to perform the brake test for MSHA. Tr. 80-82, 277, 353-54. Stewart first informed the inspectors that there was a rock jam. Stewart then proceeded with the brake test for the loader on the ramp where it was operated. Tr. 84.

            Meanwhile, after Stewart left, Nichelson shut down the conveyor belt. Tr. 349. Nichelson testified that he then climbed a ladder with a six-foot breaker bar and attempted to free the rock jam from the ladder. When Nichelson was unable to clear the rock jam from the ladder, he climbed out onto the conveyor belt. Id. Nichelson testified that he did not lock and tag out the conveyor belt or use fall protection because he was in a hurry and wanted to get the plant back on line. Tr. 357.

            Nichelson testified that he understood when and how to use fall protection and perform lock out/tag out, and he knew that he should have done so in this instance. Tr. 351-52. Nichelson testified that he knew how to clear a rock jam and that he had received training on fall protection and lock out/tag out, but failed to follow such procedures because “I thought I could hurry up and get it unjammed.” Nichelson further testified that he was in a such a hurry “[s]o I could get the plant back on line,” and he was nervous around MSHA. Tr. 356-57. Nichelson explained that the MSHA inspection made him nervous because “they are kind of like the police.” Tr. 342-43. Nichelson testified that while he has sometimes handled rock jams in the past, he is afraid of heights, and that he normally preferred that Stewart handle the rock jams. Tr. 353. Nichelson further testified that he thought he could quickly clear the jam and then go back to the control booth, where he could work outside the presence of MSHA. Tr. 351-52. Sherrill testified that this was understandable as even veteran miners can be nervous around MSHA, and we all make mistakes and/or act unpredictably when we are nervous. Tr. 197.

            Meanwhile, after the successful brake test, as the inspection party returned toward the plant, inspector Sherrill observed Nichelson working on the inclined conveyor belt without fall protection. Tr. 84-85, 87, 349; P. Ex. 1. Although Sherrill did not take actual measurements, he estimated that the rubber conveyor belt was thirty-six to fourty-two inches wide and that Nichelson was ten feet off the ground on about a 30-degree incline. Tr. 84-86, 102. The belt was equipped with troughing idlers and was not flat. Rather, it was rounded up on the sides to keep rock in the middle of the belt. Tr. 86. Sherrill described the area below the conveyor to be flat, hard rock, with some spillage composed of softball-sized limestone rocks. Tr. 87.

            After his observation, Sherrill briskly walked over and, based on anecdotal knowledge of falls resulting in fatalities, issued an oral imminent danger order. Sherrill determined that the violation of the fall protection standard created a situation in which a fatal injury from falling was “highly likely” to occur. P. Exs. 1 and 4; Tr. 102. Sherrill testified that based on Nichelson’s position on the belt, the most likely scenario would be that Nichelson fell sideways off the side of the belt in an effort to dislodge the rock jam. Tr. 103. Sherrill discounted the risk that Nichelson could fall forward into the surge bin, but testified that, while unlikely, it was possible for Nichelson to fall into the Syntron feeder if the belt was inadvertently started. Tr. 102-103. Sherrill testified that if Nichelson fell off the side of the belt, he could have broken his neck or back upon impact, or been impaled by the breaker bar. Tr. 102-04. Sherrill testified that the need for fall protection would have been “obvious to anyone.” Tr. 130.

            The oral imminent danger order was converted to a written section 107(a) Order No. 6575265. Tr. 91; P. Ex. 1. That Order was terminated when Nichelson complied with Sherrill’s directive to climb down off the conveyor. Tr. 87, 91; P. Ex. 1. Sherrill testified that he observed Nichelson on the conveyor for about twenty to thirty seconds. Tr. 121. Nichelson, however, testified that it was maybe five seconds. Tr. 349.

            The inspection party then walked over to Nichelson. Stewart said, “Bones, you can’t be up there.” Tr. 285. It is noteworthy that Stewart also told inspector Sherrill that he was surprised that Nichelson was up there because Stewart had instructed Nichelson to “shut her down and wait.” Tr. 284-85. Significantly, Sherrill conceded on cross examination that Stewart told him, “I don’t know why [Nichelson] was doing that. I told him to shut it down and wait for me.” Tr. 171, 206.

            Upon interviewing Nichelson in Stewart’s presence, Sherrill determined that Nichelson had also failed to perform lock out/tag out on the conveyor to prevent it from starting. Tr. 95, 285; P. Ex. 1. Sherrill also determined that the failure to lock out the conveyor belt created a risk that the belt would inadvertently move, causing Nichelson, who was performing work on the belt, to fall. Tr. 135-40. Sherrill testified that another individual could have accidentally started the conveyor belt by touching the start button in the control booth. Tr. 131. Sherrill also testified about a secondary concern of entanglement. Tr. 137-40. Sherrill testified that if the conveyor belt inadvertently moved, Nichelson’s extremities likely would have become entangled in a pinch point or crushed by the machinery. Id.

            Thereafter, Sherrill issued the 104(d)(1) Citation and Order at issue. Sherrill determined that Nichelson’s failure to use fall protection and his failure to lock out the power source to the conveyor belt were violations of mandatory safety standards 30 C.F.R. § 56.15005 and 30 C.F.R. § 56.12016, respectively. Sherrill further determined that Stewart’s careless instructions in the face of a hazardous rock jam constituted a serious lack of reasonable care and high negligence and was aggravated conduct constituting unwarrantable failure. Tr. 117; P. Exs. 4, 5. Sherrill explained that he met with Stewart and Nichelson and determined that there were no mitigating factors. Tr. 107-115.

            The fall protection violation was abated when Sherrill ordered Nichelson to come down to safety. See P. Ex. 1. Nichelson was re-instructed on the use of fall protection. P. Ex. 4. Nichelson obtained a lock and properly locked out the conveyor electrical disconnect. P. Ex. 5.

Respondent’s History, Training, Supervision, Discipline and Abatement

            Respondent’s Portable Plant #1 did not have any prior violations of the cited fall protection or lock out/tag out standards. Tr. 145, 210; P. Ex. 13, pp. 3-4. From April 2009 through July 13, 2010, the mine received ten total citations during three inspections, none of which were designated as unwarrantable failures. P. Ex. 13, pp. 3-4. Inspector Sherrill candidly acknowledged that “based upon my experience with the Magruder Limestone Company, they’re a good company. They try hard to do the right things . . .” Tr. 213-14.

             Sherrill testified on cross examination that Nichelson had been adequately trained on both fall protection and lock out/tag out and that Sherrill had no concerns regarding Respondent’s Part 46 training. Tr. 158-59. Sherrill also testified that he had no concerns regarding Stewart’s supervision of Respondent’s miners. Tr. 160.

            At hearing, Respondent provided several records of Nichelson’s training. While working at Midwest Stone in 2007, Nichelson received new miner training on February 19-22, 2007. R. Ex. 4. Later that year, Nichelson was hired by Respondent. Tr. 373-74. On May 1, 2007, Nichelson received newly-hired experienced miner training. R. Ex. 5. Respondent also produced records documenting annual refresher training for Nichelson on March 11, 2009 and March 4, 2010. R. Ex. 7, 8. At hearing, Nichelson recalled that the lock out/tag out training and fall protection training was provided as part of the annual training. Tr. 367-69. Stewart’s testimony confirmed that lock out/tag out, fall protection, and the Rules to Live By were covered, among other things. Tr. 279, 280-283.

            In response to a leading question, “You’ve trained your employees - - you’ve talked to your employees during the tool box talks about the necessity of doing [lock out/tag out and wearing fall protection],” Stewart said, “Yes.” Tr. 267. Subsequently, on questioning from the undersigned, Stewart had no specific recollection of personally covering lock out/tag out in tool box talks with employees between March and July 2010. Tr. 281. When asked by the undersigned what he did personally to train his employees on lock out/tag out, Stewart responded, “[p]robably did nothing.” When similarly asked about fall protection, Stewart testified, “[w]e just talked about it a lot.” Tr. 304.

            Stewart testified that he had never observed Nichelson fail to use fall protection or perform lock out/tag out before. Tr. 284. On questioning from the undersigned, Nichelson testified that Stewart told him that he should wear fall protection whenever he was above six feet and that this discussion probably occurred in the scale house during a tool box meeting when miners Ron Brown and Ron Butzlaff were also present. When asked what Stewart said, Nichelson stated that Stewart told them “[t]hat any time there’s a chance you may fall that you should wear fall protection.” Tr. 372.

Nichelson testified, somewhat equivocally, that he “really [did not] remember” whether he saw Stewart clear a rock jam before Stewart became the plant manager. Tr. 373. He further testified that Stewart’s predecessor, Eric Denn, trained Nichelson on fall protection and lock out/tag out sometime after 2008. Tr. 373. In response to a series of leading questions, Nichelson confirmed that previously he had always locked out and tied off and has continued to fully comply with those standards since the incident. Tr. 357, 359, 366.

Sherrill, Stewart, and Nichelson testified that Stewart advised Nichelson that he would be discharged if he ever violated the lock out/tag out or fall protection standards again. Tr. 326, 357-58. After the incident, Stewart “chewed” or “cussed” Nichelson out and told him that he would be fired if it ever happened again. Tr. 163, 234, 327. Stewart further told Nichelson, “[y]ou can’t be up there with anybody here, much less MSHA.” Tr. 326-27. That verbal admonishment was the extent of discipline that Nichelson received. Tr. 234-35. Respondent had no formal disciplinary policy, and no formal written discipline was offered into evidence. Tr. 288.

                                    IV.      Positions of the Parties

The Secretary’s Arguments

            The Secretary’s primary argument is that Stewart’s actions in the face of a hazardous condition did not meet the heightened standard of care for supervisors. The Secretary argues that cases involving a sudden, yet high degree of danger, are not always suitable for traditional factor-dependent analysis under Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001). P. Br. at 13-14, citing Midwest Material Co., 19 FMSHRC 30 (Jan. 1997). That is, where hazardous conditions involve “a high degree of danger,” a supervisor is held to a “heightened standard of care.” Lafarge Constr. Materials, 20 FMSHRC 1140, 1145-48 (Oct. 1988). The Secretary argues that a supervisor’s failure to meet that heightened standard of care supports an unwarrantable failure determination. Id.

            The Secretary further argues that an unwarrantable designation is justified because Stewart failed to approach the handling of the rock jam as a hazardous condition, thus posing a potentially high degree of danger to Nichelson, a miner under his supervision. The Secretary argues that Stewart acted with a “serious lack of reasonable care” when he issued instructions to Nichelson in front of a diesel generator. The Secretary claims that such instructions were easily misunderstood when delivered near the 95 decibels of noise emitted by the diesel generator. Further, the Secretary argues that shouting instructions in front of a diesel generator implicitly conveys a sense of urgency that compelled Nichelson to take immediate action without regard for his own safety.

            The Secretary also argues that an unwarrantable failure determination is warranted under a traditional, factor-dependent analysis, which considers aggravated conduct based on the length of time that the violation(s) existed, the extent of the violative condition(s), whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition(s), whether the violation(s) is/are obvious or pose a high degree of danger, and the operator’s knowledge of the existence of the violation(s). See Lopke Quarries, Inc., 23 FMSHRC 705, 711 (2001); see also Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (1994). The Secretary argues that the alleged violations posed a high degree of danger and that Stewart should have known that a miner may overlook lock out/tag out and fall protection protocol when in a hurry. P. Br. 18. While Nichelson was only exposed to the hazard for a short time, the Secretary argues that the condition was extensive because work was being performed on the elevated belt. P. Br. 17. Regarding notice that greater compliance efforts were necessary, the Secretary proposes that MSHA’s Rules to Live By are adequate to put an operator on notice that greater efforts were necessary to achieve compliance with the standards. Id.

            The Secretary further argues that the alleged violations resulted from Respondent’s high negligence because Respondent knew or should have known of them, and there were no mitigating circumstances. P. Br. at 19. Specifically, the Secretary argues that Stewart’s response to a highly hazardous condition, the rock jam, constituted high negligence because Stewart should have given effective instructions to Nichelson regarding how to clear the rock jam, or should have ensured that Nichelson used fall protection and followed lock out/tag out procedures. Id. at 20. The Secretary notes that Ron Butzlaff was the plant operator in charge of the control booth prior to Nichelson, and that Butzlaff or some other miner could have inadvertently started the conveyor belt, particularly since Stewart testified that one could not see the area involving the rock jam from the control booth. P. Br. at 21-22; Tr. 324.

            Accordingly, the Secretary requests that I enforce Citation No. 6575266 and Order No. 6575267 as written, and assess the proposed penalties. P. Br. at 24.

            The Respondent’s Arguments

            Respondent argues that the negligence of a rank-and-file miner (Nichelson) cannot be imputed to it for civil penalty or unwarrantable failure purposes. See Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995); Western Fuels-Utah, Inc., 10 FMSHRC 256, 260-61 (Mar. 1988); Southern Ohio Coal Co., 4 FMSHRC 1459, 1464 (Aug. 1982) (SOCCO)). The Respondent further highlights Commission precedent that “where a rank-and-file employee has violated the Act, the operator’s supervision, training, and disciplining of its employees must be examined to determine if the operator has taken reasonable steps necessary to prevent the rank-and-file miner’s violative conduct.” SOCCO, 4 FMSHRC at 1464.

            Respondent argues that the Secretary has failed to offer any evidence that Respondent’s supervision, training or discipline was inadequate, and therefore cannot demonstrate that its negligence was anything but moderate or low. Respondent emphasizes Sherrill’s testimony that he had no concerns about Respondent’s supervision, training, or discipline generally, and further notes that Commission judges have rejected “high negligence” under the theory that a supervisor should have given a rank-and-file employee clearer or more intelligible instructions, where the rank-and-file miner was adequately trained and supervised. See, e.g., Granite Rock Co., 34 FMSHRC 261, 267 (Jan. 2012) (ALJ); CCP Group, Inc., 31 FMSHRC 261, 264 (Feb. 2009) (ALJ); Cf., Blue Diamond Coal Co., 2004 WL 2544672, at *11-12 (July 2004) (ALJ). Further, Respondent states that the Secretary failed to apply his own definition of high negligence because numerous mitigating circumstances are present. See R. Br. at 12-15.

            Respondent also argues that the Secretary has failed to establish an unwarrantable failure. R. Br. at 15-26. Respondent argues that the extent of the alleged violations were rather limited in scope, since the area on top of the conveyor was only a small section of the processing plant, measuring about 3 to 3.5 feet wide, and Sherrill testified that only falls from the sides of the conveyor would likely result in fatal injuries. Tr. 86, 89. Respondent also notes that Sherrill did not reference any entanglement or crushing hazards in his inspection documentation or during his deposition, and he admitted that the former were remote and the latter were nonexistent. Tr. 139-140, 225-26, 262. Additionally, Respondent says that there is no evidence to suggest that it did not typically use fall protection or perform lock out/tag out. Respondent further asserts that the top of the conveyor was accessed only periodically because rock jams at elevated heights occurred only once a week, and Stewart typically accessed this area and wore a safety belt and lanyard. See R. Br. at 17; Tr. 333. Respondent argues that the violative conditions were immediately abated and did not require significant abatement efforts. Respondent also argues that the duration of the alleged violations weighs against an unwarrantable failure finding.

            Respondent describes the incident as “isolated.” Although Stewart acknowledged a couple of instances as a rank-and-file miner when he did not wear fall protection or when he cleared a rock jam without performing lock out/tag out, Stewart testified that he has always complied with such standards since promotion to plant manager, at which time he was instructed to model safe behavior and monitor employees for compliance. Tr. 251-253. Further, Respondent notes that Nichelson never observed Stewart violate lock out/tag out or fall protection standards. Tr. 251, 357.

            Respondent further argues that it was not placed on notice that greater compliance efforts were necessary. Respondent did not have a history of violating 30 C.F.R. § 56.15005 or 30 C.F.R. § 56.12016. Respondent claims that the Secretary failed to present any evidence that MSHA provided warnings that greater compliance was required. Respondent asserts that Sherrill’s testimony that Respondent likely was mailed the Rules to Live By, which were discussed generally during the pre-inspection conference, is insufficient to show that Respondent needed improved compliance. R. Br. at 19-20. Since Sherrill conceded that Respondent’s training, supervision, and enforcement of lock out/tag out and fall protection was sufficient, and there is no evidence to suggest that Stewart witnessed prior violations by Nichelson, Respondent claims that it was never put on notice that greater compliance efforts were necessary. See, e.g., Cougar Coal Company, Inc., 25 FMSHRC 513, 519 (Sept. 2003); see also R. Br. at 20.

            With regard to the operator’s knowledge of the existence of the violation(s), Respondent argues that the lack of knowledge of the operator or its sole agent, Stewart, weighs against a finding of unwarrantable failure. R. Br. at 21-22. Finally, Respondent argues that the level of priority that it placed on abatement is only relevant when it has been placed on notice of a problem. R. Br. at 22; IO Coal, 31 FMSHRC at 1356, citing Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997). Hence, Respondent argues that the focus is on abatement efforts made prior to the Citation/Order at issue. Since there is no evidence that Respondent was ever put on notice that Nichelson violated the cited standards prior to the inspection, Respondent says that abatement is a neutral factor in the analysis. Id. In sum, Respondent concludes that the Secretary failed to demonstrate that its conduct constituted unwarrantable failures. Accordingly, Respondent requests that the Citation and Order be modified to 104(a) citations with low or moderate negligence and appropriately revised penalties.

V. Legal Analysis

Order No. 6575267

            Order No. 6575267 alleges a violation of 30 C.F.R. § 56.12016, which states in pertinent part:

Electrical powered equipment shall be deenergized before mechanical work is done on such equipment. Power switches shall be locked out or other measures taken which shall prevent the equipment from being energized without the knowledge of the individuals working on it.

The parties stipulated to a violation of this standard and that the Order was properly designated as S&S. Consequently, the Secretary’s litigation theory and Respondent’s argument on brief was based upon the assumption that lock out/tag out was required while Nichelson was on top of the conveyor belt attempting to clear the rock jam. Based on the weight of well-established precedent, I find that this stipulation is contrary to the plain meaning of the standard. Therefore, I set aside the party’s stipulation and vacate Order No. 6575267.

            Courts have consistently concluded that parties may not stipulate to issues of law. Issues of law are the province of courts, not of parties to a lawsuit. Accordingly, courts are not bound to accept stipulations as to questions of law. Estate of Sanford v. Comm’r of IRS, 308 U.S. 39, 51 (1939); accord Gander v. Livoti, 250 F.3d 606, 609 (8th Cir. 2001). Similarly, courts have long held that a party may not stipulate to a legal conclusion. “If the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously inoperative; since the court cannot be controlled by agreement of counsel on a subsidiary question of law.” Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289-90 (1917) cited approvingly in U.S. Nat. Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448 (1993); see also Sebold v. Sebold, 444 F.2d 864, 870, n. 8 (D.C. Cir. 1971).

            It is the providence of the judge to make legal conclusions after analyzing and weighing all probative evidence. Mid–Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994); Sunny Ridge Mining Co., 19 FMSHRC 254, 257 (Feb. 1997). The parties’ stipulation may not serve as a means to divest an adjudicator of his or her authority to make conclusions of law. See Saviano v. Comm’r of IRS, 765 F.2d 643, 645 (7th Cir. 1985), quoted in Neuens v. City of Columbus, 303 F.3d 667, 670 (6th Cir. 2002) (district court erred when it “blindly accepted [a] stipulation without engaging in an independent review of whether [someone] was acting under color of state law”); see also Kamen v. Kemper Fin. Servs. Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.”); Hankins v. Lyght, 441 F.3d 96, 104 (2d Cir. 2006) (“We are required to interpret federal statutes as they are written . . . and we are not bound by parties’ stipulations of law.”)

            Here, the parties have stipulated to the fundamental legal conclusion that the facts alleged in Order No. 6575267 constitute a violation of 30 C.F.R. § 56.12016. The regulation, however, does not cover the violative condition the inspector sought to abate in the citation. Although the Secretary has long argued that § 56.12016 covers both hazards associated with electrical shock and mechanical movement, this interpretation is contrary to the clear meaning of the regulation and the context of the standard in the regulatory scheme. Phelps Dodge Corp., 681 F.2d 1189, 1192 (9th Cir. 1982); Northshore Mining Co., 209 F.3d 706 (8th Cir. 2013).

            Where a regulation is ambiguous, an agency’s interpretation of its own regulation should be given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); accord Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994); Auer v. Robbins, 519 U.S. 452 (1997); see also Knife River Corp., 34 FMSHRC 1109 (May 2012) (ALJ). The Commission has found that “[a]lthough section 56.12016, standing alone, could be viewed as containing a plain and unambiguous lockout requirement, section 56.14105 and the case law interpreting that standard creates uncertainty regarding the scope of that lockout requirement.” Ray, employed by Leo Journagan Constr. Co., 20 FMSHRC 1014, 1023 (Sept. 1998); but see Empire Iron Mining P’ship, 29 FMSHRC 999, n. 8 (Dec. 2007) (agreeing in dictum that the language of § 56.12016 “is clear and unambiguous.”).

            Disagreements concerning the scope of lock out/tag out requirements have persisted for decades. In Phelps Dodge Corp., which involved very similar facts to those at issue here, the Ninth Circuit vacated a citation applying the lock out/tag out requirement (30 C.F.R. § 55.12-16 (1979) (now 30 C.F.R. § 56.12016)) when a miner was standing on a panfeeder attempting to clear a rock jam in the drop chute. 681 F.2d 1189 (9th Cir. 1982). Although the miner had turned the panfeeder off at the control panel, he had not deenergized the equipment or followed lock out/tag out procedures. Phelps Dodge Corp., 3 FMSHRC 458, 460 (Feb. 1981) (ALJ). The Ninth Circuit held that the Secretary should have applied the “blocked against hazardous motion” standard (30 C.F.R. § 55.14-29 (1979) (now 30 C.F.R. § 56.14105)) to address the hazard instead of applying a “lock out” requirement, which the court found was intended to protect miners performing mechanical work where there existed a danger of electric shock. Phelps Dodge Corp., supra, 681 F.2d at 1190, 1192-93. The court noted that the lock out/tag out standard required equipment to be deenergized, was under the heading “electricity,” and was “sandwiched between regulations whose purpose is manifestly to prevent the accidental electrocution of mine workers.” Id. at 1192. The court concluded that the regulation’s emphasis on cutting the flow of electrical current, when read in conjunction with the “blocked against hazardous motion” standard, strongly suggests that electric shock was the regulation’s main concern. Id.

            The Ninth Circuit’s findings in Phelps Dodge thirty-four years ago were most recently echoed just this year by the Eighth Circuit in Northshore Mining Co., 709 F.3d 706 (2013). In Northshore, the Eighth Circuit vacated a citation issued when a MSHA inspector observed a miner working on the “Dutchman” portion of a shovel bucket that was not completely deenergized. Id. at 707. The miner had locked out and deenergized the control power, but had not locked out the main transformer that supplied power to the shovel bucket. Id. The Eighth Circuit emphasized that regulatory language cannot be construed in a vacuum. Id. at 710 (citing Davis v. Michigan Dep’t of the Treasury, 489 U.S. 803, 809 (1989)). Instead, the regulatory language must be read in context and with a view to its place in the overall statutory scheme. Id. The court stated:

Placing § 56.12016 in context resolves any ambiguity raised by this action and leads to the conclusion that MSHA's interpretation of the regulation's reach in this case is inconsistent with its text and placement in the regulatory scheme. The overall thrust of § 56.12016 is unmistakable when placed in context: it is written to abate the risk of electrocution. Section 56.12016 applies to the hazard of electrical shock, not the injuries sought to be avoided here from mechanical movement. We thus disagree with MSHA's conclusion that § 56.12016 was designed to target both mechanical movement and electrocution.

Id. at 710 (citations omitted).

            The Eighth Circuit further noted that although MSHA had the opportunity to amend the standard in the thirty years since Phelps Dodge, MSHA has failed to propose any amendments to § 56.12016 to respond to “longstanding judicial interpretation and ongoing discussion in administrative cases regarding the regulation’s applicability in these circumstances.” Id. at 711. While not dispositive, the court found that this fact weighed against deference to MSHA’s interpretation of the standard. Id.

            I find the reasoning of the majority’s decision in Phelps Dodge and the unanimous decision in Northshore to be persuasive. Nichelson’s actions, while placing him in danger of falling or entanglement, did not present a hazard of electric shock or electrocution. The Secretary offered no evidence to the contrary, failed to plead in the alternative a violation of § 56.14105, and assumed the risks of litigation. The cited standard imposed no duty on Respondent to lock and tag out the belt while Nichelson was clearing the rock jam. Accordingly, I find that the actions alleged in Order No. 6575267 do not constitute a violation of § 56.12016.

Citation No. 6575266

            A)       Negligence

            When assessing penalties, section 110(i) of the Mine Act requires the Commission to consider, inter alia, whether the operator was negligent. 30 U.S.C. § 820(i). Each mandatory standard carries with it an accompanying duty of care to avoid violations of the standard. If a violation of the standard occurs, an operator’s failure to meet the appropriate duty can lead to a finding of negligence. The fact that a violation was committed by a rank-and-file miner does not necessarily shield an operator from being deemed negligent. Where a rank-and-file miner’s conduct is deemed violative, one must look to such considerations as the foreseeability of the miner’s conduct, and the operator’s supervision, training, and disciplining of its employees to prevent violations of the standard(s) at issue. SOCCO, supra, 4 FMSHRC at 1463-64; see also Nacco Mining Co., 3 FMSHRC at 848, 850-51 (Apr. 1981) (construing the analogous penalty provision in the 1969 Coal Act where a foreman committed a violation), cited in A. H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). 

            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 take steps necessary to correct or prevent hazardous conditions or practices.” 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. High negligence is when “[t]he operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew of should have known of the violative condition or practice, but there are mitigating circumstances.” Id. Low negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he operator exercised diligence and could not have known of the violative condition or practice.” Id.

            After close examination of the record, I find that some circumstances mitigate Respondent’s negligence. Inspector Sherrill testified that there was no evidence to suggest that Stewart should have expected Nichelson to fail to use fall protection. Tr. 158. Stewart testified that he had seen Nichelson use fall protection at the mine and never observed any instances in which Nichelson failed to use fall protection when there was a danger of falling. Tr. 281, 284. Further, both Sherrill and Stewart agree that it was impossible for Stewart to see Nichelson from Stewart’s position at the time of the violative conduct. Tr. 170, 261.

            On the other hand, I reject Respondent’s argument that Nichelson’s Part 46 training mitigates Respondent’s negligence. The record establishes that although Nichelson was up to date on the basic level of training that MSHA requires of all miners, Respondent did not take any significant additional steps to reinforce the importance of fall protection. Similarly, the fact that Respondent provided fall protection at the mine site does not mitigate the negligence of the violation. Operators are required to comply with all relevant safety regulations and are not to be accorded leniency because they have met minimal expectations.

            I further reject the notion that Stewart’s discipline of Nichelson following the discovery of the violative practice mitigated Respondent’s negligence. Stewart’s discipline was not commensurate with the high level of danger that the violation posed to Nichelson. After the incident, Stewart “chewed” or “cussed” Nichelson out and told him that he would be fired if it ever happened again. Tr. 163, 234, 327. As Respondent had no formal disciplinary policy, the verbal admonishment was the extent of discipline that Nichelson received. Tr. 234-35; 288. Despite the seriousness of his conduct, Nichelson’s transgressions were resolved with no more than the proverbial slap on the wrist.

            The Secretary alleges that the violation is attributable to Respondent’s high negligence because the mine’s sole supervisor, Stewart, failed to approach the handling of the rock jam as a hazardous condition posing a potentially high degree of danger to a miner under his supervision. P. Br. at 14. More specifically, the Secretary contends that Stewart should have known that his instructions would be easily misunderstood when delivered beside the loud diesel generator. Id. Even if Stewart had instructed Nichelson to clear the rock jam himself, the Secretary has failed to show that Stewart was obligated to remind Nichelson to follow all relevant safety procedures when giving instructions. Sherrill credibly testified that the need for fall protection was obvious and that Nichelson had been adequately trained in the use of fall protection. Tr. 130, 158. Further, Sherrill testified that Stewart was not required to observe every instance in which a miner dons fall protection. Tr. 157-58. Stewart’s reliance on the fact that Nichelson would abide by his training and follow fall protection procedures, does not display negligence on the part of Respondent when, as Sherrill testified, there is no evidence suggesting that Stewart should have expected Nichelson to violate safety protocols. Tr. 158; see also Glenn, employed by Climax Molybdenum Co., 6 FMSHRC 1583, 1588-89 (July 1984) (corporate operators do not have a duty to instruct experienced rank-and-file miners to follow safety procedures when they do not know or have reason to know that the rank-and-file miners will engage in violative conduct).

            Nevertheless, Stewart’s decision to provide instructions near the diesel generator is not without consequence. In most cases, if a rank-and-file miner disobeys the direct instructions of a supervisor, such an action would serve as a significant mitigating factor in the negligence analysis. Western Fuels-Utah, Inc., 10 FMSHRC 256, 258-262 (Mar. 1988) (affirming judge's finding of no operator negligence when miner disobeyed an order of a supervisor and caused a violation of the Mine Act). Where the supervisor should have known that verbal communication would be ineffective, however, such instruction may not serve to mitigate the operator’s negligence. Inspector Sherrill credibly testified that the sound level near the generator was approximately 95 decibels. Tr. 129. Given Stewart’s familiarity with the mine, he should have been aware that the loud noise emitted from the generator could result in a communication failure.

            Accordingly, I find that Citation No. 6575266 was a product of moderate negligence on the part of the Respondent.

             B)        Unwarrantable Failure Principles

            The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d). It 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); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test).

             The Commission has recognized that whether conduct is “aggravated” in the context of unwarrantable failure is determined by considering the facts and circumstances of each case to determine if any aggravating or mitigating circumstances exist. 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 were 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, 353 (Mar. 2000) (“Consol”); 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, 43 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). A judge may determine, in his/her discretion, that some factors are not relevant, or may determine that some factors are much less important than other factors under the circumstances. IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009).

            Additionally, “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.” Lopke Quarries, supra, 23 FMSHRC at 711. An operator’s supervisors are held to a high standard of care, and a foreman’s involvement by failing to recognize the violation and take reasonable precautionary measures may be a factor supporting an unwarrantable failure finding. Pine Ridge Coal Co., 33 FMSHRC 987, 1021 (Apr. 2011) citing Lafarge Constr. Materials, 20 FMSHRC 1140, 1145-1148 (Oct. 1988), citing Midwest Material Co., 19 FMSHRC 30, 34-35 (Jan. 1997). 

            The Secretary bears the burden of proving all elements of an unwarrantable failure order under section 104(d) by a preponderance of the evidence. Having duly considered each factor below, I find that the Secretary has failed to establish an unwarrantable failure for either violative practice.

                        1)        The Extent of the Violative Practice

            The Commission has viewed the extent of a violative practice as an important element in the unwarrantable failure analysis. IO Coal Co., 31 FMSHRC 1346, 1351-52 (Dec. 2009). This factor considers the scope or magnitude of the violation. See Eastern Associated Coal, 32 FMSHRC at 1195, citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 708 (June 1988). In accessing the scope of a hazard, the Commission has found that the aggregate size of the area affected by the hazard must be examined independent of the percentage of the mine that said area occupies. See Eastern Associated Coal, 32 FMSHRC at 1194-95. Here, the violation was limited in scope. The area affected by the violative conduct was small, i.e., the lower section of a three-foot wide conveyor belt. It is undisputed that only one miner was at risk. Further, there is no evidence that lock out/tag out procedures were not followed or that fall protection was not used in other parts of the plant.

            In examining the extent of a violative practice, rather than a violative condition, the frequency at which miners perform the unsafe practice is an important factor in the unwarrantable analysis. Stewart admitted to similar actions in the past as a rank-and-file miner. Specifically, Stewart testified that during his seven years as a rank-and-file miner, he “sometimes” failed to use fall protection when accessing elevated positions. Tr. 298, 307. While such a practice cannot be condoned and is particularly troubling, the Secretary has not suggested or provided any evidence to indicate that similar violative conduct was more than just an infrequent occurrence in the past that has since been corrected. Furthermore, there is no evidence of an unlawful practice after Stewart was promoted to plant manager. Thus, while I am particularly troubled by Stewart’s admission of similar past violations and the fact that Nichelson was employed at the time of such violations, when viewed in the context of the totality of the record evidence, I decline to find that this past practice sufficiently tilts the extensiveness factor in favor of an unwarrantable failure finding.

            Another relevant consideration in determining whether the violation is extensive is the abatement measures taken to terminate the violative condition or practice. See, e.g., Eastern Associated Coal Corp., 32 FMSHRC 1189, 1196 (Oct. 2010); Peabody Coal Co., 14 FMSHRC 1258, 1263 (Aug. 1992). Citation No. 6575266 did not require significant efforts on the part of the Respondent to abate. The violation was abated once Sherrill ordered Nichelson down from the elevated position and Nichelson was re-instructed in the use of fall protection. P. Ex. 4. Respondent was not required to provide any additional belts or lanyards and was not required to make any modifications to the belt structure for miners to tie off fall protection. See Tr. 323; R. Ex. 13.

            When questioned by the undersigned, Inspector Sherrill stated that the basis for determining that the violation was extensive in nature was the fact that Nichelson was engaged in dangerous work on the inclined belt. Tr. 125. The Secretary’s brief provides no further insight as to the extent of the violation. P. Br. 17-18. The fact that Nichelson was performing a dangerous task, however, does not speak to the extent or scope of the violation. The degree of danger of the violative practice is a separate factor in the unwarrantable failure analysis, and thus should be examined independently of the extensiveness factor. Accordingly, on balance, I find that the extensiveness factor essentially is neutral in the unwarrantable failure analysis.

                        2)        The Duration of the Violative Practice

            The Commission has emphasized that the duration of a violative condition must be considered in the unwarrantable failure analysis. See, e.g., Windsor Coal Co., 21 FMSHRC 997, 1001-04 (Sept. 1999) (remanding for consideration of duration evidence of cited conditions). I conclude that the duration factor weighs against the finding of an unwarrantable failure.

            Nichelson was exposed to the dangerous condition for a brief period of time, perhaps seconds. While Nichelson testified that he had been on the belt for only five seconds, I do not find this to be a credible account of the time he spent attempting to dislodge the rock with the breaker bar. Tr. 329. Inspector Sherrill credibly testified that he had observed Nichelson on top of the belt for twenty to thirty seconds and estimated that the total time that it would take to undo the rock jam was approximately three minutes. Tr. 120-121. Even assuming a three-minute exposure, the duration of the violation was brief, albeit very dangerous.

                        3)        Whether Respondent Was Placed on Notice that Greater Efforts Were

                                    Necessary for Compliance with § 56.15005

            The Commission has stated that repeated, similar violations are relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with a standard. IO Coal, supra, 31 FMSHRC at 1353-55; Amax Coal Co., 19 FMSHRC 846, 851 (May 1997); see also Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001). The purpose of evaluating the number of past violations is to determine the degree to which those violations have “engendered in the operator a heightened awareness of a serious . . . problem.” San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007), citing Mid-Continent Res., Inc., 16 FMSHRC 1226, 1232 (June 1994). The Commission has also recognized that “past discussions with MSHA” about a problem “serve to put an operator on heightened scrutiny that it must increase its efforts to comply with the standard.” Id., citing Consolidation Coal, 23 FMSHRC at 595.

            Respondent’s Portable Plant #1 did not have any prior violations of the cited fall protection standard. Tr. 210; P. Ex. 13, pp. 3-4. From April 2009 through July 13, 2010, the mine received ten total citations during three inspections, none of which were designated as unwarrantable failures. P. Ex. 13, pp. 3-4. Inspector Sherrill candidly acknowledged that “based upon my experience with the Magruder Limestone Company, they’re a good company. They try hard to do the right things . . . .” Tr. 213-14. Given Respondent’s general history of compliance, I find that this factor weighs against an unwarrantable failure finding.

            In the circumstances of this case, I reject the Secretary’s contention that receipt of the Rules to Live By alone is sufficient to establish that MSHA informed Respondent that greater efforts were necessary for compliance with the fall protection standard. During the pre-inspection conference, the inspectors generally discussed with Stewart the mine’s violation history, the Rules to Live By, and the SLAM/SMART programs. Tr. 70. Inspector Sherrill testified that when reviewing the Rules to Live By, he only pointed out the fall protection standard, but did not go into details. Tr. 142. Given Respondent’s general history of compliance with the standard, and the apparent brevity of the Rules To Live By discussion, there was no opportunity for Sherrill to relate any particular standard to past conditions at the mine.

            Furthermore, the Rules to Live By documentation provided to Stewart appears to have been very basic. See P. Ex. 8. The Rules, exemplified by Petitioner’s Exhibit 8, are simply a listing of MSHA standards that are frequently cited in fatal accidents. They do not provide any information regarding best practices, safety guidance, or suggestions concerning what operators can do to achieve greater compliance with the listed standards. The Secretary did not provide any evidence that Respondent was provided with any further guidance from MSHA prior to the present inspection, other than a generic mailing that was sent to all mine operators in the state. Tr. 117-18.

            Finally, it is important to note that at the time of the inspection, the Rules to Live By program was still in its infancy. See Press Release, MSHA, MSHA Fatality Prevention Program Will Include Outreach, Enforcement (Feb. 2, 2010), http://www.msha.gov/MEDIA/PRESS/2010/

NR100202.pdf (announcing start to the Rules to Live By program only five months prior to the current inspection). Respondent held its last Part 46 annual refresher training only weeks after MSHA formally began the program. See R. Ex. 6. There is no evidence that anyone at Portable Plant No. 1 had been in violation of the Rules to Live By standards until the present inspection.

            Based on the above, I find that Respondent was never given actual notice that greater efforts were necessary to achieve compliance with the standard at issue. Accordingly, I find that this factor weighs against a finding of an unwarrantable failure.

                        4)        Whether the Violation Posed a High Degree of Danger

              The high degree of danger posed by a violation supports an unwarrantable failure finding. See, e.g., Beth Energy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992) (finding unwarrantable failure where unsaddled beams “presented a danger” to miners entering the area); Quinland Coals, 10 FMSHRC at 709 (finding unwarrantable failure where roof conditions were “highly dangerous”). For purposes of evaluating whether violative conditions pose a high degree of danger, it is often necessary to consider the same facts already considered as part of the gravity evaluation in an S&S analysis. See San Juan Coal, supra, 29 FMSHRC at 132-33 (Mar. 2007) (remanding because judge failed to apply S&S factual findings to danger factor for unwarrantable failure analysis).

            Respondent concedes that the fall protection violation was S&S. It is undisputed that Nichelson was standing on a rubber conveyor belt, ten feet off the ground, at a thirty degree gradient. Tr. 86. The belt was elevated on the sides because of the troughing idlers, which kept the rocks in the middle of the belt. Id. Nichelson was using a six-foot breaker bar to clear a rock jam by attempting to use leverage to dislodge or break up the rock bridge. Tr. 87. In addition to the aforementioned conditions that contribute to the hazard of falling off the conveyor belt, there is also a risk that someone could restart the plant. There were two miners at the plant with experience operating the plant controls: Stewart and Ron Butzlaff, a former plant operator. Tr. 339. Given the considerable hazards that might contribute to Nichelson tripping or losing his balance, in addition to the added risk that the conveyor may be inadvertently reenergized, I find that the failure to use fall protection was highly likely to result in an injury.

            As for the type of injury that may result, I find that the violation contributed to a fall hazard that was reasonably likely to result in fatal injuries. The ground below Nichelson’s position was muddy, but mostly composed of rock with small softball-sized limestone spillage. Tr. 86; see P. Ex. 7. Aside from the ladder used to access the top of the belt, there were no other tools, machinery, or other objects near the base of the belt support structure. Nichelson, however, was working with a breaker bar to dislodge the rock jam, and Sherrill credibly testified that if he fell, Nichelson could impale himself with the breaker bar. Tr. 102-04.

            As stated above, I find that Citation No. 6575266 was highly likely to result in an injury. The violation contributed to a hazard that could reasonably be expected to result in a miner’s death or permanent disability. Accordingly, the danger factor weighs in favor of an unwarrantable failure finding.

                        5)        The Operator’s Knowledge of the Existence of the Violation and Whether the Violation was Obvious

            An operator’s knowledge of the existence of a violation and whether the violation is obvious are important elements of an unwarrantable failure analysis. IO Coal, supra, 31 FMSHRC at 1353-55; Emery Mining Corp., 9 FMSHRC 1997, 2002 (Dec. 1987). The Commission has found that where an agent of the operator has knowledge or should have knowledge of a safety violation, such knowledge should be attributed to the operator. See Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000); Pocahontas Fuel Co., 8 IBMA 136, 147 (Sept. 1977), aff’d, 590 F.2d 95 (4th Cir. 1979). In addition, a mine supervisor or foreman is held to a high standard of care and the Commission has found that his involvement in a violation is an important factor in the unwarrantable failure analysis. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

            Neither party has suggested that Stewart had actual knowledge that Nichelson was going to violate the fall protection standard, nor that Stewart instructed Nichelson to attempt to clear the rock jam without following relevant safety procedures. Tr. 204-05. Sherrill testified that he found out about the fall protection violation before Respondent found out about it. Id. Further, apart from Stewart’s own past violations as a rank-and-file miner, there is little evidence to show that Stewart should have known of the violation, or expected Nichelson to disregard his instructions and training and violate safety protocols. As discussed in the negligence analysis, supra, Sherrill’s testimony supports the argument that mitigating factors were present with regard to the foreseeability of Nichelson’s actions.

            Additionally, the Secretary failed to establish that the condition was particularly obvious to Stewart, the only agent of the Respondent present on the day of the violation. It is clear from the pictures provided by the Secretary and the Respondent that the area accessed by Nichelson was not high in comparison with the other structures at the plant. P. Ex. 7; R. Ex. 9. As such, it is entirely possible that Nichelson’s position could have been obscured from view by the plant’s other structures. Further, Sherrill testified that Stewart was operating the loader at the time Nichelson climbed onto the belt and was unable to see Nichelson. Tr. 170. Stewart also testified that some parts of the plant were located on a hill, where the belt is not visible. Tr. 323. Given these facts, the Secretary has failed to establish that a reasonably attentive supervisor would have observed Nichelson’s brief time on the elevated conveyor belt.

            Accordingly, I find that the operator’s knowledge of the existence of the violation and the obviousness of the violation are both factors that weigh against an unwarrantable failure finding.

                        6)        The Operator’s Efforts in Abating the Violation

            An operator’s efforts to abate a violation are relevant to an unwarrantable failure determination. The level of priority that the operator places on abatement of the problem is relevant once an operator has been placed on notice of the problem. IO Coal, 31 FMSHRC at 1356, citing Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997). Having found that Respondent had no actual knowledge of the violation and that MSHA had not put Respondent on notice that greater efforts were needed for compliance, this factor weighs against an unwarrantable failure finding.

            C.        Conclusion Regarding the Unwarrantable Failure Factors

            I conclude that the Secretary has failed establish an unwarrantable failure for the fall protection violation. Citation No. 6575266 was of a very serious nature and placed Nichelson in a high degree of danger. I strongly concur with the parties’ stipulation that the fall protection violation was properly designated significant and substantial. Nichelson’s failure to don fall protection as described in Citation No. 6575266 was highly likely to result in an injury and there is sufficient evidence to show that such an injury was reasonably likely to be fatal.

            Despite the high risk of danger, however, the other unwarrantable factors are either neutral or weigh against an unwarrantable failure finding. The Secretary’s own witness testified that Stewart did not have knowledge of the violation and there was no evidence that Stewart should have expected Nichelson to violate safety protocols. Respondent was not placed on notice that greater efforts were needed to achieve compliance with the standard, and the violation was not obvious to Stewart given the location of the belt and the short duration of the hazard. Although the scope of the hazardous practice was limited in terms of area and the number of miners affected, Stewart’s testimony of past violations suggests that the violative practice may have been more extensive and signaled a possible culture of disregard for safety standards when miners were in a hurry. This is troubling and I take this into account in assessing a penalty for the violation. Nevertheless, I find that the totality of the factors weigh against a finding of unwarrantable failure for Citation No. 6575266.

VI. Penalty Assessment

            Section 110(i) of the Mine Act sets forth the following criteria to be considered in determining an appropriate civil penalty:

The operator's history of previous violations, the appropriateness of such 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 and violation.

            The Secretary has proposed a total penalty of $69,801 for the two unsettled violations that were litigated. The $52,500 proposed penalty for Citation No. 6575266 was specially assessed and thus did not reflect a penalty assessment under 30 C.F.R. § 100.3 criteria. Had the regular point-based assessment formula been applied, the Secretary would have proposed a penalty of about $18,271 for Citation No. 6575266. While a specially assessed penalty may have been appropriate given the danger posed by the hazard, the Secretary has failed to provide any evidence concerning the justification for special assessment. The Secretary did not provide the Narrative Findings for a Special Assessment at hearing, nor were the findings attached to the Petition for Assessment of Civil Penalty. Similarly, the Secretary’s sole witness, inspector Sherrill, did not offer any testimony regarding the appropriateness of the specially assessed proposed penalty. Furthermore, I have reversed the unwarrantable failure designation and vacated Order No. 6575267. In these circumstances, I decline to assess a penalty consistent with the special assessment formula. See generally, MSHA, Special Assessment Guidelines (2011), www.msha.gov/PROGRAMS/assess/SpecialAssess/SpecialAssessments2011.pdf.

            Although the Commission is not bound by the Secretary’s proposed penalty or the § 100.3 point scheme, I find that the regulations at least provide a helpful guide for assessing an appropriate penalty that can be applied consistently. Applying the 100.3 assessment formula to the findings above, Citation No. 6575266 would be assessed a penalty of $5,503.

            As set forth above, I have found that Citation No. 6575266 was a result of Respondent’s moderate negligence and was highly likely to result in an injury. The violation contributed to a hazard that could reasonably be expected to result in a miner’s death. Further, the parties have stipulated that the penalty will not affect the Respondent’s ability to remain in business. Respondent has a minimal violation history and the violations that were cited during the present inspection were abated rapidly in good faith. On the other hand, I find Stewart’s admission of past violations troubling and indicative of a past practice of disregarding fall protection when miners were in a hurry. In order to effectuate the deterrent purposes of the Act, I find that a penalty of $16,509 is appropriate under section 110(i) for Citation No. 6565266.

VII. Order

            WHEREFORE, the motion for approval of partial settlement, as set forth in footnote 1 above, is GRANTED. It is ORDERED that Citation 6575266 be MODIFIED to change the type of action from a section 104(d)(1) citation/order to a section 104(a) citation and to reduce the level of negligence from “high” to “moderate,” and that Order No. 6575267 be VACATED. It is ORDERED that Citation No. 6575268 be MODIFIED to reduce the likelihood of injury or illness from “reasonably likely” to “unlikely,” and to delete the significant and substantial designation. It is further ORDERED that the operator pay a total penalty of $22,702 for all settled and litigated citations, within thirty days of this order. See note 1, supra.

                                                                        /s/ Thomas P. McCarthy

                                                                        Thomas P. McCarthy

                                                                        Administrative Law Judge

Distribution:

Jeffery Leake, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5710

R. Lance Witcher, Esq., Ogletree, Deakins, Nash, Smoak, & Steward, P.C., 7700 Bonhomme Ave., Suite 650, St. Louis, MO 63105

/tjr