FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19^th Street, Suite 443

Denver, CO 80202-2500

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

June 21, 2012

SECRETARY OF LABOR,    MINE SAFETY AND HEALTH     ADMINISTRATION (MSHA),   Petitioner, v. MICHELS CORPORATION, Respondent.

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CIVIL PENALTY PROCEEDING Docket No. LAKE 2011-424-M A.C. No.: 47-02917-245462 Plant #6

Appearances:  Emelda Medrano, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois; Daniel Goyen, Conference Litigation Representative, Mine Safety & Health Administration, Duluth, Minnesota, for Petitioner; Kelli Taffora, Esq., Michels Corporation, Brownsville , Wisconsin for Respondent.

Before:             Judge Manning

DECISION

            This case is before me on a petition for assessment of civil penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against Michels Corporation (“Michels”) pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the “Mine Act”).  The parties introduced testimony and documentary evidence at a hearing held in Milwaukee, Wisconsin.  In lieu of filing post-hearing briefs, the parties presented oral argument at the hearing.  This case involves Citation No. 6502898 issued under section 104(a) of the Mine Act at Michels’ Plant #6.  Michels operates a limestone quarry and portable crusher in Dodge County, Wisconsin.  The mine blasts limestone from benches in the pit and then crushes the limestone.

I.   DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

On December 7, 2010, MSHA Inspector Daniel Hongisto issued Citation No. 6502898 under section 104(a) of the Mine Act for an alleged violation of 30 C.F.R. § 56.3200.  The citation alleges the following:

Loose, fractured rock had not been taken down from the face of the vertical limestone highwall prior to blasting personnel entering the area to load a pattern on the bench below it.  This highwall was estimated to be about 60’ in height.  Boosters and delays were . . .  out on the ground at the base of the highwall and an employee of the contractor was observed standing within a few feet of the highwall.  Another contractor was observed standing within a few feet of the highwall.  Another contractor employee was standing a safe distance away serving as a “spotter” should loose rock fall from the wall.  This condition exposes persons to serious injury from falling rock.

(Sec’y Ex. 2).  Inspector Hongisto determined that an injury resulting in lost workdays or restricted duty was reasonably likely to occur, that the violation was of a significant and substantial (“S&S”) nature, that one person would be affected, and that the violation was the result of moderate negligence on the part of the operator.  The Secretary has proposed a penalty of $100.00 for this alleged violation.

            A.        Summary of Testimony

Inspector Daniel Hongisto has worked for MSHA for approximately 15 years.  (Tr. 16).  He has participated in highwall training and approximately one third to one half of the mines he inspects have highwalls.  (Tr. 22-23).  Prior to his time with MSHA, Inspector Hongisto worked in the mining industry off and on from 1978 to 1990.  (Tr. 16-24).  While working in the mining industry, Inspector Hongisto was tasked with work as, among other things, a laborer, equipment operator, bull gang member, driller, scaler, blaster, roof bolter, ground support installer, and shift supervisor.  (Tr. 16-20).  While most of his formal mining industry experience was in underground mines, he did work in quarries at one point.  (Tr. 59-60).  His only experience working with limestone has been with MSHA.  (Tr. 60).  Inspector Hongisto received entry level highwall safety training at the agency’s mine safety academy, including training on how to identify loose or fractured rock.  (Tr. 61-62).

On December 7, 2010, Inspector Hongisto traveled to Michels’ Plant #6 to conduct a regular inspection.  (Tr. 24).  Inspector Hongisto testified that, when he arrived, the crushing plant was in operation.  (Tr. 26).  He observed a miner working on a bench at the toe of a 60-foot highwall and two other miners on the same bench.  (Tr, 27, 44, 58).  Inspector Hongisto later learned that the three miners were all employees of the blasting contractor, Orica USA .   (Tr. 58).  When Inspector Hongisto looked at the highwall he “could see that there was a lot of loose, fractured rock on it and that there had been a pattern of holes drilled underneath [it] . . . and that the blasting crew was preparing to load these holes to blast [the] bench out.” [1]  (Tr. 27).  Boosters and delays were lying on the ground at the base of the highwall.  (Tr. 27, 30).  Inspector Hongisto testified that he was not concerned about one particular rock on the highwall[2] but was concerned with “everything” about the highwall, including “the area of the highwall, the height of it and the area underneath it being about 40 feet long, that the [blasters] were going to be loading these holes, which is an extensive area, with cracked rock on the whole face.”  (Tr. 28, 38-39, 67-68).  He believed that the rock on the face was cracked, fractured, and not entirely tied into the wall.  (Tr. 62).  On cross-examination, Inspector Hongisto conceded that fractured rock is different from loose rock.  (Tr. 63).  However, in this instance he was sure that the rock was loose “based on the fact that this highwall had been blasted” and subsequent blasts would have occurred “that could loosen it.”  (Tr. 63).  He also noted that the wall was “exposed to weather conditions, rain and snow, freeze/thaw.”  (Tr. 63, 66).  He defined loose rock as rock that has the “potential to fall,” move, or dislodge.  (Tr. 66).  Nevertheless, on cross-examination, Inspector Hongisto acknowledged that he did not see any loose rock fall during the entire time that he was at the mine.  (Tr. 66).  Moreover, he made no attempt to dislodge, poke, or disturb a rock.  (Tr. 66-67).  Inspector Hongisto testified that the area was not barricaded and there were no signs to warn people of the danger presented by the unscaled highwall that the blasters had been working under.  (Tr. 44, 45).  He was not concerned that the whole wall would fail.  (Tr. 43).  Inspector Hongisto testified that he had not inspected any highwalls at this quarry prior to the subject inspection and admitted that he was not a geologist or engineer.  (Tr. 58-59).

Inspector Hongisto testified that he took a number of pictures of the cited condition.  (Tr. 31).  He explained that Sec’y Ex. 3 depicts the upper portion of the highwall, which had a large rock that was of concern, as well as loose crumbling rock and cracks in the highwall face directly above the area where the miners had been working below.  (Tr. 31-32, 64-65).  Sec’y Exs. 4 and 5 show the blasting materials that were laid out on the ground and drill cuttings from the holes that were to be used for blasting.  (Tr. 32-38).  Sec’y Exs. 4, 6, and 7 each show the fractures on the face of the wall.  (Tr. 33, 38-40).  Sec’y Ex. 6 shows the upper portion of the highwall that was above the bench area where the drillers and blasters had worked, were working, and would continue to be working.  (Tr. 38).  Based on his experience and judgment, Inspector Hongisto testified that he could tell that the rock on the face shown in Sec’y Ex. 6 was loose.  (Tr. 67).  He explained that, from where he took the pictures and conducted the inspection, he could not tell whether the boulder at the top of the wall to the left in Sec’y Ex. 6 was on solid ground or if it was part of a berm that was set back.  (Tr. 68).  The rock at the top of the wall on the right in Sec’y Ex. 6 was a concern, but he did not feel the need to go to the top of the wall to inspect it and, instead, only viewed it from 60 feet below.  (Tr. 68-69).[3]

Inspector Hongisto concluded that Michels, as the mine operator, was responsible for the safety of all people, including contractors, involved in the mining process.  (Tr. 44).  Based on his observations and experience, he issued Citation No. 6502898.  (Tr. 29). 

Inspector Hongisto allowed the contractors to resume blasting preparation roughly 35 feet from the highwall.  (Tr. 52).  Inspector Hongisto terminated the citation the following day once he was comfortable that no one would work in the subject area.  (Tr. 53).  At the hearing, when told that a Michels employee had broken a backhoe while removing the large rock at the top of the highwall on the right hand side, Inspector Hongisto stated that he did not believe it and, if true, the operator must not have been a very good backhoe operator.  (Tr. 69).  Inspector Hongisto admitted that he was not present when the rock was removed.  (Tr. 70). 

Inspector Hongisto did not travel to the top of the highwall because, according to him, there was no reason to.  (Tr. 41, 68).  He was adamant that his findings were not based on any specific rock, but he did take note of the large rock that was at the top of the highwall.  (Tr. 41).  After the citation was issued, Michels sent MSHA a photograph that was taken at the top of the highwall.  (Tr. 41; Sec’y Ex. 8).  At the hearing, Inspector Hongisto testified that the picture showed loose rock and a backbreak at the top of the highwall.  (Tr. 42).  According to Inspector Hongisto, a backbreak occurs when back pressure is applied to the face of the highwall during blasting.  (Tr. 42-43).  The back pressure results in fracturing of the face.  (Tr. 43).  Inspector Hongisto did not believe that the boulders represented in Sec’y Ex. 8 were the same as those that he identified in Sec’y Ex. 6, but he could not be certain.  (Tr. 71). 

Inspector Hongisto determined that an injury was reasonably likely to occur based on the extent of the area affected, the amount of loose rock on the highwall, and the contractor’s use of a spotter which, according to Inspector Hongisto, indicated that the miners were not entirely comfortable working under the highwall.  (Tr. 46, 47).  The miners had been in the area for some time, but the blast was not near completion.  (Tr. 46).  While some drilling had been completed, the blasting materials had not been loaded.  (Tr. 46).  Inspector Hongisto determined that any injury suffered was likely to result in lost workdays or restricted duty.  (Tr. 47).  He based this determination on his observation that the loose material on the wall was small and he “didn’t have a single concern about one large rock or he would have marked it ‘Fatal.’ ” (Tr. 47).  Inspector Hongisto was not concerned about a total failure of the highwall or a large section of the wall.  (Tr. 48).  Rather, he was worried that one person would get struck by falling rock.  (Tr. 48).  Accordingly, he determined that only one miner would be affected.  (Tr. 48).  In light of his findings on the likelihood and type of injury, and based on his observations and experience, Inspector Hongisto designated the violation as S&S.  (Tr. 48-49).

Inspector Hongisto determined that Michels had acted with moderate negligence.  (Tr. 49).  According to Inspector Hongisto, the condition was obvious and extensive and should have been seen.  (Tr. 49).  The entire 60-foot height and 40-foot width of the wall had not been scraped and loose material had not been taken down before people were permitted to travel under it.  (Tr. 50).  Inspector Hongisto cited Orica, the blasting contractor who was working in the area, for a violation of the same standard.  (Tr. 50-51).  Joe Schmitt, the crusher foreman for Michels, was nearby and the condition would have been in full view for him to see.  (Tr. 50).  There were some mitigating factors.  (Tr. 49).  Jason Schmidt, Michels safety coordinator, told Inspector Hongisto that he was not aware that the contractor’s employees were going to be working right at the toe of the highwall.  (Tr. 49, 53).  Moreover, Schmidt told Inspector Hongisto that Michels had hired Orica based on its expertise in this field and he expected its employees to work in a safe manner.  (Tr. 49).

Jason Schmidt testified on behalf of Michels.  Schmidt has been with Michels for 15 years and is the project and safety coordinator for the company’s materials division.  (Tr. 78).  Prior to holding his current position, Schmidt worked with the company as a truck driver, equipment operator, and foreman.  (Tr. 78).  In his current role as safety coordinator he does site inspections, oversees the foremen, and is in charge of safety for the division.  (Tr. 79-81).  During his inspections he checks the sites, including the highwalls, to make sure there are no hazards.  (Tr. 81).  He trusts the drilling and blasting contractors, who have 20 to 30 years of experience, to do their jobs safely and notify Michels if something is unsafe.  (Tr. 81-82).  Schmidt testified that if he or anyone else at the mine sees a hazard, they correct it right away.  (Tr. 94).  If an area is unsafe, the mine will correct the unsafe condition before allowing anyone into the area.  (Tr. 94, 95).  Schmidt acknowledged that he is not a geologist or engineer.  (Tr. 97-98).

Schmidt testified that the materials division employees participate in an eight-hour annual safety refresher course that addresses highwall safety.  (Tr. 83-84).  The course emphasizes that, if anything is unsafe, looks like a problem, or if loose rock is present, then the miners should erect berms to keep traffic out of the dangerous area.  (Tr. 85).  In addition to the annual training, the mine also holds weekly “tailgate meetings” during which highwall safety is always discussed and daily or weekly task-specific training depending on what type of work will be conducted.  (Tr. 85-86).  Schmidt explained that the mine monitors the highwall daily and that special attention is given when there are weather changes, such as freezing and thawing that could impact the wall.   (Tr. 86).  According to Schmidt, in all of the time he has spent in the area of this mine, he has never seen a rock fall where people were working.  (Tr. 86-87).  While the highwall is constantly changing, the miners are trained to watch for hazards.  (Tr. 87).  He explained that this particular highwall does not have a lot of pockets or soft spots and there are no natural seams where the wall could collapse or pull apart.  (Tr. 87).

Schmidt testified that, on the day the citation was issued, he received a call that MSHA was at the site to do an inspection, so he traveled to the mine.  (Tr. 98-99).  When he arrived, he had no concerns about the highwall.  (Tr. 98).  He acknowledged that he did not actually see the contractor’s employees in the area of alleged exposure.  (Tr. 99).  He did not believe that there was loose rock that created a hazard to the men working below the highwall.  (Tr. 98).  If there had been loose rock, or if the contractor’s employees felt that the area was unsafe, then work would not have been performed until the area was made safe.  (Tr. 98).

Schmidt traveled to the top of the highwall to observe it both before and after the citation was issued.  (Tr.  89). The top was stripped and bermed off to prevent travel to the edge.  (Tr. 88-89).  While Schmidt was at the top, he took a photograph of the highwall from that position.  (Tr. 88; Sec’y Ex. 8).  He was not aware of any changes made to the highwall between the time the citation was issued and when he took the photographs.  (Tr. 97).  At the hearing, Schmidt was able to identify the two large rocks in the photograph that the inspector had identified as concerns in Sec’y Ex. 6.  (Tr. 90).  He explained that the rock on the left was part of the berm and was set back from the edge of the top of the highwall “a couple feet.”  (Tr. 89-90; Sec’y Exs. 6 and 8).  With regard to the rock on the right, Schmidt testified that there were no cracks or fissures, and the rock was not loose from what he could tell.  (Tr. 90; Sec’y Exs. 6 and 8).  Schmidt testified that he did not see loose rock on the highwall and thought that the rock on the wall was sound and was not going to be moving.  (Tr. 95, 100).  The subject area had been blasted approximately six months prior, and the operator would have taken down any hazards.  (Tr. 100).  The highwall had never been scraped before this citation was issued.  (Tr. 100).

Joe Schmitt testified on behalf of Michels.  Schmitt has been at Michels for approximately 20 years and is a foreman responsible for operation and maintenance of a portable crushing plant, as well as being in charge of the pit.  (Tr. 104).  He is also responsible for the safety of the site.  (Tr. 105, 111).  As a foreman, he is part of Michels’ management.  (Tr. 110). 

Schmitt explained that as soon as he drives into the pit each day he looks for any conditions that may have changed from the day before.  (Tr. 150).  He testified that there had been 15 to 20 blasts in the subject area over the course of its existence.  (Tr. 106).  The area consists of two benches, both roughly 32 feet in height.  (TR. 109).  Other than during blasting operations, Schmitt has not observed rock falling from a highwall in the pit.  (Tr. 106).  To his knowledge, the wall had never been scraped or scaled prior to the issuance of the subject citation.  (Tr. 111).  Schmitt testified that he was aware that, on the day the citation was issued, the contractor was working at the toe of the highwall.  (Tr. 108).  However, there were no ground conditions that created a hazard and he had no concerns about the contractor working in the area.  (Tr. 108, 110, 116).  Jason Schmidt was Schmitt’s immediate supervisor on the day the citation was issued.  (Tr. 110).

Schmitt testified that the highwall, and in particular the large rock at the top right of the picture labeled Sec’y Ex. 7, had been in the same state for six months.   (Tr. 106-107).  Schmitt testified that he traveled to the top of the highwall and found that there were no backbreaks or fissures along the rock.  (Tr. 107).  He was present when the rock was later removed with a backhoe that was moved to the top of the highwall.  (Tr. 107, 112).  After trying to knock the rock loose by pounding on it with the backhoe, Dean Groth, the backhoe operator, was finally able to dislodge it by reaching underneath the rock with the bucket and picking it up.  (Tr. 107, 111-112).  According to Schmitt, the backhoe can reach its bucket out approximately 25 to 30 feet and, at the time it was removing the subject rock, it was approximately 10 to 15 feet away from the edge of the top of the highwall and was able to reach 8 to 10 feet down from the top of the highwall.  (Tr. 110, 113-114).  The rock was not loose before the backhoe started working on it.  (Tr. 107).

Dean Groth testified on behalf of Michels.  Groth has been at Michels for six years and is an equipment operator.  (Tr. 117).  He received safety training at Michels, including equipment operation and highwall safety training.  (Tr. 117).  Groth was responsible for operating the backhoe and was charged with the task of knocking down the large rock circled in Sec’y Ex. 7 after the inspector issued the citation.  (Tr. 117-119).  Groth testified that the rock “wasn’t loose [and] . . . [i]t took some effort to get it out.”  (Tr. 118).  He initially tried to bang on the rock with the backhoe, but ended up having to use the bucket, which can reach 10 to 15 feet down the wall, to reach underneath the rock and peel it up in order to knock it down.  (Tr. 118).  Groth testified that as he was trying to remove this rock, he “ripped the bucket apart . . . [t]ore the metal plate that holds it all together.”  (Tr. 118).  According to Groth, the rock was solid.  (Tr. 118-119).  Moreover, he saw no conditions that concerned him, and saw no hazard on the highwall.  (Tr. 119).  Groth testified that he tried to scrape the wall with the backhoe after the citation was issued, but was unable to find any loose rock.  (Tr. 120).  He had to really “work at it” to bring any rock down.  Id.  Groth acknowledged that he is not an engineer or geologist.  (Tr. 121).

Bruce Konkle testified on behalf of Michels.  Konkle is an employee of Orica USA, the blasting contractor that was working at the mine at the time the citation was issued.  (Tr. 124-125).  He has been with Orica for 25 years and has worked next to numerous highwalls.  (Tr. 130).  In order to evaluate the stability of the highwall Orica conducts a visual examination of the wall, looks for rocks that could fall, and takes into consideration any weather of note (e.g., freezing, thawing, and rain).  (Tr. 127).  Konkle believed that the temperature was below zero at the mine the day the citation was issued.  (Tr. 132).  Konkle explained that Orica does not conduct blasting if there are safety concerns but, after surveying the blasting area at this mine and having a safety meeting, he had no concerns about the highwall that day.  (Tr. 125, 127, 130).  Had he noticed anything dangerous, he would have told Jason Schmidt or the quarry foreman.  (Tr. 131).  He did not observe loose rock on the highwall.  (Tr. 125, 134).  Konkle had blasted at the mine previously and noticed no change in the highwall since that time.  (Tr. 128).  He acknowledged that he is not an engineer or geologist.  (Tr. 129). 

            B.        Summary of the Parties’ Arguments

1.       Secretary of Labor

The Secretary argues that Citation No. 6502898 should be affirmed as issued.  (Tr. 136).  The issuing inspector, who has a combined 30 years of experience as a miner and MSHA employee, credibly testified that he observed miners standing at the toe of a 60-foot highwall that had cracked and fractured rock on its face.   (Tr. 136).  The highwall had not been scaled and presented a hazard that was reasonably likely to contribute to a serious injury.  (Tr.  137).  “An experienced [mine inspector’s] opinion that a hazard exists is entitled to substantial weight.”  (Tr. 137 citing Twentymile Coal Co., 33 FMSHRC 1885 (Aug. 2011) (ALJ)).

Commission judges, including this court, have affirmed S&S violations of Section 56.3200 where the presence of loose, overhanging and cracked material, and other dangerous conditions were present on a highwall above an area where miners worked.  (Tr. 139-140 citing Lakeview Rock Products, 34 FMSHRC 244 (Jan. 2012) (ALJ), Connolly- Pacific Co., 33 FMSHRC 2270 (Sept. 2011) (ALJ), Richard E. Seiffert Resources, 23 FMSHRC 426 (Apr. 2001) (ALJ), and Summit Inc., 19 FMSHRC 1326 (July 1997) (ALJ)).  Further, this court has affirmed a violation of section 56.3200 where loose rock and unconsolidated material were found near the top of a highwall.  (Tr. 141-142 citing Lehigh Southwest Cement Co., 33 FMSHRC 340 (Feb. 2011) (ALJ)).  In Lehigh the court determined that an injury was not reasonably likely to occur because workers were not likely to enter the hazardous area prior to the completion of scaling of the highwall, which had already begun.  Id.  In the case at hand, scaling was not being utilized and workers were exposed to the hazard.  Id. 

2.       Michels Corporation

Michels argues that loose and/or falling rock was never observed by Respondent, Respondent’s contractor, or the inspector.  (Tr. 143).  Michels does not dispute that, had loose material been present, it would have presented a hazard.  (Tr. 143).  Nevertheless, no such material was present on the highwall.  (Tr. 143).  The horizontal lines and fractures in the rock on the highwall do not, by themselves, create a hazard.  (Tr. 143).  The inspector never traveled to the top to evaluate the condition of the highwall, and the Secretary failed to present any specific evidence regarding the “dimensions of the fractures or anything along those lines” that could potentially satisfy her burden of proof.  (Tr. 143-144).  Moreover, the stability of the highwall was evident when the Respondent’s backhoe bucket broke during the equipment operator’s labored attempt to knock down one of the rocks observed by the inspector.  (Tr. 143-144).

Michels does not dispute the strict liability nature of the Mine Act.  (Tr. 143-144).  It agrees that, as the mine operator, it is responsible for the safety of all persons at the mine site.   (Tr. 143-144).  However, in this particular case, MSHA has failed to prove that a hazard existed, as required by the cited standard, and, as such, the citation should be vacated.  (Tr. 144).

            C.        Analysis of the Issues

The Secretary alleges a violation of Section 56.3200, which requires the following:

Ground conditions that create a hazard to persons shall be taken down or supported before other work or travel is permitted in the affected area. Until corrective work is completed, the area shall be posted with a warning against entry and, when left unattended, a barrier shall be installed to impede unauthorized entry.

30 C.F.R. § 56.3200.  “The Mine Act imposes on the Secretary the burden of proving each alleged violation by a preponderance of the credible evidence.” In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995), aff'd sub nom. Sec'y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998) (quoting Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989).  In order for the Secretary to satisfy her burden, she must first establish by a preponderance of the credible evidence that the ground conditions present on the highwall created a hazard.  For the reasons set forth below, I find that the Secretary did not establish this fundamental element of the cited standard and, accordingly, I vacate the citation.

It is undisputed that the face of the highwall contained fractured rock and that miners were working at the toe of the wall.  However, the testimony of the parties conflicts regarding whether the condition of the highwall presented a hazard to those miners working below it.  The Secretary asserts that fractured rock was loose and had the potential to fall, thereby creating a hazard for the miners working below.  Respondent asserts that the face of the highwall, despite being fractured, was stable, contained no loose rock and, consequently, did not present a hazard. 

I find that the preponderance of the evidence demonstrates that the highwall did not present a hazard to the miners working below.  Neither the inspector, who was at the mine for two days, nor any of Michels’ witnesses, who had been at the mine for far longer than two days, observed rock fall from the highwall.  Inspector Hongisto testified that his determination that the rock was loose and presented a hazard was based, at least in part, on his experience and the wall’s exposure to changing weather conditions.  While Inspector Hongisto may have been familiar with the operator, he had never inspected this or any other highwall at the subject quarry prior to this inspection.  Highwall stability is a localized condition.  Schmidt explained that the geologic makeup of this particular highwall did not lend itself to falling material, collapse, or the pulling apart of the rock.  There were not a lot of pockets, soft spots, or large natural seams along the highwall.  It is significant that Groth testified that when he tried to scale down the highwall with the backhoe after the citation was issued, he had a difficult time bringing down any loose rock.  Moreover, Konkle testified that the temperature at the mine had been below freezing for some time, which would seem to indicate that the wall was not subject to a freeze/thaw cycle, or other changing weather conditions, at that time.  I credit the testimony of both Schmidt and Konkle that, had the wall been subject to changing weather conditions at the time, the mine and blasting contractor would have paid additional attention to the condition of the wall and would not have worked under it if a hazard were present. 

I find that this particular mine operator, as well as the blasting contractor, were in a far better position to understand the local geology and its effect on the stability of the highwall.  Michels’ witnesses, unlike Inspector Hongisto, were each familiar with the highwall and credibly testified that the wall was stable at the time the citation was issued and had been stable for some time.  This was the first time that Inspector Hongisto had inspected the walls of this quarry and, at least based on his testimony, he did nothing more than a visual inspection of 60 foot highwall from the base of the wall.  He did not travel to the top of the wall, yet he determined that rocks on the face at the top of the wall, and in particular a large rock at the top of the wall on the right hand side of the area, presented a hazard.  Inspector Hongisto was not present when the rock large rock was removed.  I credit the testimony of Michels’ witnesses that the rock at the top of the highwall on the right-hand side was not loose and required a great deal of effort on the part of the backhoe operator to bring down.  Inspector Hongisto also noted a large rock at the top of the highwall on the left-hand side.  He testified that, from below the highwall, he could not be sure whether the large rock on the left was part of the berm atop the wall.  Inspector Hongisto did not travel to the top of the wall to investigate further.  I credit Schmidt’s testimony that the large rock on the left was set back from the edge of the highwall and was part of a berm.  Schmidt did travel to the top of the wall, both before and after the citation was issued, and credibly testified that the rock was part of the berm that was set back from the edge of the wall.  Given the rock’s location, it did not present a hazard.

Highwall stability cannot be evaluated in a “one-size-fits-all” manner.  Conditions may, and often do, vary from quarry to quarry, bench to bench, and wall to wall.  The localized nature of the conditions of each wall must be taken into consideration when determining whether the ground conditions present a hazard.  I am not holding that the Secretary must present expert testimony about the condition of a highwall in order to establish a violation.  See e.g., Richard E. Sieffert Resources, 23 FMSHRC 426 (Apr. 2001) (ALJ) and  Summit Inc., 19 FMSHRC 1326 (July 1997) (ALJ).  Rather, in this particular instance, I find that, based on the testimony and documentary evidence before me, the inspector did not conduct a thorough enough investigation to support his determination that there was loose rock on the highwall that presented a hazard.  Other Commission judges have reached similar conclusions.  See e.g. Cargill Deicing, 32 FMSHRC 1848 (Dec. 2010) (ALJ).

I recognize that the opinions of MSHA inspectors regarding the presence of hazards are entitled to weight by the Commission’s judges.  In Hanson Aggregates, 28 FMSHRC 1049 (Nov. 2006), Judge Zielinski held that an operator’s credible testimony that a highwall was stable and that no rock had fallen from the highwall for some time, outweighed the Secretary’s evidence that “tended to establish only that, in theory, detached rocks had the potential to move and might eventually fall at some point in time.”  Id. at 1055.  While I am not bound by the decisions of other Commission Judges, I find Judge Zielinski’s statement instructive.  Here, there is no dispute that there were fractures on the face of the highwall.  However, given the credible testimony of Michel’s witnesses regarding the stability of the highwall, I find that a preponderance of the credible evidence does not support Inspector Hongisto’s assertion that the rock was loose and created a hazard.

II.   ORDER

            For the reasons set forth above, Citation No. 6502898 is hereby VACATED and this proceeding is DISMISSED.

                                                                                    /s/ Richard W. Manning

                                                                                    Richard W. Manning

                                                                                    Administrative Law Judge

Distribution:

Emelda Medrano, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., Suite 844, Chicago, Illinois 60604

Daniel Goyen, Conference Litigation Representative, Mine Safety & Health Administration, U.S. Department of Labor, 515 West 1^st St., Room 333, Duluth, Minnesota 55804

Kelli Taffora, Esq., Michels Corporation, P.O. Box 128, 817 West Main Street, Brownsville, Wisconsin 53006

RWM