FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W. SUITE 9500

WASHINGTON, DC 20001

TELEPHONE: 202-434-9980 / FAX: 202-434-9949

June 27, 2012

DECISION

Appearances:  Pamela F. Mucklow, Esq., U.S. Department of Labor, Denver, CO, on behalf of the Secretary

Brian P. Barger, Brady, Esq., Coyle & Schmidt, Ltd, Toledo, OH, on behalf of Stansley Miner Resources, Inc.

Before:            Judge David F. Barbour

            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 Stansley Mineral Resources, Inc. (“Stansley”) pursuant to sections 105 and 110, 30 U.S.C. §§ 815, 820, of the Federal Mine Safety and Health Act of 1977 (the “Mine Act”). 30 U.S.C. § 801, et seq. The Secretary seeks the assessment of a civil penalty in the amount of $2,000 for one violation of the Secretary’s mandatory safety standards for surface metal and nonmetal mines at Stansley’s Plant 311 (“Tecumseh” site), a sand and gravel processing facility located in Tecumseh, Michigan. The violation is alleged in Citation No. 6504341, which was issued pursuant to section 104(d)(1) of the Mine Act, 30 U.S.C. § 814(d)(1). The Secretary asserts that the operator violated 30 C.F.R. § 56.14107(a), that the violation was a significant and substantial contribution to a mine safety hazard (“S&S” violation) and was caused by Stansley’s unwarrantable failure to comply with the standard. Section 56.14107(a) requires that all moving machine parts be guarded against contact by a person. In answering the petition, the company argued that the violation was not due to its unwarrantable failure and its high negligence. The case was heard in Toledo, Ohio.

STIPULATIONS

The parties stipulated as follows:

1.         [Stansley] owns and operates Mine ID No. 20-03312, which is a surface sand and gravel mine located in Michigan.

2.         Stansley’s mining operations at Mine ID No. 20-03312 affect interstate commerce.

3.         Stansley’s operations at Mine ID No. 20-03312 are subject to the jurisdiction of the Mine Act.

4.         The Administrative Law Judge has jurisdiction in this matter pursuant to section 105 of the Mine Act.

5.         The individual whose signature appears in Block 22 of the citation at issue in this proceeding was acting in his official capacity as an authorized representative of the Secretary of Labor when the citation was issued.

6.         A true copy of the citation at issue in this proceeding was served on Stansley as required by the Mine Act.

7.         The total proposed penalty for the citation in this proceeding will not affect Stansley’s ability to continue in business.

8.         The R-17 Assessed Violation History Report which the Secretary has designated as an exhibit is an authentic copy and may be admitted as a business record of the Mine Safety and Health Administration.

9.         The Secretary stipulates that Stansley exercised good faith in terminating the citation issued in a timely manner.

10.       Citation [No.] 650433 [which was] issued [to] Stansley [at another of its facilities] for a violation of . . . [section] 56.14112(b) on November 1, 2010, was modified to non [S&S] before being accepted by Stansley.

Jt. Ex. 1.

THE TESTIMONY

SECRETARY’S WITNESS

            Christopher Veenstra is an MSHA inspector who works in the agency’s Lansing, Michigan office. Tr. 26. He began working for MSHA on June 17, 2009. Tr. 26. He received six months of classroom training and nine months of on-the-job training, during which time he traveled with journeyman inspectors. Tr. 27. He became an authorized representative of the Secretary in April 2010. Tr. 27. Before working for MSHA, Veenstra was a shipper and then an electrician for a sand a gravel company. Tr. 28. For three-and-a-half years as a shipper he loaded railcars and customer trucks using conveyor belts and mobile equipment. Tr. 30. He then worked as an electrician for 16 years, repairing and maintaining mechanical equipment and electrical circuits. Tr. 29.

            On November 8, 2010, at approximately 2:30 p.m., Veenstra arrived at Stansley’s Tecumseh site to conduct a regular inspection. Tr. 32. He reported to the scale house when he arrived and spoke with Donna Madigan, the scale clerk. He introduced himself, told her that he was at the site to conduct an inspection, and asked for Todd Crane, the site superintendent. Tr. 32. Crane was at the Clinton site, another sand and gravel mine that is owned and operated by Stansley, and where he is also the superintendent. Tr. 33.

            Veenstra told Donna Madigan that he would begin the inspection and that Crane was welcome to join him. Tr. 38. As soon as Veenstra walked out of the scale house and around a deposit of material, he encountered the McCloskey plant (“McCloskey plant” or “the plant”), which is the machinery at issue in this case. Tr. 40. He saw a miner, whom he later learned was Lyle “Rick” Reddick, a plant operator, shoveling close to the self-cleaning tail pulley of the plant’s oversized conveyor. Tr. 40. The tail pulley was not guarded, and Veenstra asked Reddick to back away carefully from the pulley. Tr. 41. Veenstra then questioned Reddick. Reddick told Veenstra that he had to shovel around the tail pulley every one to two hours. Tr. 41. Reddick also said that Crane knew about the lack of a guard on the tail pulley. Tr. 41-42. Crane arrived shortly thereafter. Tr. 57. Veenstra testified that when he pointed out the hazard to Crane, Crane “kind of dropped his head and said ‘I know, we were going to put a guard on that tomorrow.’” Tr. 58. Veenstra interpreted Crane’s response to mean that Crane already had knowledge of the fact that the tail pulley needed a guard. Tr. 74, 82; Gov’t Ex. 6.

            Veenstra described the tail pulley as completely unguarded and stated that it was very accessible to those working around it. Tr. 70. Veenstra estimated that from the bottom of the pulley to the ground measured about six inches and that from the center of the pulley to the ground measured about ten inches. Tr. 59. Reddick, while he was shoveling, was standing approximately three feet from the tail pulley. He was using a four-foot-long shovel. Tr. 44-46. The ground around the tail pulley is uneven, creating a trip hazard. Tr. 69. Veenstra explained that the material Reddick was cleaning was debris that fell from the oversized conveyor. Tr. 47. To prevent the pulley from being overwhelmed by the spillage, Reddick had to clean under, behind, and to the side of the tail pulley, bringing the shovel within inches of the pulley in-take area. Tr. 46-47. According to Veenstra, it is common for tail pulleys to spill and for miners to clean around tail pulleys. Tr. 49. The pulley was a fluted, rather than a smooth, pulley, so it had ridges that acted as points upon which tools or limbs could be caught. Tr. 69. In Veenstra’s experience, if a miner’s shovel contacted a tail pulley while the miner was cleaning, the miner could be pulled up into the pulley before he could let go of the shovel. Tr. 65-66.

            Veenstra testified that not only did miners clean around the unguarded tail pulley, but they had to get close to the tail pulley every 40 hours to manually grease the pulley’s bearings. There were no extended grease fittings to allow remote greasing of the bearings. Tr. 67. While Veenstra did not witness a miner greasing the bearings, he worried one would try to grease them while the plant was running. Tr. 67.

            Veenstra cited his experience, training, and MSHA-documented accident history when discussing the potential seriousness of the injury that could result from entanglement with the unguarded tail pulley. Tr. 60-66. Veenstra stated that such an injury was likely to be permanently disabling or fatal. An arm could be pulled into the pulley resulting in the loss of the limb, leaving the miner permanently disabled. Tr. 61. Likewise, a miner’s shovel could be caught in the pulley, pulling the miner up into the pulley, resulting in the miner’s death. Tr. 63-66; Gov’t Ex. 13.

            When issuing the citation, Veenstra found that it was reasonably likely a miner would become entangled in the pulley. Veenstra was concerned because the miner was shoveling very near the unguarded tail pulley. Tr. 66. Further, there were no extended grease fittings and a miner needed to regrease the tail pulley bearings every 40 hours. Tr. 66-67. He noted that the ground was uneven in the area, increasing the likelihood a miner would trip and fall onto the unguarded pulley. Tr. 68. In addition, and as previously mentioned, the pulley had catch points that made it even more dangerous than a smooth pulley. Tr. 69. The inspector maintained that the condition had existed for a week. Tr. 70. Reddick had to clean around the tail pulley every one to two hours. Tr. 70-71. Finally, the tail pulley was easily accessible in that there were no barriers blocking access to it. Tr. 71. Veenstra found that the violation was S&S because he believed an injury was reasonably likely to occur that would at least result in lost workdays. Tr. 71. Veenstra also identified the violation as being caused by Stansley’s high negligence and unwarrantable failure to comply with the standard. He believed that management knew or should have known of the condition (the condition was open and obvious) and that there were no circumstances mitigating Stansley’s negligence. 30 C.F.R. § 100.3(d); Tr. 72, 76.

COMPANY’S WITNESSES

            The company disagrees that the violation was S&S and was caused by its unwarrantable failure to comply with section 56.14107(a). It argues that the condition was not open and obvious and that the company was not on notice that having a guard on the tail pulley was required by the cited standard.

            Todd Crane has worked for Stansley for five years, the first year as a mechanic and the last four as a superintendent. Tr. 175. As the superintendent of the Clinton and Tecumseh sites, he is “in charge of the manpower, for safety, scheduling, production, maintenance.” Tr. 175. Also, he accompanies all inspectors on their visits. Tr. 176. Crane spends three to four days a week at the Tecumseh site. The rest of the time he is at the Clinton site. Tr. 175. As a result of the citation issued by Veenstra for the unguarded pulley, MSHA opened an inquiry to determine if mine officials should be charged with individual liability. During the inquiry an MSHA investigator interviewed Crane, who said that Reddick did the daily workplace examinations on the McCloskey plant and that when Crane went to the Tecumseh site, he always reviewed the workplace examination reports. Gov’t Ex. 10 at p. 3.

            Crane testified that on May 1, 2008, before putting the Tecumseh site into operation, Stansley requested a courtesy inspection (also known as a “compliance assistance visit”) from MSHA. Tr. 148, 177. Crane accompanied the inspector, David Barr, on the visit, which included the McCloskey plant. The inspector made no recommendations for enhancing compliance at the plant. Tr. 153, 177. It is unclear, however, whether the plant was operating during the inspection. Tr. 166. Two weeks after the courtesy visit, on May 13, 2008, the plant was in full production and another MSHA inspector came to the Tecumseh site to conduct a regular inspection. This inspection also included the McCloskey plant. Tr. 178. As with all inspections, Crane accompanied the inspector. Tr. 177. During the May 13 inspection the plant was processing top soil. Tr. 178. No citations resulted. Tr. 178. The plant was set up in the same location and in the same configuration during the May 13, 2008, and November 8, 2010, inspections. Tr. 166. It was processing the same material. Gov’t Ex. 9 at p. 3. In fact, between May 1, 2008, and November 8, 2010, no citation was issued for failing to guard the plant’s tail pulley. Tr. 152-53.

            Counter to Veenstra’s assertion that Crane knew about the tail pulley needing a guard, Crane testified that he had no such knowledge. He maintained that when Veenstra brought up the need for a guard on the tail pulley, he told Veenstra that the McCloskey plant did not come with a tail pulley guard, but that he would put one on it the next day. Tr. 180, 183. He further stated that none of his employees had ever told him that the tail pulley needed a guard. Tr. 183-84. In support of this statement, Reddick testified that when he was interviewed during MSHA’s individual liability investigation, he did not think that he told MSHA’s investigators that the tail pulley needed a guard. Gov’t Ex. 14 at p. 2; Tr. 146. Further, Chip Tokar, a Stansley official, agreed with Crane that the tail pulley on the plant did not need a guard. Tr. 184.

            When Veenstra asked how long the tail pulley had been in operation at this location without a guard, Crane stated one week or so. Tr. 58. Crane turned off the machine immediately when Veenstra pointed out the hazard. Tr. 180. He had a guard installed, thereby eliminating the hazard. See Gov’t Ex. 6.

THE ISSUES

            The operator admits that it violated section 56.14107(a). Tr. 23. It contests that the violation rose to the level of a 104(d)(1) citation under the Mine Act. 30 U.S.C. § 814(d)(1); Tr. 23, 232. Thus, the issues are (1) whether the violation was S&S and (2) whether the violation was an unwarrantable failure to comply with a mandatory safety standard. In view of the admitted violation of section 54.14107(a), also at issue is the amount of the civil penalty that must be assessed for the violation, taking into consideration the civil penalty criteria set forth in section 110(I) of the Act.

S&S AND GRAVITY

            An S&S violation is a violation “of such nature as could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). A violation is properly designated S&S “if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation, the Secretary must prove: (1) the underlying violation; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 3-4 (Jan. 1984) accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

            It is the third element of the S&S criteria that is the source of most controversies regarding S&S findings. The element is established only if the Secretary proves “a reasonable likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on the particular facts surrounding the violation and must be made in the context of continued normal mining operations. Texasgulf. Inc., 19 FMSHRC 1125 (Aug. 1985); U.S. Steel, 7 FMSHRC at 1130.

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

            For the reasons that follow, I conclude that Stansley committed an S&S violation. The company does not dispute that it violated section 56.14107(a), a mandatory safety standard requiring guarding to prevent contact with moving parts. This violation created a discrete safety hazard in that Reddick, or any other employee working around the tail pulley, could become entangled. The facts reveal that a miner working around the tail pulley to remove spillage uses a four-foot-long shovel and stands about three feet away from the tail pulley on uneven surfaces while he bends over, putting both the shovel and his hands close to the pulley to scrape the debris away from the tail pulley. I credit Veenstra’s testimony that if the shovel contacts the tail pulley while the miner is cleaning, the miner likely will be pulled into the pulley before he can react and let go of the shovel. Tr. 65-66. Veenstra’s experience and training added weight to his common sense testimony of the hazards involved. Moreover, I credit his testimony that a miner greasing the pulley bearings works dangerously close to the pulley due to the lack of extended grease fittings. Tr. 66-67. Veenstra’s belief that a miner could slip and fall into the unguarded pulley was reasonable given the uneven ground upon which the miner had to stand. Tr. 68.

            I further find that there was a reasonable likelihood that as mining continued the unguarded tail pulley would result in entanglement and serious injury. The testimony established that a miner’s shovel comes within inches of the pulley in-take area when the miner is cleaning and a miner has to shovel around the tail pulley every one to two hours. Tr. 41, 46, 70-71. Further, and as previously noted, the ground is uneven around the tail pulley, creating a trip hazard. Tr. 69. Adding to the likelihood of an injury is the fact that the tail pulley is a self-cleaning fluted pulley, rather than a smooth pulley. It has catch points that can readily snag an errant shovel or limb. Tr. 69. The tail pulley is easily accessible. Tr. 70. Moreover, the pulley has to be greased every 40 hours. Given the fact that a miner was cleaning around the pulley while it was operating, it is reasonable to assume a miner also would grease the bearings while the pulley is in motion. See Tr. 67. Finally, history and experience have documented that unguarded head or tail pulleys have resulted in serious or fatal injuries when miners work around them, and I credit the inspector’s and the Secretary’s assertions that entanglement with the tail pulley is likely to result in a miner’s permanent disability or death. Tr. 60-66. I find that the violation was S&S.

            I also find that given the likely effects of the injury resulting from the violation, the violation was very serious.

UNWARRANTABLE FAILURE AND NEGLIGENCE

            As noted previously, the citation was issued pursuant to section 104(d)(1) of the Mine Act. Such a citation is issued if a violation is both S&S and caused by the unwarrantable failure of the operator. I have found that the violation of section 56.14107(a) was S&S. I also find the violation was the result of the company’s unwarrantable failure.

            The term “unwarrantable failure” is defined as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Emery, 9 FMSHRC at 2203-04. Whether conduct is “aggravated” is determined by analyzing the facts and circumstances of the case and identifying whether any aggravating factors exist. Such factors include the length of time the violation existed, the extent of the violative condition, whether the operator was placed on notice that greater efforts were necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation was obvious and posed a high degree of danger, and the operator’s knowledge of the existence of the violation. Jim Walter Resources, Inc., 28 FMSHRC 579 (Aug. 2006). In practice, these factors are evaluated and weighed against factors mitigating an operator’s lack of care. See e.g. Excel Mining, LLC, 34 FMSHRC 99 (Jan. 2012) (ALJ Gill).

            I find first that the lack of a guard was open and obvious and posed a high degree of danger. The Commission has held that in analyzing whether a condition is obvious, it is necessary to look not only at what is visibly obvious, but also to consider what assumptions the operator should be making given the type, use, and location of the machinery. Coal River Mining, LLC, 32 FMSHRC 82, 94 (Jan. 2010). The tail pulley was completely unguarded. It was a fluted self-cleaning tail pulley, which as previously explained is a type of pulley known to be more dangerous than a smooth pulley. Tr. 69. Given the amount of spillage, an employee needed to regularly tend to the plant every one to two hours, removing debris so that the conveyors continued to work properly. Tr. 47-49, 66. The pulley was six to ten inches off the ground, Tr. 59, putting it in a prime position to come into contact with the shovel a miner would use to remove the debris. There also was a sign by the pulley indicated that its bearings needed to be greased every 40 hours. Tr. 67. To do the job, a miner had to place himself right by the unguarded tail pulley and apply the grease manually. Tr. 67. While there was no evidence presented that the miners at the Tecumseh site manually regreased the pulley while the plant was operating, the unguarded pulley was easily accessible, there were no extended fittings for non-manual regreasing, and there was no warning sign to turn off the plant before regreasing. See Gov’t Ex. 2. These factors convince me that it was reasonable for Stansley’s officials to assume miners would regularly work dangerously close to the pulley while the plant was operating. The company should have realized a guard was needed. The unguarded condition of the tail pulley was obviously a hazard given the amount and type of activity that the company could reasonably expect to go on around it.

            The testimony established that the plant had been in the same condition and production mode for at least a week, which, given the level of danger the hazard presented and the number of times a miner or miners worked around the hazard, was an extended period of time to allow the pulley to go unguarded. I therefore find that one week was ample time to notice and fix the hazard, especially since during that week Reddick conducted an inspection that included the plant at least once per shift, as required by 30 C.F.R. § 56.18002(a).

            Finally, and as noted, the violation was very dangerous. The fact that a miner was reasonably likely to be dismembered or killed as mining continued raised the level of care Stansley should have exhibited. Not guarding the pulley represented a very serious lack of care.

            I conclude that together these factors indicate that Stansley exhibited aggravated conduct constituting much more than ordinary negligence. In reaching this conclusion I recognize that Stansley abated the violation as soon as the inspector brought the condition to the attention of its superintendent. Crane immediately shut down the plant and quickly installed a guard over the tail pulley. Tr. 180. While this will be considered when a civil penalty is assessed, it does not mitigate Stansley’s aggravated lack of care. The fact remains that prior to being cited Stansley did nothing to decrease the danger of the hazard.

            Stansley contends that it was not on notice about the condition or that it needed to make efforts to comply with the standard. It points out that the lack of a guard was not cited before November 8, 2010. Tr. 152-53. The plant was operating in the same configuration on November 8, 2010 as it was during MSHA’s compliance assistance visit on May 1, 2008, and during MSHA’s first regular inspection on May 13, 2008. Tr. 149. Stansley notes that during the visit and inspection MSHA’s inspectors did not make any recommendations or issue any citations pertaining to the plant. Tr. 177, 178. Stansley asserts that it reasonably understood the McCloskey plant to be in compliance with all MSHA health and safety standards and that it had no reason to believe that it needed to make any adjustments to the operation of the plant. Tr. 229-31. Stansley emphasizes that it brought to Veenstra’s attention during the inspection, Tr. 81-82, 180, and to the Court’s attention during the hearing, that the plant did not come with a guard on the tail pulley when Stansley bought the plant from the factory. Tr. 145. However, it did come with guards covering other moving parts of the plant. For all of these reasons, Stansley argues that it could not have known that the tail pulley, unguarded, presented a hazard to those working around the equipment. Tr. 228.

            Assuming all arguments that Stansley asserts are true, Stansley still cannot prevail. The inquiry employed by the Commission is “whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2403, 2416 (Nov. 1990). The record more than confirms that Stansley should have installed a guard. Not only was the need for one glaringly obvious, but Stansley was on notice as to the importance of compliance. The week before November 10, 2010, Veenstra inspected the Clinton site. The inspection resulted in two citations issued for violations of section 56.14107(a). It also resulted in Veenstra discussing with Crane “the need to improve guarding.” Tr. 59. Crane should have drawn the logical conclusion that the company needed to intensify its efforts to comply with the standard. Despite this warning, Stansley did nothing.

            Similarly, Stansley’s argument that it should not be expected to add any guards to those supplied by the manufacturer is untenable. A manufacturer cannot be expected to anticipate all of the conditions under which its equipment will be used. Obviously, depending on the location and use of the McCloskey plant, different safety devices other than those installed by the manufacturer may be necessary. See Alan Lee Good, 23 FMSHRC 995, 1010 n. 1 (Sept. 2001). In any event, the responsibility for maintaining a safe and healthy environment is the operator’s, not the manufacturer’s. And, because a piece of machinery is not cited for violations during an inspection does not mean that the operator escapes responsibility for compliance. Mainline Rock & Ballast, Inc., 34 FMSHRC __ (Apr. 2012); 2012 WL 1111258 at *5 (Apr. 2012). See also, Mainline Rock & Ballast, Inc., 33 FMSHRC 307, 326 (Jan. 2011) (ALJ Moran) (holding that because MSHA identified moving parts that needed guarding does not mean that other moving parts do not need guarding, and that “[i]t is the operator’s, not MSHA’s, responsibility to identify such moving machine parts.”); D. Holcomb & Co., 33 FMSHRC 1435, 1440 (Jun. 2011) (ALJ Manning).

            For these reasons I find that evidence that the violation was due to aggravated conduct constituting more than ordinary negligence easily prevails over any evidence of mitigation, and that Veenstra was correct when he found that the violation was due to an unwarrantable failure.

            Further, given the visually obvious nature of the violation and the length of time the violation existed, I conclude that Veenstra was correct when he found that the violation was due to Stansley’s high negligence.

REMAINING CIVIL PENALTY CRITERIA

HISTORY OF PREVIOUS VIOLATIONS

            The Tecumseh site’s history of previous violations is reflected in a computer printout that shows that in the fifteen months prior to November 8, 2010, the company paid civil penalties for four violations. Gov’t Ex. 12 at 2. Three of the violations were assessed at $100 and the fourth violation was assessed at $392. I conclude from this that the company’s violation history is small.

SIZE

            The parties did not stipulate to the size of the mine, nor did any witness testify as to the size of the mine. Under 30 C.F.R. § 100.3(b), the size of a metal/non-metal mine and its controlling entity is measured by the annual number of hours worked. The annual number of hours worked at the Tecumseh mine is 7,208 and by the controlling entity 29,695. Ex. A. This is a small mine.

ABILITY TO CONTINUE IN BUSINESS

            The parties stipulated that the proposed penalty will not adversely affect the company’s ability to continue in business. Jt. Ex. 1.

GOOD FAITH ABATEMENT

            The parties agree that the alleged violation was abated in good faith and in a timely manner. Jt. Ex. 1.

CIVIL PENALTY ASSESSMENT

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

6504341                      11/8/10           56.14107(a)    $2,000

            I have found that the violation existed, that it was very serious, and that the negligence of the company was high. Stansley is a small operator. Its small history of previous violations and its timely abatement speak to a positive attitude toward compliance. From all that appears in the record, the violation cited on November 10, 2010, was an aberration. The proposed penalty is almost five times more than any previously assessed penalty. I view the proposal as excessive and assess a penalty of $1,000.

ORDER

            Within 40 days of the date of this decision, Stansley Mineral Resources, Inc. IS ORDERED to pay civil penalties totaling $1,000 for the violation of section 56.14107(a) set forth in Citation No. 6504341. Upon payment of the penalty, this proceeding IS DISMISSED.

                                                            /s/ David F. Barbour

                                                            David F. Barbour

                                                            Administrative Law Judge

Distribution:

Pamela F. Mucklow, Esq., U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202

Brian P. Barger, Brady, Esq., Coyle & Schmidt, Ltd, 4052 Holland-Sylvania Rd., Toledo, OH 63623