FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, D.C. 20001

July 17, 2012

        ORDER GRANTING IN PART AND DENYING IN PART

       SECRETARY’S MOTION FOR SUMMARY DECISION

AND

ORDER GRANTING RESPONDENT’S

MOTION FOR SUMMARY DECISION

Before: Judge Feldman

            This civil penalty proceeding concerns a Petition for the Assessment of Civil Penalty filed pursuant to section 110(a) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 820(a), by the Secretary of Labor against the Respondent, West Alabama Sand & Gravel, Inc. (“West Alabama”). The petition seeks to impose a civil penalty of $15,971.00 for an alleged violation of section 56.15005 of the Secretary’s mandatory safety regulations governing metal and nonmetal surface mines. 30 C.F.R. § 56.15005. This mandatory standard, in pertinent part, requires that “[s]afety belts and lines shall be worn when persons work where there is danger of falling.”

            I. Background

            The material facts in this matter are not in dispute. On July 1, 2009, Mine Safety and Health Administration (“MSHA”) Inspector Michael Evans conducted a regular biannual inspection of the West Alabama Sand and Gravel mine facility in Fayette, Alabama. While at the West Alabama mine site, Evans witnessed a driver for an independent trucking company who was situated on top of his haul truck, ten feet above the ground. The truck driver, Johnny Koger, was an employee of Denbar Transportation (“Denbar”). Koger was in the process of installing tarp in order to secure his load. He was not wearing a safety belt, lanyard, or any other type of fall protection while he was observed crawling and extending his body over the side of his truck. Clay Junkin, West Alabama’s Vice President, was present at the mine at the time Koger was observed by Evans.

            As a result of Evans’ observations, 104(d)(1) Citation No. 6511548, and contemporaneous imminent danger Order 6511547, were issued by Evans to Junkin citing a violation of the mandatory standard in section 56.15005. The imminent danger order has not been contested and is not a subject of this proceeding. Order No. 6511548 states:

A customer truck driver was observed climbing on top of the loaded trailer. The driver was not wearing a safety belt and lanyard or any other type of restraining device to prevent a fall to the ground below. The truck driver was on his knees pulling on tarp within inches of the side of the trailer. The truck driver was exposed to a fall of ten foot to ground level. Clay Junkin (Vice President) engaged in aggravated conduct constituting more than ordinary negligence by his statement of knowing this was a hazard, and allowing this practice to continue for several years. This violation is an unwarrantable failure to comply with a mandatory standard.

This violation is a factor cited in imminent danger order No. 6511547 issued 07/01/2009. Therefore, no abatement time was set.

            Although no abatement time was specified in view of the imminent danger order, the citation was abated by West Alabama’s posting of a sign that prohibited drivers from climbing on trucks. The cited violation was designated as significant and substantial (“S&S”). Junkin told Evans that truck drivers “have been climbing on the trucks since 1985.” Evans’ Addendum to Citation No. 6511548. West Alabama had never been cited for a failure of truck drivers to tie down during previous MSHA inspections. Although Junkin conceded that he believed the practice was hazardous, Junkin told Evans that “he couldn’t make truck drivers not climb [sic] on the trucks [-] that it was their truck.” Id. Evans responded that “[Junkin] was responsible for what is done or happens on mine property.” Id. As a result of Evans’ conversation with Junkin, the cited violation was attributed to an unwarrantable failure.

            Section 3(d) of the Mine Act defines an “operator” as “any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine.” 30 U.S.C. § 802(d). (Emphasis added). It is well settled that the Secretary has the unfettered discretion to cite an owner-operator of a mine, an independent contractor working on mine property, or both, for violations committed by a contractor. Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 152, 158 (D.C. Cir. 2006) rev’g Twentymile Coal Co., 27 FMSHRC 260 (Mar. 2005) (reversing the Commission’s decision that mine operators are not responsible for violations committed by contractors where such operators do not directly contribute to the violation or have significant control over the independent contractor’s activities).

            The Secretary filed a Motion for Summary Decision on October 4, 2011, seeking the affirmance of 104(d)(1) Citation No. 6511548 that characterized the cited violation as S&S and attributed the violation to an unwarrantable failure. The Secretary seeks the imposition of a $15,971.00 civil penalty.

            West Alabama opposed the Secretary’s motion on October 24, 2011. It does not dispute the fact of the violation or the significant and substantial designation. However, it opposes the size of the $15,971.00 proposed civil penalty that primarily is based on West Alabama’s alleged unwarrantable failure. I construe West Alabama’s opposition as a motion for summary decision on the unwarrantable issue.

            West Alabama is a small operator that has employed no more than eight employees during the last three years. Sec’y Resp. Br. at 4. West Alabama does not dispute the essential facts underlining the citation, namely, that Koger failed to tie down while positioned on top of the loaded haul truck. However, West Alabama, relying on Lime Mountain Co., 30 FMSHRC 1192 (Oct. 1998) (ALJ Manning), asserts that the proposed $15,971.00 civil penalty is “unreasonable and extreme” in light of prior Commission cases involving violations of section 56.15005. West Alabama Opp. at p. 4. In Lime Mountain, a truck driver for an independent contractor was observed on top of his trailer using a compressed air hose without wearing any fall protection. Consequently Lime Mountain was cited for a violation of section 56.15005 for which the Secretary proposed a civil penalty of $240. Id. at 1193. Judge Manning ultimately assessed a civil penalty of $150.00. Id. at 1197.

            During a conference call with the parties, West Alabama also relied on CEMEX Inc., 33 FMSHRC 1169 (May 2011) (ALJ Paez). CEMEX, a publicly traded company, had posted signs at entrances to its mine facility that contract drivers were required to use safety platforms to access the tops of tankers. CEMEX, 33 FMSHRC at 1171. Despite the written warnings, a contract truck driver was observed standing on top of his tractor-trailer tanker instead of using the required safety platforms. Id. Judge Paez assessed a civil penalty of $500.00 for the subject section 56.15005 violation. Id. at 1173.

            II. Disposition

            Disposition by summary decision is appropriate provided (1) the entire record establishes that there is no genuine issue as to any material fact; and (2) the moving party is entitled to summary decision as a matter of law. 29 C.F.R. § 2700.67(b). See Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). There is no dispute as to any issue of material fact with regard to the fact of the cited violation and the likelihood of serious injury.

            It is undisputed that Koger was positioned on top of his loaded haul truck in danger of falling ten feet to the ground without utilizing any fall protection. A violation is properly designated as S&S if it is reasonably likely that the hazard contributed to by the violation will result in an accident causing serious injury. Cement Division, National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981). West Alabama does not deny that it is reasonably likely that the continued practice of working on an uneven surface elevated ten feet above the ground will result in an accident involving a fall that is reasonably likely to result in serious injury. Consequently, the cited violation is properly designated as S&S.

            The remaining issue is the allegation of an unwarrantable failure. Unwarrantable failure is “aggravated conduct, constituting more than ordinary negligence . . . in relation to a violation of the Act.” Emery Mining, 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by conduct including “reckless disregard,” “intentional misconduct,” “indifference” or a “serious lack of reasonable care.” Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991). In resolving an unwarrantable failure issue, the Commission has noted that it is significant to determine whether the operator has been placed on notice that greater efforts are necessary for compliance. Enlow Fork Mining Co., 19 FMSHRC at 1, 5-6; Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984).

            Thus, the dispositive issue is whether Junkin’s asserted lack of awareness that West Alabama was responsible for contract employees should be viewed as a mitigating circumstance with respect to the alleged unwarrantable failure. Regarding actual knowledge, 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 mandatory standard. Peabody Coal, 14 FMSHRC at 1261. Significantly, there is no history of similar violations. Despite biannual MSHA inspections dating back to approximately 1985, the Secretary does not contend, and MSHA’s data retrieval system does not reflect, that West Alabama was ever cited for a fall protection violation of section 56.15005. Thus, there is no evidence of actual knowledge to refute Junkin’s asserted lack of awareness of West Alabama’s responsibility for the conduct of contract employees.

            Lacking actual notice, the focus shifts to the validity of Junkin’s claim that he believed that West Alabama was not responsible for contractor employee conduct. Examining the sincerity of Junkin’s claim requires considering whether it is reasonable and whether it has been made in good faith. This test contains the subjective element of whether Junkin’s claim can be viewed as an honest belief, as well as satisfaction of the objective requirement that Junkin’s belief is reasonable. I.O. Coal, 31 FMSHRC 1346, 1357-58 (Dec. 2009) (noting that a defense against an unwarrantable failure designation requires not only a finding of good faith but also a finding that the belief was reasonable under the circumstances); see also Bryce Dolan v. F & E Erection Co., 22 FMSHRC 171, 177 fn. 7, (Feb. 2000), citing Sec’y of Labor o/b/o Robinette v. United Castle Coal Co., 3 FMSHRC 803, 810 (Apr. 1981). The absence of a relevant history of citations issued for fall protection violations committed by contractor truck operators, who undoubtedly routinely secure loads at West Alabama’s mine facility, adequately supports a good faith claim. So too, the absence of relevant previous citations provides a reasonable basis for Junkin’s belief that West Alabama was not responsible for the acts of truck operators it did not employ on equipment it did not own.

            Thus, Junkin’s reasonable and apparent good faith belief, albeit wrong, that West Alabama was not responsible for Koger’s failure to use fall protection is an appropriate mitigating factor that reduces the degree of negligence under the threshold required for an unwarrantable failure. Consequently 104(d)(1) Citation No. 6511548 shall be modified to a 104(a) citation by deleting the unwarrantable failure charge to reflect that the degree of negligence attributable to the violation was no more than moderate.

            Turning to the remaining issue of the appropriate civil penalty, the Mine Act requires that, “[in assessing civil monetary penalties, the Commission [ALJ] shall consider” the following six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect of the operator’s ability to continue in business, [5] the gravity of the violations, and [6] the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

            With respect to the relevant violation history, West Alabama was issued 17 citations during the 24-month period from June 30, 2007, through June 30, 2009, the 24-month period preceding the subject citation. Sec’y Resp. Br, Gov. Ex. 7. Of these 17 citations 14 were designated as non-significant and substantial. Id. The penalty range proposed by the Secretary for each of the 17 citations was from $100.00 to $425.00. Id. Thus, it is clear that the history of violations is not an aggravating factor. West Alabama Sand is a relatively small operator, and, the civil penalty imposed in this matter will not affect its ability to continue in business. As noted above, the negligence attributed to the mine operator is no more than moderate and West Alabama has provided a sign to deter further violations by contract employees on its mine property. In consideration of the appropriate civil penalty criteria in section 110(i) of the Act, a civil penalty of $760.00 shall be imposed for 104(a) Citation No. 6511548.

ORDER

            In view of the above, the Secretary’s motion for summary decision on the fact of the violation and S&S IS GRANTED. West Alabama’s motion for summary decision with respect to the question of unwarrantable failure IS GRANTED. Consequently, 104(d)(1) Citation No. 6511548 is modified to a 104(a) citation to reflect that the citation was not the result of an unwarrantable failure.

            Consistent with the application of the penalty criteria to the facts of this case, IT IS ORDERED that West Alabama Sand shall pay a civil penalty of $760.00 within

40 days of the date of this decision. Upon timely payment of the $760.00 civil penalty, the captioned civil penalty IS DISMISSED.

                                                                                    /s/ Jerold Feldman

Jerold Feldman

                                                                                    Administrative Law Judge

Distribution: (Certified Mail)

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

Clatus Junkin, Esq., Pearson, Harrison, Junkin & Pate, LLC, 202 3^rd Street NE, P.O. Box 730, Fayette, AL 35555

/jel