30 C.F.R. § 77.1000. Ex. P-19. The order was terminated after the Amended Ground Control Plan was updated.

1. Fact of Violation

 

            In order to establish a violation of one of her mandatory safety standards, the Secretary must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)). The Commission has recognized that section 77.1000 requires the operator of a surface mine to establish and follow a ground control plan. RNS Servs., Inc., 18 FMSHRC 523 n.1 (Apr. 1996).

 

            The Secretary argues that the Plan permits only two methods of extracting coal refuse: excavation in successive horizontal lifts with a maximum elevation differential of 12 feet, or excavation down the face of the existing slope from top to toe. Sec’y Br. at 11. According to the Secretary, when Preservati was extracting refuse from mid-pile, with un-consolidated material situated above him, Extra Energy was mining in violation of the Plan and destabilizing the pile.

 

            Arguing a contrary position, Extra Energy maintains that the standard does not apply because the mine does not have “highwalls,” and the operator was not actually mining, but was, in fact, in the process of constructing the access road. Resp. Br. at 6, 16-17. Therefore, according to Extra Energy, it was not violating the Plan.

 

            MSHA Inspector Andrew Sedlock, a surface mine specialist with extensive experience evaluating and approving ground control plans required by MSHA under section 77.1000, testified as the Secretary’s expert witness. Tr. 178-181, 207. He has also drafted several dozen ground control plans for a surface mine operator. Tr. 184-85. Sedlock explained that removing material from the toe in advance of upper level material reduces the stability of the working face, making it highly likely that hundreds of tons of material will break loose and slide down onto the work area, engulfing any miner working beneath the slope. Tr. 212, 219. Furthermore, Sedlock stated that the operator failed to re-slope the material to a 2H:1V angle (2 horizontal:1 vertical slope required by the Plan), failed to re-slope the 40' by 40' slip in order to stabilize the area, and left walls of material higher than the cab heights of the haul truck and excavator. Tr. 221-22. He determined that removal of material 100 feet down the slope reduced the stability of the pile, and that the extensive slip at the base demonstrated its instability. Tr. 229-230, 234, 238-240.

 

            The president of Extra Energy, Steve Haynes, testified on behalf of the operator. He testified that he had observed nothing on the access road that was likely to cause an injury or fatality, and that there were no highwalls along the access road. Tr. 391, 403-04. Regarding slope stability, Haynes was unable to identify the natural angle of repose or the meaning of “2H:1V.” Tr. 405-08. In Haynes’ opinion, Extra Energy did not violate the standard because the Plan allowed for skipping areas that the operator deemed unfeasible to mine. Tr. 402.

 

            Foreman Chuck Preservati also testified for Extra Energy. At the time of the alleged violations, Preservati had been the surface foreman at the mine for about eight years. Tr. 422-23. Preservati testified that Extra Energy was building the access road, rather than mining. Tr. 427. Furthermore, he stated that the mine had no highwalls, and that the un-sloped material sat at the natural angle of repose. Tr. 428.

 

            As a preliminary matter, I find that Extra Energy was mining rather than building the access road because Meadows’ and Billups’ observations of Preservati using the excavator to load the haul truck with refuse material are augmented by Billups’ inspection notes of March 13, which report Preservati as having stated that Extra Energy elected to remove material from mid-pile because there was too much rock in the top to make money. Ex. 18, p. 13.

 

            While neither the Act nor the regulations define the term “highwall,” I need not decide whether the cited condition constituted a highwall since the plain, unambiguous language of the standard encompasses “spoil banks,” as well. Clearly, the refuse pile meets two common industry uses of that term, i.e., the accumulation of overburden, and underground refuse piled outside. The standard does not, as the operator argues, exempt from stability requirements unexcavated faces of exposed overburden and coal that are not specifically classified as “highwalls.” The purpose of the standard is to prevent exposure to unstable unconsolidated material. Therefore, it was expedient for the inspectors to remove the foreman from the dangerous conditions immediately.

 

            As Sedlock pointed out, if Extra Energy were building the access road, it was still required to follow the Plan in order to maintain pile stability, by extracting material in successive horizontal lifts with a maximum elevation of 12 feet between working benches, or excavating down the face of the existing slope from top to toe. Moreover, Sedlock testified that the walls of the pile were near vertical in places, in clear violation of the Plan, and that none of the controls that MSHA requires in a ground control plan for this type of refuse extraction were present.

 

            The plain language of the Plan is intended to ensure pile stability. The instability of the pile was evidenced by the 40' by 40' slip above the active mining area that broke loose and slid down. The slip occurred as a result of material being extracted from mid-pile and not re-sloped. Even if Extra Energy’s mid-pile method of extraction left parts of the pile resting at the angle of repose, they still would have been resting at a steeper angle than the required 2H:1V slope. While the Plan allows the operator to skip over horizontal areas when mining, it, nevertheless, requires removal of material from top to toe. To interpret the Amendment as a grant of authority to mine in a manner that reduces the stability of the refuse pile, thereby endangering miners working beneath the area, would frustrate the intent of the Act and Extra Energy’s Ground Control Plan. I conclude that the refuse pile comes within the purview of the standard and, therefore, that the Secretary has proven that Extra Energy violated section 77.1000 by removing refuse in disregard of the requirements of its MSHA-accepted Ground Control Plan.

 

 2. Significant and Substantial 

 

            In Mathies Coal Company, the Commission set forth four criteria that the Secretary must establish in order to prove that a violation is S&S under National Gypsum, 3 FMSHRC 822 (Apr. 1981): 1) the underlying violation of a mandatory safety standard; 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 in question will be of a reasonably serious nature. 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). Evaluation of the third criterion, the reasonable likelihood of injury, should be made in the context of “continued normal mining operations.” U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). Moreover, resolution of whether a violation is S&S must be based “on the particular facts surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987).

 

             The fact of violation has been established. The second element of the Mathies test has been met because the miner’s work area was situated in the wake of the unstable pile, which subjected him to the discrete safety hazard of being engulfed by unconsolidated refuse material being extracted from above. The focus of the S&S analysis, then, is the third and fourth Mathies criteria, i.e., whether the hazard was reasonably likely to result in an injury, and whether the injury would be serious.

 

            The Commission has found that it is unsafe to push refuse over the edge of a pile without compacting it, properly grading the slope, or adhering to an engineering plan. See Cyprus Emerald Res. Corp., 20 FMSHRC 790, 812-13 (Aug. 1998) (affirming the judge's determination that a large slip in a refuse pile occurred as a result of the unsafe manner in which the pile was constructed). In the instant case, the use of an unsafe mining method contributed to the hazard of tons of material breaking loose, sliding downward, and engulfing, suffocating, and crushing the miner below. This condition resulted in a high likelihood that the affected miner working beneath the area of extraction would be seriously injured or killed. Therefore, I conclude that the violation was S&S.

 

3. Unwarrantable Failure   

 

            Unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2001-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136. The Commission has recognized the relevance of several factors in determining whether conduct is "aggravated" in the context of unwarrantable failure, such as the extensiveness of the violation, the length of time that the violation has existed, the operator's efforts in eliminating the violative condition, and whether the operator has been put on notice that greater efforts are necessary for compliance. See Consolidation Coal Co., 22 FMSHRC 328, 331 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994). The Commission has also considered whether the violative condition is obvious or poses a high degree of danger. Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999) (citing BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren Steen Construction, Inc., 14 FMSHRC 1125, 1129 (July 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984)). Each case must be examined on its own facts to determine whether an actor's conduct is aggravated, or whether mitigating circumstances exist. Eagle Energy, Inc., 23 FMSHRC 829, 834 (Aug. 2001) (citing Consol, 22 FMSHRC at 353).

 

            I do not find that there were any mitigating factors. The overwhelming weight of the evidence shows that the instability of the refuse pile was obvious, as evidenced by the near-vertical angle of the slope in places and the extensive slip. Although Preservati testified that he did not see the slip before Billups showed it to him, his testimony tends to lack credibility considering that he also stated that he did not consider the slip to be a hazard. Tr. 447. I find that the slip was present, at least on March 13, when Preservati conducted his pre-shift examination. The operator should have been aware of the danger that the un-sloped wall of unconsolidated material created, and taken steps to prevent this very serious hazard. Therefore, I find that the Secretary has met her burden of establishing aggravated conduct, and that the violation was a result of Extra Energy's unwarrantable failure to comply with the standard.

 

B. Citation No. 7207737

 

            Inspector Billups issued 104(d)(1) Citation No. 7207737 alleging a “significant and substantial” violation of section 77.1713(a) that was “highly likely” to cause an injury that could reasonably be expected to be “fatal,” and was caused by Extra Energy’s “high negligence” and “unwarrantable failure” to comply with the mandatory safety standard. The “Condition or Practice” is described as follows:

 

The certified person designated by the operator to conduct safety examinations for hazardous conditions at the mine failed to observe that the work being performed was not in compliance with the approved ground control plan dated February 9, 2008. Instead of starting at the top and excavating the material in 12 foot lifts, the operator started removing the material app. 100 ft. below the top. The road cut under the material being removed reduced the stability of the working face and also violated the plan by making the material being removed higher than the operator’s cab. An area 40 ft. x 40 ft. had broken lose [sic] from the face and was easily visible to the most casual observer and was not reported, recorded, or corrected by the operator before duties were assigned in this area. This is aggravated conduct and constitutes more than ordinary negligence.

 

Ex. P-20. The citation was terminated after the hazards were recorded, and the hazardous area was barricaded.

 

1. Fact of Violation

 

            Preservati testified that he conducted pre-shift examinations each morning from March 6 to March 13, and that he did not record any hazards in the examination book. Tr. 435-440. He further stated that he did not see the slip at the time of his pre-shift examination on March 13, despite the fact that the inspectors observed it later that morning.

 

            The Commission has recognized that section 77.1713(a) embodies the requirements of examining the workplace for hazardous conditions, noting the hazards, and correcting them. Peabody Coal Co., 1 FMSHRC 1494, 1495-96 (Oct. 1979). Based on my finding that the slip existed at least during Preservati’s pre-shift examination, he failed to note for correction the hazards of mid-pile extraction, which created excessively steep slopes and rendered the wall above the work area higher than the height of the truck and excavator cabs. These are obvious conditions which Preservati, as foreman, should have recognized as very hazardous and inconsistent with the requirements of the Plan. Likewise, Preservati should have noted the 40' by 40' slip. Based on the obviousness of the dangerous mining technique, the excessively steep slopes, and the extensiveness of the slip, I conclude that the Secretary has proven that Extra Energy violated section 77.1713(a) by failing to conduct pre-shift examinations that would have reported the hazards and corrected them.

 

            2. Significant and Substantial

 

                        The fact of the violation has been established. Preservati’s failure to record the hazard of mining from mid-pile, the obvious slip, and the excessive height of material above the work area foreclosed immediate attention to the instability of the pile and compliance with the Ground Control Plan. Therefore, it was highly likely that were mining to continue, serious injury or death would result to miners working beneath the slope from tons of sliding material. Therefore, I conclude that the violation was S&S.

                        

            3. Unwarrantable Failure

 

                        Extra Energy’s failure to note and correct conditions so obviously out of compliance

            with the safety measures required by its Ground Control Plan, with very serious consequences, constitutes aggravated conduct. If the steep condition of the pile, caused by Extra Energy’s election to excavate from mid-pile, did not put the operator on notice that its mining method was hazardous, the slip, alone, was evidence of the pile’s instability. Furthermore, based on the justification that Preservati gave Billups for deviating from the Plan, the operator’s behavior was deliberate. What could be seen as a mitigating factor, then, that the slip may have existed for only a short period of time, is outweighed by Extra Energy’s deliberate disregard of its Plan. While the Secretary has not established how long the slip existed, the evidence makes clear that Extra Energy had been engaging in mid-pile mining prior to the date of the inspection. Therefore, I find that Extra Energy’s failure to conduct adequate pre-shift examinations was a result of its unwarrantable failure to comply with the standard.

 

            IV. Penalties

 

                        While the Secretary has proposed a total civil penalty of $34,600.00, the judge must independently determine the appropriate assessment by proper consideration of the six penalty criteria set forth in section 110(i) of the Act, 20 U.S.C. § 820(j). See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 763 F. 2d 1147 (7th Cir. 1984).

 

                        Applying the penalty criteria, I find that Extra Energy is a small operator, with no history of similar prior violations and an overall record that is not an aggravating factor in assessing appropriate penalties. As stipulated, the proposed total civil penalty will not affect Extra Energy’s ability to continue in business. Stip. 6. I find that Extra Energy demonstrated good faith in achieving rapid compliance after notice of Order No. 7207738 and Citation No. 7207737.

 

            The remaining criteria involve consideration of the gravity of the violations and Extra Energy’s negligence in committing them. These factors have been discussed fully, respecting each violation. Therefore, considering my findings as to the six penalty criteria, the penalties are set forth below.

 

            A. Order No. 7207738

 

            It has been established that this S&S violation was highly likely to cause an injury that could reasonably be expected to be fatal, that one person was affected, and that it was timely abated. As to negligence, Extra Energy knew that it was required to excavate the refuse pile according to the specifications of its Ground Control Plan. The steepness of the slopes and the obvious, extensive slip were evidence of the hazard created by deviating from the Plan. Thus, I find that Extra Energy was highly negligent and engaged in aggravated conduct that constituted an unwarrantable failure to comply with the standard. Applying the civil penalty criteria, I find that a penalty of $17,300.00, as proposed by the Secretary, is appropriate.

 

 

            B. Citation No. 7207737

 

                        It has been established that this S&S violation was highly likely to cause an injury that could reasonably be expected to be fatal, that one person was affected, and that it was timely abated. I find that Extra Energy’s failure to note and correct the hazardous conditions created by its deliberate deviation from its Ground Control Plan was due to high negligence and aggravated conduct that constituted an unwarrantable failure to comply with the standard. Applying the civil penalty criteria, I find that a penalty of $17,300.00, as proposed by the Secretary, is appropriate.

 

 

ORDER

 

             Accordingly, Order No. 7207738 and Citation No. 7207737 are AFFIRMED, and Extra Energy is ORDERED TO PAY a civil penalty of $34,600.00 within 30 days of the date of this decision.

 

 

 

 

                                                                        /s/ Jacqueline R. Bulluck

                                                                        Jacqueline R. Bulluck

                                                                        Administrative Law Judge

 

 

Distribution:

 

Patrick M. Dalin, Esq., Office of the Solicitor, U.S. Dept. of Labor, The Curtis Center, 170 South Independence Mall West, Suite 630 E, Philadelphia, PA 19106

 

James F. Bowman, Bowman Industries, P.O. Box 99, Midway, WV 25878

 

 

/ss