FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, D.C. 20001

December 21, 2011

DECISION

Appearances:  Francine A. Serafin, Esq., Office of the Solicitor, U.S. Department of Labor,  Arlington, Virginia, on behalf of the Petitioner; 

William J. Sturgill, Esq., Sturgill & Sturgill, Norton, Virginia, on behalf of the Respondent.

Before:            Judge Paez

This case is before me upon a Petition for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815. In dispute is a single section 104(d)(1) citation issued to Humphreys Enterprises, Inc. (“Humphreys”), by an inspector with the Mine Safety and Health Administration (“MSHA”), alleging a violation of 30 C.F.R. § 77.1005(a) at Humphreys’s No. 5 Strip mine. Humphreys timely filed an answer and the case was assigned to me for hearing and decision.

I. Statement of the Case

Prior to the hearing, Humphreys filed a motion to compel production of MSHA’s special assessment sheet, which I denied as privileged by order dated December 23, 2010. Originally, the case contained two violations issued to Humphreys – Citation No. 6639082 and Order No. 6639083. The parties settled Order No. 6639083, which I approved in my Decision Approving Partial Settlement issued on February 16, 2011. After issuing a rescheduling notice, a hearing on the merits of Citation No. 6639082 was held on February 24, 2011, in Big Stone Gap, Virginia. After its conclusion, the parties submitted written post-hearing briefs, as well as reply briefs.

Citation No. 6639082 alleges a violation of the mandatory safety standard at 30 C.F.R. § 77.1005(a). It was issued under section 104(d)(1) of the Mine Act and alleges that the citation was not only a significant and substantial (“S&S”) violation but also the result of the operator’s unwarrantable failure to comply with a mandatory safety standard promulgated under the Mine Act. Respondent disputes these allegations. The Secretary proposes an assessed penalty of $70,000.00 based on the above allegations.

II. Issues

The issues before me are (1) whether a violation of section 77.1005(a) occurred; (2) whether the alleged violation is S&S; (3) whether the alleged violation was the result of the operator’s unwarrantable failure; and (4) whether the proposed penalty is appropriate for any occurring violation.

For the reasons stated below, I determine that Humphreys violated section 77.1005(a) and that the violation was both S&S and due to a high level of negligence by Humphreys. However, I conclude that the violation was not the result of Humphreys’s unwarrantable failure.

III. Findings of Fact

            Humphreys runs the No. 2 facility in which its No. 5 section is a strip mining operation called the No. 5 Strip mine. At the No. 5 Strip mine, a driller machine is used to drill a hole in the ground down to where the coal seam is located. (Tr. 29.) In order to prepare the ground for drilling, the hill is “benched,” or flattened out to prepare for drilling and blasting. (Tr. 150–52.) The mine operator creates a pattern of holes then fills the holes with explosive materials. (Id.) The explosive materials are then ignited, resulting in a blast. (Id.) After the blast, the coal is collected and hauled away.

            The No. 5 Strip mine contains two seams of coal, the Morris seam and the Parsons seam. (Tr. 17.) These two seams were being mined on a hill. The Morris seam is located higher on the hill than the Parsons seam. (Id.) At the time this citation was issued, Humphreys had “stripped” the Morris seam. (Id.; Gov’t Ex. 4). The Parsons seam was located roughly halfway up the hill. (Tr. 20; Gov’t Ex. 4.) Humphreys had only partially stripped the Parsons seam. (Tr. 17.) The part of the hill where the Parsons seam was located had been flattened out to the point that machinery could drive on it safely. (Tr. 20.) However, an area above the Parsons seam between the stripped Morris seam and the Parsons seam was covered with spoil and dead trees. (Tr. 18.) Below the Parsons seam, farther down the hill, was a highwall. (Tr. 19.) The highwall created a ledge with a fifty-foot drop from the ledge of the highwall to solid ground at the bottom. (Tr. 48.)

            On August 26, 2008, MSHA Inspector Wade Gardner was conducting a routine inspection of the No. 5 Strip mine. (Tr. 17; Gov’t Ex. 1.) As an inspector, Gardner is a specialist in health and safety with MSHA, and he conducts regular safety inspections. (Tr. 15.) Gardner has a total of forty-six years in the mining industry, and has spent the last thirty-six years working for MSHA. (Id.) In that time, he has conducted over one hundred accident investigations. (Tr. 16.)

            The August 27 citation at issue in this case is based on an earlier citation Gardner issued during his August 26 inspection. Gardner issued Citation No. 6639078 on August 26 due to loose spoil material and trees located above the Parsons level. (Tr. 23; Gov’t Ex. 1.) Gardner was concerned that loose spoil material could roll down the hill and land on miners working the Parsons seam. (Tr. 25.) Gardner discussed Citation No. 6639078 with Haskel Wells, the day-shift foreman. (Tr. 25, 123–24.) During this discussion, Gardner told Wells that the loose spoil made the cited area unsafe for dozer operations, and a “dozer won’t stay up there.” (Tr. 32.) Wells said he would have employees “berm off” the area and “not work in that area no more.” (Tr. 26.) Wells passed along this information to James “Mike” Thomas, president of Humphreys Enterprises. (Tr. 149–50.) The area was then bermed off. (Tr. 114, 124.)

            During the conversation regarding Citation No. 6639078, Wells referenced a different area of the hill to the left of the cited area and asked Gardner if employees could continue stripping that area. (Tr. 28; Gov’t Ex. 4.) Wells wanted to have a dozer bench this different area to prepare for further drilling and shooting. (Tr. 128–129.) Gardner inspected this different area of the hill, concluded it appeared to be safe, and told Wells the area was safe and that the operator could work there. (Tr. 28–29.) This different area had “natural ground” in that it was not covered in spoil. (Tr. 151.) Wells testified that Gardner had told him the operator must remove a group of trees in order to be allowed to work in the safe area. (Tr. 139, 142.)

            After the berm had been built, Rex Strong, the day-shift dozer operator, spoke with Wells about the area cited as hazardous. Strong had been the dozer operator for the day shift at Humphreys for thirty-six years. (Tr. 112.) Wells wanted Strong to drive the dozer up an old logging road to the top of the hill then descend the hill in the dozer in order to remove a group of dead trees located just above the Parsons seam. (Tr. 31, 113.) Strong told Wells he did not feel comfortable taking the dozer over that route, as he would have to drive over unstable spoil material. (Tr. 113.) Wells then told Strong to take the dozer to the area above the Parsons seam. (Tr. 117–18). Strong was to use the dozer to bench an area above the Parsons seam. (Tr. 15, 151.) Strong followed these instructions and took the dozer to the top of the hill to search for the top of the Parsons seam. (Tr. 117–18.) In doing this, Strong stayed on natural ground and did not enter the area that had been cited as hazardous. (Tr. 116, 117–18, 154).

            Billy Johnson, the night-shift dozer operator, took over operation of the dozer after Strong’s shift ended. When Johnson arrived to work on the evening of August 26, Strong told Johnson (1) that he [Strong] had been asked to bench around the top of the Parsons seam and to remove some trees and (2) that Johnson should continue the work. (Tr. 95.) David Meade, the night-shift foreman, confirmed that Johnson was to bench around toward the Parsons seam and remove some trees with the dozer. (Tr. 96.)

            The night of August 26–27 was dark and rainy, and a heavy fog rolled in, yet Johnson attempted to operate the dozer in compliance with Meade’s directions. (Tr. 41, 104.) Johnson initially had trouble locating the Parsons seam; indeed, he called Strong at home that night and told him he had moved the dozer “a couple of hundred feet or further” from where Strong had stopped at the end of his shift, but he could not find the Parsons seam. (Tr. 98.) Strong told Johnson that the seam was probably farther up the hill. (Tr. 98–99.) Johnson believed Strong told him that he needed to be in the area where “overburden had been dumped and the trees were knocked down.” (Tr. 99.) Johnson then moved the dozer up the hill and began benching around the area where the dozer eventually became stuck. (Tr. 101.) Johnson attempted to move a group of trees with the dozer’s blade, but the trees would not move. Johnson repositioned the dozer and attempted to move the trees again. (Id.) He put the left side of the dozer blade against the trees and raised the blade. (Tr. 102.) As he accelerated forward, the dozer spun around so that it was parallel to the highwall. (Id.) The dozer slid roughly two feet. (Tr. 106–07.) Johnson then put the dozer in reverse, but the dozer tilted so that its base was uneven. (Id.) Johnson then concluded the dozer was stuck, so he put the dozer in park, gathered his belongings, and exited the dozer. (Id.) Though the dozer spun and tilted, Johnson testified that he never lost control of the dozer because the dozer was moving very slowly and he could anticipate how the dozer would react. (Tr. 103.)

            Gary Ring, the night-shift coordinator, then left Wells a message during the night of August 26–27, informing Wells that “a tractor,” the dozer, was stuck and that night-shift personnel were going to leave the tractor until morning. (Tr. 125–26.) When Wells arrived at work the next morning, he inspected the dozer Johnson had abandoned. (Tr. 126.) According to Wells, he “made sure it was in a safe area where I wasn’t putting myself in peril” and then told the day-shift coordinator to send the backhoe to retrieve the dozer. (Id.) Wells and Strong, along with Steve Bolling, a member of the construction crew, attempted to remove the dozer using another tractor. (Tr. 127.)

            Gardner returned to the mine on August 27 while Wells and his crew were attempting to recover the dozer. (Tr. 128.) Gardner went to the top of the hill to the Morris seam level and spoke to Wells. (Tr. 34.) Gardner told Wells that the dozer was in the area Gardner had forbidden a dozer to go. (Id.) Wells asked Gardner if he was sure the dozer was in the cited area, and Gardner replied that he was sure. (Id.) Gardner then gave Wells a verbal order to cease operations in the area. (Tr. 35.) Additionally, Gardner testified that Thomas stated he was glad Johnson had not driven to the group of trees, as Thomas was sure the dozer could not “stay on there if he got in the trees.” (Tr. 36, 62–63.) Thomas does not recall making this statement but did testify he was glad Johnson had not taken the dozer any farther because “it was in an area, he had gone too far south of where we really wanted to be.” (Tr. 153.)

            Gardner left the mine around 10:00 a.m. and returned around 4:15 p.m. (Tr. 37–38.) Thomas Bower, another MSHA inspector, returned to the mine with Gardner to assist with the investigation. (Tr. 84–85.) Gardner spoke with Wells shortly after Gardner returned to the mine. According to Gardner, Wells told Gardner, “Mike Thomas, the president, told me to put a dozer up there.” (Tr. 38.) Thomas’s request was not noted in the pre-shift report book, and Gardner told Wells to make a note of Thomas’s statement. (Id.) Wells agreed that the statement he wrote in the pre-shift report book was factually correct. (Tr. 132.) According to Wells, the instructions he received from Thomas were not incompatible with Gardner’s order; that is, that Thomas instructed the dozer to work in an area deemed safe by Gardner. (Tr. 133.)

            After concluding the investigation, Gardner issued Citation No. 6639082, alleging a violation of section 77.1005(a). (Gov’t Ex. 1.) The citation states as follows:

            An unsafe act was conducted in a hazardous area when the certified foreman told the Dozer Operator . . . to cut a bench in the middle of a spoil pile above the existing highwall that was previously cited for hazardous conditions including loose unconsolidated material and overhanging trees directly above the Parsons Coal Seam. . . . A safe means was not provided for performing this work. The day-shift foreman was instructed not to have a dozer upon the loose material that it was not stable enough for a dozer to operate. The day-shift foreman stated that his supervisor Mike Thomas President of the Operations instructed him to put a dozer up on the dangerous spoil. During the time that the unsafe act was conducted a serious accident has occurred. The dozer operator lost control of his dozer while operating in this dangerous spoil in dense fog and rainy conditions. The dozer ended up sliding down to the edge of the top of the highwall where there is an approximate 50 ft. drop and ended up abandoning the dozer.

(Gov’t Ex. 1.)

IV. Principles of Law

A.        30 C.F.R. § 77.1005(a)

            Section 77.1005(a) states as follows: “Hazardous areas shall be scaled before other work is performed in the hazardous area. When scaling of highwalls is necessary to correct conditions that are hazardous to persons in the area, a safe means shall be provided for performing such work.” 30 C.F.R. § 77.1005(a).

            The Mine Act establishes strict operator liability for the conduct of individual miners and contractors. See Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 155 (D.C. Cir. 2006) (rejecting operator’s argument it cannot be held liable for an independent contractor’s violations because Mine Act is a strict liability statute); Musser Eng’g, Inc., 32 FMSHRC 1257, 1272 (Oct. 2010) (“Because the Mine Act is a strict liability statute, an operator is liable if a violation of a mandatory safety standard occurs, regardless of the level of fault.”) (citations omitted). The Commission has found that “operator[] fault or lack thereof, rather than being a determinant of liability, is a factor to be considered in assessing a civil penalty.” Asarco, Inc.-Nw. Mining Dep’t, 8 FMSHRC 1632, 1636 (Nov. 1986), aff’d sub nom. Asarco, Inc.-Nw. Mining Dep’t v. FMSHRC, 868 F.2d 1195 (10th Cir. 1989).  

B.        Establishing an S&S Violation

            The Commission has found that a violation is S&S “if, based on 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). To establish a violation as being S&S, the Secretary must show “(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.” Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984). The Commission has held that “the inspector’s independent judgment is an important element in making significant and substantial findings.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC at 825–26; Mathies, 6 FMSHRC at 5.

C.        Establishing Unwarrantable Failure

            In Emery Mining, the Commission defined unwarrantable failure as “aggravated conduct constituting more than ordinary negligence.” 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 2003–04; San Juan Coal Co., 29 FMSHRC 125, 128 (March 2007); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991).

            Whether conduct is “aggravated” in the context of unwarrantable failure is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist. Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). These factors include the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. San Juan Coal Co., 29 FMSHRC at 128, citing Consolidation Coal Co., 23 FMSHRC at 593. All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated or whether mitigating circumstances exist. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000).

V. Legal Analysis, Further Findings of Fact, and Conclusions of Law

A.        Violation of 30 C.F.R. § 77.1005(a)

            Section 77.1005(a) has several requirements. In order for a violation to have occurred, the area must have been hazardous. The Secretary must then show either (1) that work was performed in the hazardous area before the area was scaled, or (2) though the hazardous area was scaled, no safe means to and from the hazardous area was provided.

            In this case, the cited area on the hill was hazardous. Gardner had issued Citation No. 6639078 because an area in between the Parsons seam and the Morris seam was unsafe. (Tr. 23; Gov’t Ex. 1.) The cited area was covered with spoil and dead trees. (Tr. 18; Gov’t Ex. 6.) The loose spoil material could fall down the hill and strike workers, and the spoil material also made the area unsafe for dozer operations. (Tr. 25, 32, 86–87, 113.) In addition, the highwall at the bottom of the hill created a ledge with a fifty-foot drop. (Tr. 48.)

            The dozer was also in the hazardous area before the area was scaled. Gardner, Johnson, and Thomas all concluded that the dozer was located in the hazardous area. (Tr. 34, 99, 154.) Their testimony is corroborated by Government Exhibits 5, 6, and 7, which show the dozer was abandoned on a part of the hill that was steeply slanted and covered in loose spoil material. Evidence showing the dozer in the hazardous area was uncontested by Humphreys. The evidence also shows that the dozer was being used to bench an area of the mine site in order to continue mining. (Tr. 117, 150.) Based on the evidence, I find that Johnson was instructed to use the dozer to bench towards the top of the Parsons seam and was not instructed to use the dozer to scale the area cited as hazardous. Nonetheless, the dozer was found in the hazardous area and had been performing work other than scaling. Therefore, I conclude that a violation of section 77.1005(a) occurred.

            Alternatively, even assuming the dozer was being used for scaling the hazardous area, a safe means for performing such work was not provided. The inspectors and miners agreed that the loose spoil material made the area unsafe for dozer operation. (Tr. 32, 113.) Those fears proved to be well founded; when Johnson took the dozer into the hazardous area, the dozer spun around, slid two feet down the hill, and got stuck. (Tr. 102–07.) Because the dozer could not operate safely within the hazardous area, a safe means of access was not provided for any scaling activities that took place, thus establishing a violation of section 77.1005(a).

B.        S&S Determination

            As articulated above, the violation of section 77.1005(a) establishes the first element of the Mathies test for an S&S violation. Therefore, to establish that the violation was S&S under the Mine Act, the Secretary must show a discrete safety hazard contributed to by the violation, and a reasonable likelihood that the hazard contributed to will result in an injury of a reasonably serious nature.

            The Secretary has provided evidence to show that operating the dozer in the cited area contributed to a discrete safety hazard. Gardner, Strong, and Thomas all testified that operating a dozer in the hazardous area was unsafe. (Tr. 32, 52, 114, 153.) The loose spoil material did, in fact, impede Johnson’s operation of the dozer on the night shift. I therefore determine that the Secretary has established that the violation contributed to a discrete safety hazard.

            The Secretary has also shown that operating the dozer in the cited area was reasonably likely to result in a serious injury. Gardner testified that it was “highly likely” that the dozer would slide down the hill and fall off the high wall, or that the dozer operator would be struck by loose spoil material. (Tr. 52.) Gardner testified that the risk of accident was highly likely because of the conditions in which the dozer was being operated, including the fact that it was a dark and rainy night, the dozer operator was shrouded in fog, and the dozer operator could not see what the material above him was doing. (Id.) Based upon his experience investigating accidents where dozers have fallen off highwalls, given the fifty-foot drop, Gardner concluded that the dozer operator could have been killed if his dozer “came off the wall.” (Tr. 47–48.) Gardner has also seen injuries such as punctured lungs, head injuries and broken limbs in similar accidents.

            Considering all of this, I conclude that the violation of section 77.1005(a) was S&S.

C.        Negligence and Unwarrantable Failure Determination

            After considering the evidence presented in this case, it appears that Johnson’s presence in the cited area was due to his failure to fully comprehend where he was operating the dozer and his misunderstanding of where he was in relation to the area cited as hazardous. Simply put, Johnson got lost, and ended up in the cited area.

            Gardner told Wells that Wells could have employees work in an area near the area Gardner had cited as being hazardous. Gardner initially told Wells that the area covered in spoil was hazardous. Wells agreed to keep employees out of the hazardous area; this agreement was underscored by the fact that he had the area bermed off during the day shift. (Tr. 26, 114.) Gardner then spoke to Wells about a different area of the mine and told Wells it was safe to use a dozer to bench an area near the cited area. (Tr. 28–30.) At the hearing, Gardner pointed out this safe area as “to the far left” and near the clump of trees in Government Exhibit 7. (Tr. 28; Gov’t Ex. 7.) Upon examining Government Exhibit 7, as well as Government Exhibits 4 and 6, the area where Gardner told Wells he could work is to the left and relatively close in distance to the area cited as hazardous. After being informed of Wells’s discussion with Gardner, Thomas told Wells to instruct the dozer operators to work in the area Gardner had said was safe, the area with natural ground, situated above the area cited as hazardous. (Tr. 151.) Thomas’s account is corroborated by Strong. Strong was instructed to bench the top of the Parsons seam, which he did during the later part of his shift. (Tr. 116–17.) Strong was aware of what constituted the area cited as hazardous, as he had constructed the berm during the first part of his shift. While operating the dozer to bench the top of the Parsons seam, Strong stayed on natural ground and did not enter the cited area. (Id.)

            If this story closed with the end of Strong’s shift, then no violation would have occurred. However, Johnson took over dozer operations and attempted to continue Strong’s work. Shortly after arriving to work for his shift at 4:30 p.m., Johnson spoke to Strong and Meade; both men told Johnson he was to bench toward the top of the Parsons seam. (Tr. 95–96.) Johnson then worked the dozer in a “hollow” beyond the area depicted by the exhibits presented at trial. (Tr. 98.) Afterwards, he operated the dozer for a period of time without being able to find the Parsons seam. (Id.) Johnson called Strong at night and told Strong he had been unable to find the Parsons seam, though he had moved a “couple of hundred feet or further” from where Strong had been operating the dozer. (Id.) It appears that Johnson was farther down the hill than he thought, as he asked Strong whether the Parsons seam could be located farther up the hill. (Id.) Strong agreed with Johnson and told him that the Parsons seam probably was located farther up the hill. (Id.) Johnson then began moving the dozer up the hill. While he was speaking to Johnson before his shift, Strong told Johnson he was also to remove some trees. (Tr. 95.) When Johnson moved the dozer up the hill that night, he saw a group of trees located next to where the dozer was eventually abandoned. Johnson believed this group of trees to be the trees he was told by Strong to remove. (Id.) It was only then, after Johnson had attempted to find the Parsons seam, moved several hundred feet from where Strong had been working, and mistakenly identified a group of trees, that Johnson entered the hazardous area and the dozer became stuck.

            Considering this evidence, I conclude that the Secretary has not established the violation was the result of Respondent’s unwarrantable failure. In reaching this conclusion, I do not take lightly the evidence presented as to the real danger that existed that night. The violative condition of unstable spoil was extensive and posed a high degree of danger for the dozer operator. It is beyond dispute that Gardner told Wells that a dozer should not be operated in the hazardous area. (Tr. 32.) Also, both dozer operators expressed concern over the idea of operating the dozer on the spoil material. (Tr. 86, 114.) Additionally, as noted above, the violation could reasonably result in a serious injury or death from a possible fifty-foot fall off the top of the highwall. However, the operator was not placed on notice that greater efforts were necessary for compliance, nor did the operator have knowledge of the existence of the violation, as Humphreys bermed off the area in order to comply with Gardner’s instructions to keep workers out of the hazardous area. I determine that Humphreys did not have knowledge that Johnson was operating the dozer in an unsafe area until the operator learned that the dozer was stuck and had been abandoned in the cited area.

            I also determine that the Secretary has not shown that the violation existed for a significant length of time. As detailed above, Johnson spent a relatively small part of his shift searching for the Parsons seam outside of the hazardous area. Moreover, both Gardner and Strong agreed that a dozer could not safely operate in the cited area due to the presence of spoil material. Gardner and Strong were both proven correct, as the dozer spun, slid and became stuck when Johnson mistakenly entered the cited area. I therefore find that the violation did not exist for a significant period of time.

            Additionally, it is undisputed that the operator immediately worked to abate the violative condition. Gardner testified that, when he arrived at the mine and saw where the dozer was abandoned, he instructed Wells to cease operations on removing the dozer. (Tr. 34–35.) Humphreys eventually built an earthen road, and the dozer was safely driven down the mountain in accordance with an action plan submitted to MSHA. (Tr. 155; Gov’t Ex. 3 at 2.) I find that the operator took every effort to safely abate the violation.

            Considering all of these factors, I determine the Secretary has not shown that Humphreys exhibited the kind of reckless disregard, intentional misconduct, indifference or a serious lack of reasonable care that amounts to unwarrantable failure. Therefore, I conclude that the violation was not the result of the operator’s unwarrantable failure.

            However, Gardner determined the violation was a result of high negligence, and the evidence supports his determination. The night of August 26–27 was dark and rainy. (Tr. 41, 104.) The presence of fog was not uncommon at the strip mine, especially during or after rain (Tr. 79); and a dense fog did, in fact, cover the area while Johnson was operating the dozer. (Tr. 48, 104.) Moreover, Wells had been warned specifically that the loose spoil made the cited area unsafe for dozer operations. (Tr. 32, 113.) Knowing all of this, Thomas, Wells, and Meade still instructed the dozer to operate in the “safe” area near the cited, hazardous area on a rainy night made darker and more dangerous by clouds and dense fog. A reasonable operator should have known that these dark, wet conditions would make it difficult for any dozer operator to distinguish between the safe and unsafe areas on the hill. Ordering Johnson to work in such conditions, while knowing a mistake could result in the possibility of a fifty-foot fall with a piece of heavy equipment, should have been enough for Humphreys’s management to exercise more caution while Johnson was working near the cited area. Indeed, Johnson was concerned enough about where he was asked to work that he called Strong, the day-shift dozer operator, to double check where he should be working. Management failed to take reasonable measures to ensure Johnson worked in the correct area. I therefore determine that Humphreys demonstrated a high degree of negligence with regard to this violation.

D.        Penalty

            Section 110(i) of the Mine Act gives the Commission authority to assess civil penalties. 30 U.S.C. § 820(i). The Mine Act requires the Commission and its Judges to consider the following six factors when assessing a civil penalty: (1) the operator’s history of previous violations, (2) the appropriateness of the penalty to the size of the operator’s business, (3) the negligence of the operator, (4) the effect of the penalty on the operator’s ability to continue in business, (5) the gravity of the violation, and (6) the operator’s demonstrated good faith. Id.

            The Secretary has directed my attention to MSHA’s Data Retrieval System for evidence regarding Humphreys’s history of violations. (Pet. for Assessment of Civil Penalty 2.) MSHA’s Data Retrieval System shows twenty-eight violations over a fifteen-month period preceding this violation, fourteen of which were assessed as S&S violations. None of these previous citations alleged the standard breached in Citation No. 6639082. In considering this history along with the other statutory factors, I take special note that the Secretary established this section 77.1005(a) violation was the result of Humphreys’s high degree of negligence. I have also noted that Humphreys presented no evidence that this penalty will affect its ability to continue in business. Therefore, I conclude that a penalty of $30,000.00 is appropriate given the violation history, the size of the mine, Humphreys’s high negligence, this violation’s serious gravity implicating the risk of fatal injury, and Humphreys’s good faith abatement of the violation. Accordingly, I hereby assess a civil penalty of $30,000.00.

VI. Order

            In light of the foregoing, it is hereby ORDERED that Citation No. 6639082 be modified to a section 104(a) citation, thus removing the unwarrantable failure designation. It is further ORDERED that Citation No. 6639082 is affirmed in all other respects.

            Within 40 days of the date of this decision, Humphreys is ORDERED to pay a civil penalty of $30,000.00

                                                                        /s/ Alan G. Paez

                                                                        Alan G. Paez

                                                                        Administrative Law Judge

Distribution:

Francine Serafin, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 1100 Wilson Boulevard, 22nd Floor West, Arlington, VA 22209-2247

William J. Sturgill, Esq., Sturgill & Sturgill, 440 Park Avenue, N.W., P.O. Box 770, Norton, VA 24273

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