FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5266/FAX 303-844-5268

September 23, 2011

DECISION

Appearances:  Susan Seletsky, Office of the Solicitor, U.S. Department of Labor, Los Angeles, California for the Secretary,

Adele L. Abrams, Law Office of Adele L. Abrams, Beltsville, Maryland for the Respondent.

Before:            Judge Miller

            This case is before me on a notice of contest based upon four enforcement documents filed by the Secretary of Labor, acting through the Mine Safety and Health Administration, against Connolly-Pacific Company at its Pebbly Beach Quarry, pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). The case includes four separate docket numbers that involve three 104(a) citations and one 107(a) imminent danger withdrawal order.

            These dockets were heard on an expedited basis after Connolly-Pacific timely filed Notices of Contest for the citations and order and moved to consolidate and expedite proceedings. Connolly-Pacific stated that the highwall was not a safety hazard and argued that a mining/mine plan is not required for surface aggregate operations. Further, Connolly-Pacific argued that the section 107(a) imminent danger order would prevent them from meeting a pre-existing production contract. The Secretary opposed Connolly-Pacific’s motion to expedite, stating that she did not expect the Contestant to prevail and Connolly-Pacific would ultimately have to develop a prudent mining plan. The Court granted the Contestant’s Motion to Consolidate and Expedite Proceedings and the hearing of this matter commenced on July 18, 2011 in Long Beach, California.

I. STATEMENT OF FACTS

            Connolly-Pacific Company (“Connolly-Pacific”) operates a stone quarry, the Pebbly Beach Quarry (the “quarry” or “mine”), on Catalina Island, California. Resp. Ex. 7 p. 3. Connolly-Pacific has owned and operated the quarry since as early as the 1950s. Id. The quarry is subject to regular inspections by the Secretary’s Mine Safety and Health Administration (“MSHA”) pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that Connolly-Pacific is the operator of the mine, that its operations affect interstate commerce, and that it is subject to the jurisdiction of the Mine Act. (Tr. Vol. II: 5). The parties further agreed that, although this is a notice of contest case, the penalty case may be consolidated and decided with the contest.

            The Pebbly Beach Quarry produces greywacke landscape and armor stone in varying sizes ranging up to 30 tons. Cont. Ex. E-1, p. 1; (Tr. Vol. I: 230). The rock is primarily brought down by blasting. Connolly-Pacific uses a number of blasting methods, including the “coyote” blasting method, to generate raw stone at the quarry. Cont. Ex. E-1, p. 1; (Tr. Vol. I: 36). The last major blasting event in the area cited by MSHA Inspector Hilde was a “coyote” blast that occurred in 2004. (Tr. Vol. I: 36). Since 2004 there have been additional blasts of less intensity, including “lifter blasts,” “down blasts,” and “secondary blasts.” (Tr. Vol. I: 36, 165). Due to the height of the highwall, Connolly-Pacific does not, and cannot, scale the highwall to control loose material and, instead, relies on a few blasts, gravity, and rainfall to bring down debris and loose boulders. (Tr. Vol. I: 33, 34, 49, 72, 84). The Pebbly Beach Quarry produces three types of raw product: “A” rock, “B” rock and Quarry Run. (Tr. Vol. I: 229). “A” rock comprises of armor rock between 4 and 30 tons; “B” rock is between ¼ to 4 tons; and Quarry Run is everything smaller than “B” rock. (Tr. Vol. I: 229). The large “A” rock is greywacke, which is the most valuable and sold to ports along the coast. (Tr. Vol. I: 235; Tr. Vol. II: 106). The stone is loaded on a barge at a loading dock at the foot of the quarry for transport to its final location. Resp. Ex. 7 p. 3.

            On May 24, 2011, MSHA Inspector Chad Hilde visited the Pebbly Beach Quarry and issued section 104(a) Citation Nos. 8607224, 8607225, and 8607226. (Tr. Vol. I: 16). On the same day, Hilde issued section 107(a) imminent danger Order No. 8607223 based upon the conditions noted in the three 104(a) citations. He instructed Connolly-Pacific to cease quarrying operations in the described area. MSHA Engineer Steven Vamossy accompanied Inspector Hilde on May 24, 2011. Vamossy photographed and recorded observations of the highwall conditions and was present during conversations with Connolly-Pacific employees. (Tr. Vol. I: 17-18, 158, 160). Representatives of the operator also accompanied the inspection team. The citations, as amended, allege that two 300 foot tall sections of the highwall were not properly maintained, a hazard existed which had not been corrected, and the areas were not barricaded as required by 30 C.F.R. §§ 56.3130, 56.3131, and 56.3200 respectively. At the 480 south section of the quarry, the bottom seventy feet, known as the talus pile, was at an angle of repose of about 45 degrees. (Tr. Vol. I: 21-22, 30-31, 65, 221; Tr. Vol. II: 18). At the 480 north section of the quarry, there was no talus pile, however, tire tracks at the face demonstrated that travel under that highwall continued to occur in that area. (Tr. Vol. I: 23). The highwall rises up to 300 feet in the 480 north, and more than 200 feet above the talus pile in the 480 south. While the two cited areas were not bermed, a portion of the mine between the north and south areas was not being mined at the time and had been bermed to prevent access to persons and equipment. (Tr. Vol. I: 20, 29, 31).

            Hilde and Vamossy agree that they observed loose material and cracked rock on the highwall above both the working sections, the 480 north and the 480 south. (Tr. Vol. I: 21, 25, 66, 166, 170). Hilde observed a loader mucking the talus pile in the 480 south area. (Tr. Vol. I: 19, 21, 30). The photo, Resp. Ex. 15, DOL 070, shows the 480 south area with a cone shaped pile of material approximately 70 feet high, described as talus pile, which consisted of material that has rolled from the highwall as a result of a blast or a fall. (Tr. Vol. I: 22). The photo further illustrates the condition of the talus pile and highwall in the 480 south area, and the position of the loader beneath, as observed by Hilde and Vamossy. (Tr. Vol. I: 21, 22, 24). A second photo, Resp. Ex. 15, DOL 072, clearly shows cracks in the highwall above the 480 south and pieces of rock that overhang the area in which the loader was working. (Tr. Vol I: 170). After observing the 480 south, Hilde and Vamossy walked northward, along the 480, to the north area, passing by the bermed area en route. (Tr. Vol. I: 23). One photo, Resp. Ex. 14, DOL 067, is a photo of tire tracks that lead up to the toe of the highwall at the 480 north, and indicate that the loader had cleaned up to the face. (Tr. Vol. I: 23). Photo, Resp. Ex. 14, DOL 68, shows the same area, but taken from a further distance. Hilde testified, with the use of the photograph, that he could see rock overhanging at the top and loose pieces of rock in several locations on the wall, and he knew that the wall had not been scaled. (Tr. Vol. I: 24). The photographs in Resp. Exs. 14 and 15 clearly show cracks and loose rock and material on the highwall above the working area, as observed and testified to by Hilde and Vamossy.

            During the course of the inspection, Hilde and Vamossy questioned the mine employees and mine management about maintaining the highwall. (Tr. Vol. I: 22, 36, 59). Neither Hilde nor Vamossy had observed a highwall of this height and it was clear that, given the height, the highwall could not be scaled. (Tr. Vol. I: 34, 49, 72, 84, 166). Further, the two cited areas were not benched or bermed. (Tr. Vol. I: 33).

            Connolly-Pacific explained the method of mining used at the quarry to include the mucking out of material from the talus pile until the mine feels it is no longer safe to work in that area, at which time they move to a different location. (Tr. Vol. I: 36). The areas are mucked as material falls and joins the talus pile. (Tr. Vol. I: 36). The area is not benched and, instead, the mine uses weekly examinations, daily examinations, spotters and, to a limited extent, blasting to control the highwall. (Tr. Vol. I: 33, 37). Hilde was told that the last coyote blast was done in 2004. (Tr. Vol. I: 36). That blast brought down tons of material that continues to be mucked. (Tr. Vol. I: 233). The mine conducts one other type of blasting that relates to highwall control, lifter blasting. (Tr. Vol. I: 225). A lifter blast can help with ground control but its primary purpose is production. (Tr. Vol. I: 234). No lifter blasts were conducted at the 480 south in 2011, but two or three blasts were conducted in that area prior to August 1, 2010. (Tr. Vol. I: 250-251). One or two lifter blasts were conducted at the 480 north in 2011 and the talus was mucked back to the toe of the highwall. The mine had completed the work at the 480 north and had planned to berm the area to keep out men and machines, but had not had time to do so prior to the visit by Hilde and Vamossy. (Tr. Vol. II: 21-22). When asked, the mine could not locate any engineering or geologic studies for either area, nor could it produce any tools to measure the conditions. (Tr. Vol. I: 37-38; Tr. Vol. II: 40-41). The mine does have aerial photos taken, currently once a year, to view the quarry and to, in part, help determine the condition of the highwall. (Tr. Vol. I: 39, 57, 87, 238-238). The mine had no plan for control of the highwall other than that which was already in place. (Tr. Vol. I: 44, 47). It did not intend to begin scaling or benching in any area cited.

            Connolly-Pacific has operated the Pebbly Beach Quarry for decades. (Tr. Vol. I: 227). The company has mined tons of stone and rock and has had a steady, reliable work force. (Tr. Vol. I: 138). The mine employs 22 miners, many of whom have, or have had, a father or other family who works, or worked, at the mine. (Tr. Vol. I: 123, 138, 245; Tr. Vol. II: 44, 65). The employees are loyal to the company and have never raised a complaint about the safety of the highwall. (Tr. Vol. I: 246-247; Tr. Vol. II: 25). Of the witnesses who testified on behalf of the mine, two were not everyday workers at the mine, but were present at the mine once a week or less, while the remaining witnesses work daily at the mine. The three who work daily at the mine have not worked at any other quarry or mining operation in their career. The mine, located on Catalina Island, is subject to earthquakes and small tremors. (Tr. Vol. II: 95, 113-114). The mine has had only one accident related to a fall of rock in its history. Resp. Ex. 17.

            The Pebbly Beach Quarry utilizes supervisor observation and spotters to watch the highwall for any problems. (Tr. Vol. I: 128, 131, 147). On a weekly basis, one of the managers travels to the top of the highwall to look for anything unusual. (Tr. Vol. I: 111-112, 124). Each day, management looks at the highwall from the lower levels to determine if any changes have occurred. (Tr. Vol. I: 124). Machado, one of the managers at the mine, is assigned to look at the highwall each day before he assigns the day’s work. (Tr. Vol. I: 90). Machado keeps notes of his weekly and daily examinations. (Tr. Vol. I: 92). Machado’s notes for 1/7/11, Resp. Ex. 19, indicate that it was too muddy to travel to the top of the highwall, that the mine had received rain for two weeks, that some rocks had rolled or fallen off the highwall, and that he was continuing to watch due to the rain. (Tr. Vol. I: 113-114). His notes further reflect that, on 1/15/11, he was watching a crack that had developed and he noted that dirt had moved due to recent rain. Resp. Ex. 19 ; (Tr. Vol. I: 115). Machado explained that he had been watching a problem spot high up above the 480 south, and his notes indicate that he observed cracks in the rock that were growing larger. Resp. Ex. 19; (Tr. Vol. I: 103). After a series of rains, the rock came down during the night on May 5, 2011, and Machado noted its movement. Resp. Ex. 19; (Tr. Vol. I: 96, 104). Machado stated that he watches the movement on the highwall and, normally, he waits a few days after a fall to see if anything else comes down before assigning work in the area. (Tr. Vol. I: 114-115, 144). However, on May 5, after the fall, he assigned miners to work in the 480 south area because, according to his testimony, it appeared safe to go in. (Tr. Vol. I: 97, 115). The notes of Machado indicate that slight rain does not get in the way of production. Resp. Exs. 19 and 20; (Tr. Vol. I: 144). However, when there is heavy rain, the roads become too muddy for equipment to pass and, consequently, the mine is closed. (Tr. Vol. II: 33).

            According to mine witnesses, if a work area appears safe, they will work it, but pull back if any miner raises a safety issue. (Tr. Vol. I: 126; Tr. Vol. II: 19). The miner witnesses agree that they have not seen any rock “free fall” from the top of the highwall while working. (Tr. Vol. I: 122, 125; Tr. Vol. II: 46, 68). Instead, rocks and material slide or roll down, often landing in the talus pile or rolling off that pile. (Tr. Vol. I: 125). The notes of Machado show that mucking was ongoing at both the 480 north and south up to the time of Hilde’s inspection. Ex. 19.

            Aside from blasting, work is assigned primarily at the talus pile, which is composed of material that is blasted or has slid off of the wall due to weather or other conditions. The loader can load most rock that is contained in the pile, but if the rock is too large, it is pushed aside and later broken up by a secondary blast. (Tr. Vol. I: 100, 148, 231; Tr. Vol. II: 52-53). If an area is not safe to mine, such as the area between the 480 south and 480 north, the mine constructs a berm, often with large rock, to prevent access. (Tr. Vol. I: 126, 140, 141-142, 147, 237; Tr. Vol. II: 20).

            Once the manager has observed the highwall shortly after his arrival, he assigns a crew to work the talus piles to load the rock onto waiting trucks. (Tr. Vol. II: 66). A trained spotter is assigned to the crew and each crew member is issued a radio for communication during the day. (Tr. Vol. I: 129-130, Tr. Vol. II: 15, 45, 66). The spotter is assigned for 8 hours, but is relieved for bathroom breaks if he so requests. (Tr. Vol. I: 134-135). The spotter watches the talus pile and the highwall and avoids the heavy equipment working in the area while he is on foot. If the spotter observes any rock or dirt come off the wall, he notifies the other crew members who pull back and look at the area noted and together decide if they should continue with the load and haul process. (Tr. Vol. I: 126; Tr. Vol. II: 15). If the miners believe it is not safe to work in any area, they may tell the others and together determine if work should continue. (Tr. Vol. I: 126, 129; Tr. Vol. II: 26, 32). Few complaints, if any, have been made about the safety of the highwall. (Tr. Vol. I: 126, 246-247; Tr. Vol. II: 26).

            The worker exposed daily to the fall of rock is the operator of the loader, who mucks the talus pile back to the toe of the highwall. (Tr. Vol. II: 46, 62). The loader cab is approximately 17.5 feet off the ground and has rollover protection and a wire screen protecting the cab. (Tr. Vol. II: 34, 40, 48, 50, 132). In the event a spotter notices a suspicious area or sees rock rolling, he warns the loader operator, who then, in the mine’s view, has time to move out of harms way. (Tr. Vol. I: 145). The distance the loader is operating from the toe of the highwall and the amount of material in the bucket, determine how quickly the loader can escape. As a result, the level of danger or exposure to falling and rolling rock increases as the loader works ever closer to the toe of the wall where it necessarily takes longer to move out of harms way.

            The other activity that occurs at the highwall and exposes miners to fall, is blasting. (Tr. Vol. I: 130). There are several kinds of blasts, mostly for production purposes. (Tr. Vol. I: 229). The blaster must approach the highwall on foot with helpers in order to set charges for a blast. (Tr. Vol. I: 116; Tr. Vol. II: 38). A spotter is present during this process. The blaster drills the wall, sets the charges and controls the blast. Once the area is blasted, it is left for 24 hours to determine if any other material will fall. (Tr. Vol. II: 69, 94). Resp. Ex. 21, DOL 181, 182, 183 are a good depiction of the location of the blasters and helpers during the process. (Tr. Vol. I: 116). The crew is next to the highwall during the setting of the charges and, because radio frequencies interfere with explosives, the spotter is armed with an air horn to warn of any dangerous conditions above. (Tr. Vol. I: 146, 151; Tr. Vol. II: 80-81). The company’s blaster explained that coyote blasting has not been done for more than seven years, but he has performed “lifter” blasts, “down” and “secondary” blasts since then. (Tr. Vol. II: 72-73). The lifter blasts aid in ground control as well as production, while the other blasts are generally for production purposes. (Tr. Vol. I: 149, 234; Tr. Vol. II: 72-73). A record is kept of all blasts. (Tr. Vol. I: 250; Tr. Vol. II: 75); Resp. Ex. 18.

            In general, the mine has operated with the use of spotters for many years with little problem. The methods of controlling the highwall include some limited blasting, and allowing the material to fall under natural conditions. The photographs and checks by management are used by Connolly-Pacific to observe changes in the highwall and predict the fall of material. Benches and scaling are not now, and have not or rarely been, used in this area of the mine. The highwall has been developed to such a height that it is difficult, if not impossible to scale.

II. DISCUSSION AND CONCLUSIONS OF LAW

            In essence, Connolly-Pacific is charged with not maintaining the highwall in a stable condition. The stability of a highwall depends on a number of variables, including its height, the geology, and the angle of the wall. In addition to the blasting and occasional photographs utilized by Connolly, mines normally use benching and scaling to control a highwall. Generally, benches are placed above the working area to “catch” and help control rock or material that is rolling or falling from the highwall. Scaling is used to remove loose or hanging rock and material before it falls. This quarry uses neither scaling nor benching to control the fall of material from the highwall. Blasting is another method often used to control a highwall by bringing down loose material before it falls. All mines, no matter which method or methods are used to control the highwall, must always be vigilant in watching the movement and the changes in the highwall.

            The Connolly-Pacific highwall is roughly 300 feet high with no bench below. While in one cited area there was a talus pile, approximately 70 feet high, there was no talus pile in the other cited working area. The talus pile, to some extent, serves to impede the travel of rock and debris as the material falls or rolls off of the wall. As the talus pile is mucked, the loader is forced to move closer and closer to the highwall. As a result, the buffer provided by the talus pile shrinks, thereby increasing the danger. All parties agree that the talus pile consists of loose material which can move and roll, however, such movements and rolling are generally predictable. The highwall, on the other hand, is not predictable, in the sense that one will not know when material may fall. The loose and cracked rocks are most likely to roll or fall from the wall after a “secondary” event occurs. The operator’s expert, Johnson, explained that a secondary event may include an earthquake or tremor, rain, water run-off, or other weather event. While one may predict that, after a number of days of rain, material will slough off of the highwall, it is uncertain when that will occur and to what degree. Johnson testified that rain could “cause[] failures to occur days or even weeks after the rainfall.” (Tr. Vol. II: 116). In other words, rain on a certain day does not necessarily indicate that material will slide or fall within a set time period. The same is true of sloughing caused by other secondary events.

            It is the position of the Connolly-Pacific that, prior to the issuance of the citations contested herein, it had not been provided with any notice that the manner in which the mine controlled the highwall was not in compliance with the requirements of section 56.3130 and the related highwall standards. Connolly-Pacific argues that the conditions had never before been cited during any inspection. Hilde inspected the mine, including the highwall, in 2008. At that time he had concerns about the highwall and its safety. According to the mine, following the inspection in 2008, management had a telephone conversation with Hilde and his supervisor and, subsequently, agreed to provide berms in certain areas of the mine to alleviate Hilde’s concerns. No other inspector had mentioned any problem with the highwall and the mine has received no citations for failing to control the highwall.

            The Contestant’s assertion that they have been deprived of fair notice because they have never been cited for the highwall, or specifically notified of the application of the standards to the highwall, is not persuasive. An operator is deprived of fair notice of the applicability of a standard when it is “so incomplete, vague, indefinite or uncertain that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990) (quoting Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982)) (alteration in original). Explicit notice to the operator is not required. Put another way, “[w]here the language of a regulatory provision is clear, the terms of that provision must be enforced as they are written unless the regulator clearly intended the words to have a different meaning or unless such a meaning would lead to absurd results,” Lode Star Energy Inc., 24 FMSHRC 689, 692 (July 2002) (citing Dyer v. United States, 832 F. 2d 1062 (9th Cir. 1987)). The standard for maintaining the stability and safety of the highwall is sufficiently clear. The standard is not vague or incomplete. Section 56.3130 is a performance-oriented standard “broad enough to apply to the wide variety of conditions encountered.” Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 375 (Mar. 1993) (quoting 51 Fed. Reg. 36193 (Oct. 8, 1986)).

            Next, there is no evidence to demonstrate that the conditions cited by Hilde during the 2011 inspection were identical to the conditions observed in 2008 or on any other inspection. In fact, the photos provided by the mine demonstrate that the mine has changed. Specifically, the talus piles that were in place in 2008 are not the same as those in 2011. Finally, I find that a reasonably prudent person familiar with the mining industry would recognize the requirements of the standard. As the Commission explained in Lodestar Energy, Inc., 24 FMSHRC 689, 694 (July 2002):

The appropriate test for notice 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 2409, 2416 (Nov. 1990).

            In Phelps Dodge Tyrone, Inc., 30 FMSHRC 646, 656, (Aug. 2008), the Commission, citing earlier precedent, reiterated the “reasonably prudent person” standard:

[T]he alleged violative condition is appropriately measured against the standard of whether a reasonably prudent person familiar with the factual circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the mining industry, would recognize a hazard warranting corrective action within the purview of the applicable regulation.

Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982); see also Asarco, Inc., 14 FMSHRC 941, 948 (June 1992).

            As the Commission stated in Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990), “in interpreting and applying broadly worded standards, the appropriate test is not whether the operator had explicit prior notice of a specific prohibition or requirement,” but whether a reasonably prudent person would have ascertained the specific prohibition of the standard and concluded that a hazard existed. The reasonably prudent person is based on an “objective standard.” U.S. Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983).

            In the instant case, the text of the regulation, along with the guidance in the MSHA Program Policy Manual (“PPM”), further lead to the conclusion that a reasonably prudent person would have been aware of the requirements of the cited standards. I take official notice of the MSHA PPM that specifically suggests benches as a way to effectively control the highwall along with scaling. In addition, I find that, given the obviousness of the conditions at the mine, including the extreme height of the highwall, the loose and cracked rock, and the lack of benches, a person familiar with mining would recognize the hazard and recognize that corrective action must be taken.

            Having found that the mine’s argument regarding fair notice is not persuasive, I move to the individual citations. Each citation is based upon the condition of the highwall as observed by Hilde and Vamossy. The Mine Act requires the highwall to be maintained in a stable condition. Many experts, including the expert presented by Connolly-Pacific, recommend that benches and scaling, as well as limited blasting, be used to maintain the stability of the highwall. Photographs, watching the highwall, and tracking the weather are helpful in anticipating the fall of rock and material, but they do not prevent or actively control such falls. Further, having spotters on the ground observing the highwall while miners work below does not maintain the highwall’s stability and, instead, only mitigates against the damage a fall may create. For the reasons set forth herein, I find that Connolly-Pacific failed to adequately maintain the highwall and slope stability as required by the Mine Act and the Secretary’s regulations

a.         Docket No. WEST 2011-1065-RM - Citation No. 8607224

            On May 24, 2011 Inspector Hilde issued Citation No. 8607224 at the Pebbly Beach Quarry for an alleged violation of 30 C.F.R. § 56.3130. The citation, as amended, alleges, in pertinent part, the following:

At the south end of the 480 level, a Cat 992 D Loader, Co # 5, was loading under an approximate three hundred foot highwall. The lower approximate seventy feet containing material that had slid or raveled off the highwall, was at angle of repose of approximately 45 degrees. The slope of the remaining approximate two hundred thirty feet of wall ranged from seventy two to ninety degrees. The top of the wall had loose and unconsolidated materials and boulders. The loader was cleaning material that had raveled and slid off the wall. There was also recent activity at the north end of the 480 level where material had been cleaned up under overhanging material. The mining method involved assigning employees to pick up material that had slid off the highwall. The operator took no action to determine or maintain the stability of the highwall after material had slid before assigning employees to work under it.

Inspector Hilde found that a fatal injury was reasonably likely to occur, that one person was affected, that the violation was significant and substantial, and that the violation was the result of moderate negligence.

            1.         The Violation

            Chad Hilde has worked as an MSHA mine inspector for nearly ten years and worked in the mining industry prior to that. He has taken college courses, including courses in engineering and geology. Hilde cited a violation of 30 C.F.R. § 56.3130, which requires the following:

Mining methods shall be used that will maintain wall, bank, and slope stability in places where persons work or travel in performing their assigned tasks. When benching is necessary, the width and height shall be based on the type of equipment used for cleaning of benches or for scaling of walls, banks, and slopes.

The Commission has stated that section 56.3130 is a “performance-oriented” standard “broad enough to apply to the wide variety of conditions encountered.” Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 375 (Mar. 1993) (quoting 51 Fed. Reg. 36193 (Oct. 8, 1986)). MSHA details the requirements of section 56.3130 in its Program Policy Manual, which states the following:

Consistent with . . . [Section 56.3130], MSHA requires that a bench located immediately above the area where miners work or travel be maintained in a condition adequate to retain material that may slide, ravel, or slough onto the bench from the wall, bank, or slope.

IV MSHA, U.S. Dep’t of Labor, Program Policy Manual, Part 56, at 10 (2010) (“PPM”).

            Neither 30 C.F.R. § 56.3130, nor the PPM, should be interpreted as mandating a benching system in all areas of all highwalls. Malvern Minerals Co., 11 FMSHRC 2382, 2386-87 (Nov. 1989) (ALJ) (stating that section 56.3130 “requires benching . . . only when ‘necessary’”). However, it is clear that operators must employ excavation/mining methods that not only protect workers from falling or sliding rock, but also “maintain wall, bank, and slope stability.” 30 C.F.R. § 56.3130. Commission judges have previously relied upon the cited section of the PPM in upholding section 56.3130 citations when operators failed to provide an adequate protective bench at the toe of a highwall. See e.g., Summit Inc., 19 FMSHRC 1326, 1339 (July 1997) (ALJ). While Pebbly Beach Quarry argues that photographs, limited blasting, and the watchful eyes of its supervisors and spotters maintain the highwall, the mine, nevertheless, does not employ scaling or benches as a method of control. I agree that there is no requirement to engage in the use of benches to protect the miners below the highwall from falling material, but if benches are not used, the mine must employ some alternative effective methods to maintain stability of the wall.

            Many of the photos taken by Hilde and Vamossy on the day of citation demonstrate the condition of the highwall. For example, the photo, Resp. Ex. 15, DOL 070, clearly depicts the Cat 992 Loader referenced in the citation positioned at the base of the highwall. The highwall is approximately three hundred feet high directly above the loader and increases in height to the right side of the picture frame. The height alone is unusual in the mining industry and the wall is nearly vertical. A large pile of loose boulders is visible on the pit floor adjacent to the 992 loader. Resp. Ex. 15, DOL 070. Rocks that are overhanging and cracked on the wall, as well as loose material on the highwall, are evident in the photos. Resp. Ex. 15, DOL 067, 068, 070, 072. No benches or other evidence of highwall maintenance are apparent in the photos.

            In addition to the photographs contained in Resp. Exs. 14 and 15, I have relied upon the expert testimony of both parties in considering this citation. Both parties agree that there is little likelihood of a massive highwall failure. Moreover, both experts agree that material sloughs off of the talus pile as it is being mucked. Such sloughing of the talus pile is generally predictable and mucking of the pile is an accepted method of moving the material to a load out position. The citation, however, is directed at the highwall as it soars hundreds of feet above the talus pile in one instance, and above the working area in another

            Steven Vamossy presented expert testimony on behalf of the Secretary regarding the stability and alleged potential hazards present at the Pebbly Beach Quarry. Vamossy is a registered professional civil engineer and has worked in MSHA’s Technical Support division for ten years. Vamossy accompanied Inspector Hilde on the day the May 24th citations were issued. It appears that, at least in part, Hilde relied upon Vamossy’s observations and evaluation of the highwall conditions in his decision to issue all three 104(a) citations and the subsequent 107(a) withdrawal order. In his final report, Vamossy described two general types of hazards associated with highwalls: (1) mass instability, and (2) individual rock fall hazards. Resp. Ex. 7. Vamossy stated that, due to the orientation of the rock layers present at this area of the Pebbly Beach Quarry, the possibility of massive rock movement was unlikely. However, Vamossy also stated that there were some joints at the north end of the quarry wall which indicated a potential for sliding or toppling of smaller slabs of rocks.

            Vamossy testified that a falling rock hazard was present at the pit floor. He noted that Connolly-Pacific had not established horizontal catch benches consistent with MSHA’s Program Policy Manual section addressing section 56.3130, and had allowed the front end loader to operate near the toe of the highwall, which contained loose and overhanging rock. Vamossy concluded that Connolly-Pacific should: (1) incorporate benching as part of their mining plan; (2) extend the rock catchment berm to protect haul road traffic; and (3) periodically monitor the tension crack located at the inactive south end of the quarry. Id. Vamossy was able to point out, through the use of photographs, a large section of rock on the north 480 highwall that had fallen and rolled down the wall after a series of rainfalls. This same area had been identified and was being watched by Machado, and clearly came down during the night of May 5, 2011.

            Jeffrey Johnson presented expert testimony for Connolly-Pacific. Johnson has a PhD in engineering from the University of California and is a certified by the State of California as an engineering geologist. Johnson’s experience has been primarily in construction and earthquake preparedness. Johnson’s report on the Pebbly Beach Quarry conditions was based upon a number of visits to the quarry by him and his assistants during June 2011, collections of rock samples, the contested MSHA citations, aerial photographs, and discussions with Connolly-Pacific management.

            Johnson testified that quarry observations and aerial photographs indicated that the rock formations present at the operative area of the quarry were not subject to massive slope failure. He testified to the manageable nature of the blast talus slope present at the quarry. Johnson stated that, as mucking operations proceed at the toe of the talus pile, the slope will fail, predictably, in thin slabs as material is removed from the toe. According to Johnson, removal of the blast talus pile does not affect the stability of the steep areas above the talus pile. Johnson also stated that talus slopes form a buffer that will slow rock fall fragments from above. Moreover, by slowing any rock fall fragments, the talus pile provides time for equipment operators to adjust their position in the event of a rock fall. However, Johnson noted that working at the base of a highwall that is susceptible to falls and topples is problematic if a significant accumulation of talus does not exist to serve as a buffer. In that instance, Johnson recommended benching and scaling to control the highwall. Cont. Ex. E-1, p. 9. The existence of the talus pile is crucial to Johnson’s testimony, yet there was no talus pile at the 480 north area. (Tr. Vol. II: 143, 146).

            As Johnson explained, the primary difference between his report and conclusions reached by Vamossy is a disagreement as to when the highwall becomes a hazard. Vamossy asserted that the highwall, without benching or scaling to prevent or control any fall of material, is a hazard in its present condition. Johnson, on the other hand, opined that there was no hazard, and a hazard only comes into play when a secondary force, such as an earthquake or rain, is added into the equation. There is no question that a secondary force such as an earthquake, weather, or other force, will affect the slope and cause it to fall. Without the secondary force, in Johnson’s view, there is no hazard. The Secretary’s position is that the highwall must be controlled both in anticipation of the secondary event and after the secondary event. Johnson believes that the secondary force is predictable and the spotters and the talus pile serve to control any potential damage from those forces. Johnson explained that, once there is the presence of the secondary force, like an earthquake or rain, the mine has time to respond to that secondary force. According to the mine, the supervisor and spotters would be aware of the secondary event and, when rock or dirt begins to come down, they will remove the miners from the affected area. Hilde and Vamossy disagree with the mine’s position, and the Secretary argues that the highwall must be controlled prior to any fall that the spotters may observe.

            I credit the testimony of inspector Hilde and Vamossy in evaluating the citations. I find the Secretary’s witnesses to be more convincing, reliable and objective. I find Vamossy’s conclusions regarding the condition of the highwall to be consistent with the photographs and the general tenor of the testimony of all witnesses. Vamossy examined the area in order to gather enough evidence to reach his conclusion. While Johnson and his team also viewed the area, Vamossy did it with an eye to mine safety, unlike the engineers for the operator who have no experience in the mining industry.

            After considering all witness testimony, photos and exhibits of quarry conditions, and expert reports detailing the Pebbly Beach Quarry, I conclude that the Secretary has demonstrated that a violation of 30 C.F.R. § 56.3130 existed at the quarry on May 24, 2011. I credit Inspector Hilde’s testimony that loader tracks were present at the base of the north end of the 480 level, indicating operations beneath overhanging material where there was neither a protective catch bench or buffer talus slope to stop or slow any falling material. There is no dispute that the loader was working on the talus pile in the 480 south area. Therefore, the areas cited by Hilde are areas where miners work or travel. I do note that the design of the Cat 992 loader operating at the time of the citation may offer some protection from smaller falling rock. However, a sizeable rock or boulder falling from a height of greater than one hundred feet could certainly cause a fatal injury to an equipment operator, even if located within a protective cab. Further, the absence of a berm or warning signs at this area allowed quarry employees to enter the north end of the quarry on foot where overhanging material was present.

            Connolly-Pacific has presented testimony that operating at the toe of the talus slope is consistent with prudent mining methods. While I accept Connolly-Pacific’s position that the talus slope itself is a manageable area, I do not accept the proposition that continued mucking operations, without the creation of protective catch benches, scaling, or other recognized controls or maintenance of the highwall, is acceptable. If mucking operations continue without alteration, the toe of the talus slope will move closer and closer to the highwall, and loading operations will, by necessity, eventually occur at the base of the highwall without any protection. Based on the lack of a talus pile at the 480 north, the mine apparently mucked all the way to the base of the highwall in that section prior to the inspection and was working on the other section, doing the same.

            It is clear that the mine keeps an eye on the highwall through occasional or yearly photographs, examinations by management, and observation by spotters. While the mine watches the wall, they do not prevent anything from coming down unexpectedly and, hence, do not control or maintain the wall. Control at highwalls is historically done through benching and scaling, neither of which presently occurs in this area of this mine. Further, the mine has worked the area so that the high wall has reached an incredible height. I take notice of a number of MSHA and NIOSH publications that describe highwall stability and generally refer to a wall that is up to 100 feet high as the outer limit of acceptable height. “Good basic design is essential to highwall safety. The height should be limited for stability and to allow scaling.” Christopher Mark Ph.D. & Anthony T. Iannacchione Ph.D., Ground Control Issues for Safety Professionals, in Mine Health and Safety Management 365 (Michael Karmis ed., 2001). The highwall at Pebbly Beach is approximately 300 feet tall, has no benches and, due to its unusual height, the mine has eliminated the possibility of scaling. Mining publications agree that “[r]ock faces should be monitored frequently to check for loose rocks,” such as is done at Pebbly Quarry, but all industry material goes on to recommend that “scaling should be conducted as needed.” Id.

            Connolly-Pacific has not presented evidence that contradicts the specific conditions noted at the quarry and described by Hilde and Vamossy in their testimony. Hilde and Vamossy credibly testified as to the conditions observed and the complete lack of mining methods that were being used to maintain the stability of the wall, bank, and slope. While limited blasting is a recognized method of controlling stability, given the conditions found by the Secretary, blasting is not enough in this instance. While photographs, management observation, and spotters are useful tools, again, they do not maintain the stability of the highwall. For these reasons, I find that the Pebbly Beach Quarry violated the requirements of 30 C.F.R. § 56.3130 at the 480 section of the quarry and uphold the citation.

            2.         Significant and Substantial

            A significant and substantial (“S&S”) violation is described in the Act as a violation “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). 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). The Commission has explained that:

[i]n order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (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) (footnote omitted); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff’g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

            I have already found that there is a violation of the mandatory safety standard; 30 C.F.R. § 56.3130, as alleged by the Secretary. Second, I find that a discrete safety hazard existed as a result of the violations, that is, the danger of rock of various sizes falling or rolling from a height of several hundred feet and striking a loader operator and or his equipment, or striking a blaster or other person standing under the highwall. Third, the hazard described, that of a rock or boulder striking equipment or an employee from a height of several hundred feet, will result in an injury and, fourth, that injury will be serious, or even fatal.

            The difficulty with finding a violation S&S normally comes with the third element of the Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission provided additional guidance:

We have explained further that the third element of the Mathies formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance with the language of section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

This evaluation is made in consideration of the length of time that the violative condition existed prior to the citation, and the time it would have existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987).

            Machado testified that men were on foot below the highwall, and photos show three blasters with a spotter below the 480 north. Resp. Ex. 21, DOL 181, 182, 183. There are cracks in the wall above where they are working. The critical question is not whether the material on the highwall will fall, but when will it fall, thereby making it reasonably likely that rock and material will fall and cause an injury. In most circumstances, a fall will occur when the wall is subjected to weather, earth tremors, blasting and other secondary events. Machado agreed that the mine stayed away from the highwall after a rain. Further, he stayed away from the wall for 24 hours after a blast. Clearly, these precautions are to avoid rolling or falling material. Unfortunately, as Johnson explained, a rainstorm alone cannot predict falling material. It may take several storms and the fall can occur at any time, i.e., days or even weeks after the rainfall. Given the conditions of the wall as observed by the inspector, and the limited precautions taken by the mine, I find that the hazard contributed to, falling material striking miner operated equipment or an actual miner, is at least reasonably likely to occur in the continued course of mining.

            Hilde testified to the hazard of rock coming into the cab of the loader or being large enough to crush the cab of the loader. Further, he testified to the hazard of material falling on those working without benefit of any talus pile below the 480 north. “Most highwall injuries occur when loose pieces of rock fall on workers located below. Small pieces of rock can be dangerous when they fall from great height; even a fist-sized rock caused a recent fatality.” Christopher Mark Ph.D. & Anthony T. Iannacchione Ph.D., Ground Control Issues for Safety Professionals, in Mine Health and Safety Management 365 (Michael Karmis ed., 2001).

            As described above, I have found that a violation of 30 C.F.R. § 56.3130 existed at the Pebbly Beach Quarry where loading operations occurred at the base of a highwall well in excess of one hundred feet where loose and overhanging material were present. By the operator’s own admission, it appears that loading operations have proceeded at the Pebbly Beach Quarry in this manner for many years. Connolly-Pacific’s failure to provide and maintain protective catch benches or appropriate muck/talus piles at the north end of the quarry significantly increases the likelihood of falling rock striking and injuring an employee. The same is true of its inability to scale and bring down loose material before it unexpectedly falls. For these reasons, I uphold the Secretary’s designation of the violation as significant and substantial.

            3.         Negligence

            Inspector Hilde determined that the violation was the result of moderate negligence. I note that Connolly-Pacific does not employ a mining/quarry plan customary in many surface mines and failed to establish protective catch benches clearly outlined in the MSHA Program Policy Manual. However, Connolly-Pacific did establish protective berms in at least some portions of the quarry, conducted routine inspections of the quarry walls, and employed a spotter during mucking operations. Thus, I agree that the operator’s negligence was moderate and assess a penalty of $1,000.00.

b.         Docket No. WEST 2011-1066-RM - Citation No. 8607225

            On May 24, 2011 Inspector Hilde issued Citation No. 8607225 at the Pebbly Beach Quarry for a violation of 30 C.F.R. § 56.3131. The citation, as amended, alleges, in part, the following:

At the south end of the 480 level, a Cat 992 D Loader, Co # 5, was loading under an approximate three hundred foot highwall. The lower approximately seventy feet, containing material that had slid or raveled off the highwall, was at angle of repose of approximately 45 degrees. The slope of the remaining approximate two hundred thirty feet of wall ranged from seventy two to ninety degrees. The top of the wall had loose and unconsolidated materials and boulders and extensive raveling at the perimeter of the quarry wall. The loader was cleaning material that had raveled and slid off the wall. There was also recent activity at the north end of the 480 level where material had been cleaned up under overhanging material. The operator failed to correct conditions at and near the perimeter of the quarry wall that created a fall of material hazard to persons working below.

Inspector Hilde found that a fatal injury was reasonably likely to occur, that one person was affected, that the violation was significant and substantial, and that the violation was the result of moderate negligence. The conditions described in this citation relate to the same highwall discussed in the previous citation.

            1.         The Violation

            Hilde cited a violation of 30 C.F.R. § 56.3131, which requires the following:

In places where persons work or travel in performing their assigned tasks, loose or unconsolidated material shall be sloped to the angle of repose or stripped back for at least 10 feet from the top of the pit or quarry wall. Other conditions at or near the perimeter of the pit or quarry wall which create a fall-of-material hazard to persons shall be corrected.

            The photos taken the day of the inspection show large overhanging rock formations present on the perimeter of quarry wall. The formations are near vertical and the rock has clearly not been stripped back or sloped to the angle of repose. Fracture lines are clearly evident in at least one of the photos. See Resp. Ex. 15, DOL 072. Vamossy noted that the face of the wall had protrusions which could cause falling rock to bounce outward from the highwall. Hilde indicated that the slope of the talus pile at 480 south was probably in good condition, that it was at an angle of repose and, therefore, is not a part of the citation. The focus of this citation is on the highwall above the talus pile in the 480 south and the entire highwall in the 480 north where the talus pile had been completely removed.

            While both expert witnesses testified that the possibility of mass failure at the 480 level was unlikely, Connolly-Pacific’s witnesses testified that smaller rock fall events occurred during rainy conditions and the mine’s expert explained that a number of secondary events can cause rocks to fall or roll off the highwall. The evidence presented by the Secretary demonstrates that persons work or travel under the highwall, particularly the loader who was mucking the talus pile on the south end, and the area in the north end where the talus pile had been completely removed up to the toe of the highwall. The loose and cracked rock on the highwall had not been corrected or sloped back from the face.

            Dr. Johnson’s testimony on behalf of Connolly-Pacific focused on the stability of the talus pile and the unlikelihood of a massive failure. However, he conceded that individual rock falls are an unpredictable process that can occur at any time. The implementation of a spotter during mucking operations appears to have been motivated at least in part by the recognition of the distinct possibility of a rock fall from the perimeter highwall. Thus, I conclude that the Secretary has met her burden of establishing that a rock fall hazard existed at the perimeter of the quarry wall and had not been corrected.

            In determining whether or not these conditions affected active areas of the quarry, I first credit Inspector Hilde’s observation of tire tracks at the base of the north highwall. Additionally, as Connolly-Pacific did not establish protective catch benches or post effective warning signs or berms in the subject areas of the 480 level, I find that the conditions at the perimeter of the highwall were present in “places where persons work or travel in performing their assigned tasks.” Therefore, I find that the Secretary has established a violation of 30 C.F.R. § 56.3131.

            The Contestant also argues that the cited loose material was in fact sloped to the angle of repose, thereby satisfying the standard. While I agree with the Contestant that the talus pile at the base of the 480 south was sloped to the angel of repose, I have already found that loose material, which presented a hazard, existed on the highwall above the talus pile at the 480 south and on the highwall at the 480 north, and was not sloped to the angle of repose. For that reason, I find no merit to the Contestant’s argument.

            2.         Significant and Substantial

            I have previously found that there is a violation of the mandatory safety standard, 30 C.F.R. §56.3131, as alleged by the Secretary. Second, I find that a discrete safety hazard existed as a result of the violation, i.e., the danger of a rock fragment falling from a height of several hundred feet and striking a loader operator and/or his equipment or other employees of the mine near the highwall. Third, the hazard described, a boulder or rock falling from a height of several hundred feet and striking equipment or an employee, will result in an injury and, fourth, that injury will be serious, or even fatal.

            As described above, I have found that a violation of 30 C.F.R. § 56.3131 existed at the Pebbly Beach Quarry where loose and overhanging material was present at the top of a highwall in excess of one hundred feet in height. By the operator’s own admission, it appears that similar highwall conditions have existed at the Pebbly Beach Quarry since at least the last major blasting event in 2004. Connolly-Pacific’s failure to strip back, slope, or perform controlled blasting to remove loose material at the highwall, significantly increases the likelihood of falling rock striking and injuring an employee. The secondary events discussed by both expert witnesses, including earthquakes and rain, can occur at any time, resulting in a rock slides or falling rock. Even with spotters present, the workers are not adequately protected from falling or rolling rock. For these reasons, I uphold the Secretary’s designation of the violation as significant and substantial.

            3.         Negligence

            Inspector Hilde determined that the violation was the result of moderate negligence. Connolly-Pacific conducted routine inspections of the quarry walls, employed a spotter during mucking operations, and made some attempt to control the highwall with blasting. Thus, I agree that the operator’s negligence was moderate and assess a penalty of $550.00.

c.         Docket No. WEST 2011-1067-RM - Citation No. 8607226

            On May 24, 2011 Inspector Hilde issued Citation No. 8607226 at the Pebbly Beach Quarry for a violation of 30 C.F.R. § 56.3200. The citation, as amended, alleges, in part, the following:

At the south end of the 480 level, a Cat 992 D Loader, Co # 5, was loading under an approximate three hundred foot highwall. The lower approximate seventy feet, containing material that had slid or raveled off the highwall, was at angle of repose of approximately 45 degrees. The slope of the remaining approximate two hundred thirty feet of wall ranged from seventy two to ninety degrees. The top of the wall had loose and unconsolidated material and there was a rock at the top that appeared fractured with loose rocks overhanging the slope. The operator failed to post or restrict access to the area under the south end at the 480 level where hazardous conditions existed before permitting work in the area. The operator also failed to restrict or post an area at the north end of the 480 level where material had been cleaned up to the base of the highwall under overhanging material. The north end of the highwall was not attended and there was vehicle traffic going past this area.

Inspector Hilde found that a fatal injury was reasonably likely to occur, that one person was affected, that the violation was significant and substantial, and that the violation was the result of moderate negligence. The conditions described in this citation relate to the same highwall discussed in the previous two citations.

            1.         The Violation

            Hilde cited a violation of 30 C.F.R. § 56.3200, which requires the following:

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

Since I have already determined that a hazard did exist, see discussion supra, the violation is established. The operator does not dispute that there was no posting or barricade in the area below both the 480 north and the 480 south. In fact, one of the witnesses, Scott, said that the mine had intended to extend the berm that was currently in place between the 480 north and south to the 480 north section, but they simply hadn’t had enough time before the inspector arrived. I take this to indicate that the mine understood that there was a hazardous condition at the 480 north. Scott testified that employees were told not to enter the area, but it had not yet been barricaded.

            “[B]efore finding an operator in violation of section 56.3200, it is only proper that conditions be shown to pose a danger from an objective standpoint.” Shine Quarry Inc., 17 FMSHRC 1397, 1401 (Aug. 1995) (ALJ). I have already found that hazardous ground conditions, including loose overhanging material at the highwall perimeter and the absence of protective catch benches, were present at the 480 level of the Pebbly Beach Quarry and constituted violations of 30 C.F.R.§§ 56.3130 and 56.3131. Accordingly, I find that “ground conditions that created a hazard” were present at the Pebbly Beach Quarry and provide a sufficient basis for the issuance of a section 56.3200 citation in the absence of effective warnings or barriers. As discussed more fully above, I do not accept Johnson’s view that a hazard is created only after a secondary event has taken place. A secondary event is not predictable and, in the case of rain, it is not known how much rain must fall or how often the rain must occur in order for rock to slide or fall, nor is it known how long an amount of rain will continue to impact the highwall after the rain has ceased to fall.

            Inspector Hilde credibly testified that the protective berm along the haul road did not adequately extend to either the north or south end of the 480 pit level. As previously noted, I credit Inspector Hilde’s testimony that tire tracks were present at the toe of the north highwall, thereby indicating recent operations in this area.

            Connolly-Pacific has not presented evidence contending that warnings were posted at these areas. It also has not argued that it posted an employee to direct traffic away from these areas. Connolly-Pacific has offered portions of their Ground Control and Spotter Training Manual that it contends adequately educated employees on the dangers of entering areas with hazardous conditions. I first note that, while training materials such as these may speak to an operator’s level of negligence, if any, regarding a particular violation, they are not substitutes for the specific requirements of 30 C.F.R. § 56.3200 that mandate barricades and/or warning signs in hazardous areas. Additionally, while Scott’s testimony regarding the intention to build a berm at the 480 north seems to indicate the acknowledgment of a hazard, it appears that Connolly-Pacific employees did not consider the north end of the highwall hazardous given that there were tire tracks that indicated mucking operations had occurred at the base of the highwall. For these reasons, I find that the Secretary has established that a violation of 30 C.F.R. § 56.3200 existed at the Pebbly Beach Quarry on May 24, 2011.

            The operator argues that the three citations discussed above are duplicative in nature and that, “in the event that Citation No. 8607224 is sustained, . . . at a minimum, Citations No. 8607225 and 8607226 should be vacated because they are duplicative.” Cont. Br. 23. However, although it is obvious that the hazard referenced in the language of section 56.3200 is conditioned upon a separate ground control violation, the Commission has held that 56.3200 is not a duplicative regulation and has stated the following:

[T]he requirements of sections 56.3200 and 56.3130 are different. Section 56.3130 requires that an operator use mining methods that maintain wall stability and sets forth additional requirements if benching is necessary. In contrast, section 56.3200 requires that, if a hazardous ground condition occurs, it be corrected and entry into the area be restricted until corrective work is completed. The standards are related in that an operator’s failure to mine in a way that maintains stability may also result in a hazardous condition requiring an operator to restrict access until the hazardous condition is corrected. As the Commission has recognized:

[t]he 1977 Mine Act imposes a duty upon operators to comply with all mandatory safety and health standards. It does not permit an operator to shield itself from liability for a violation of a mandatory safety standard simply because the operator violated a different, but related, mandatory standard.

El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (January 1981). Cyprus Tonopah Mining Corp., 15 FMSHRC at 378. Just as section 56.3200 is not duplicative of section 56.3130 since it requires a “separate and distinct dut[y] upon the operator,” section 56.3131 is also not duplicative, as it also requires a separate and distinct duty, i.e., the sloping of loose or unconsolidated material to the angle of repose or the stripping back of material for at least 10 feet from the top of the pit or quarry wall in areas where miners work or travel while performing assigned duties. Id. at 378; 30 C.F.R. § 56.3131. For these reasons, I find the Contestant’s argument to be without merit.

            2.         Significant and Substantial

            I have found that there is a violation of the mandatory safety standard, i.e., 30 C.F.R. § 56.3200, as alleged by the Secretary. Second, I find that a discrete safety hazard existed as a result of the violation; i.e., the danger of an employee entering an unmarked or unbarricaded area with hazardous ground conditions and being struck by a falling or rolling rock. Third, the hazard described, that of rock falling from a height of several hundred feet and striking equipment or an employee in the unmarked and unbarricaded area, will result in an injury and, fourth, that injury will be serious, or even fatal.

            As described above, I have found that a violation of 30 C.F.R. § 56.3200 existed at the Pebbly Beach Quarry where barriers or warnings were not adequately established at areas with hazardous ground conditions. By the operator’s own admission, it appears that employees have been allowed to operate in areas with hazardous ground conditions in this manner for a number of years. Connolly-Pacific’s failure to adequately berm or post warning signs at areas with hazardous ground conditions significantly increases the likelihood of an employee entering a hazardous area and being struck by falling rock. For these reasons, I uphold the Secretary’s designation of the violation as significant and substantial.

            3.         Negligence

            Inspector Hilde determined that the violation was the result of moderate negligence. I note that Connolly-Pacific did establish protective berms in at least some portions of the quarry, trained employees in recognizing hazardous ground conditions, and employed a spotter during mucking operations in an attempt to warn operators of rock fall events. However, Scott agreed that the 480 north area should have been bermed to prevent travel in that area, but the mine had simply not gotten around to constructing that berm before the inspector arrived. There is no indication that it was scheduled to be built, however, Scott’s testimony shows that the mine was aware of the necessity. Thus, it is difficult to agree that the negligence was moderate and I assess a penalty of $1,000.00.

d.         Docket No. WEST 2011-1064-RM - Order No. 8607223

            On May 24, 2011, Inspector Hilde issued section 107(a) withdrawal Order No. 8607223 directing Connolly-Pacific to cease mining operations in the referenced areas upon the basis of the three citations discussed above. Section 107(a) of the Mine Act provides:

If, upon any inspection or investigation of a coal or other mine which is subject to this Act, an authorized representative of the Secretary finds that an imminent danger exists, such representative shall determine the extent of the area of such mine throughout which the danger exists, and issue an order requiring the operator of such mine to cause all persons, except those referred to in section 104©, to be withdrawn from, and to be prohibited from entering, such area until an authorized representative of the Secretary determines that such imminent danger and the conditions or practices which caused such imminent danger no longer exist. The issuance of an order under this subsection shall not preclude the issuance of a citation under section 104 or the proposing of a penalty under section 110.

30 U.S.C. § 817(a).

            When Hilde arrived at the Pebbly Beach Quarry on May 24, 2011, he observed quarry walls ranging up to at least 300 feet in height without any benches. Further, he observed loose and overhanging rock at the top perimeter of the quarry walls and tire tracks at the toe of highwall. Hilde inquired of mine management and was informed by Connolly-Pacific that no mining plan or geologic study of the area was in use. He learned that the protective measures implemented by Connolly-Pacific were limited to visual pre-shift quarry wall inspections from the base of the pit, weekly inspections from the top of the wall, the incomplete catch berm along the haul road that failed to extend to the north and south ends of the 480 level, the protective cab of the 992 Cat Loader, limited blasting, and the use of a spotter to warn the loader operator of falling rock after it began to slide, fall or roll. Hilde could see that the area had no benches and learned that scaling was not conducted at the mine, primarily due to the extreme height of the highwall. He inquired about protective measures, asked for studies, and sought any tools or measuring devices the mine might utilize to maintain the highwall. He received little, if any, information. Hilde was informed that the mine employs coyote blasting but that it had not been done for a number of years. He also learned that the mine used gravity, watched the areas, and allowed the rock to fall. Given his observations, his conversations with Vamossy, and the information learned from the mine, it was his understanding that the highwall was not only a hazard, but that it was an immediate hazard. The photos taken by Hilde and Vamossy bear out their initial thoughts about the highwall.

            Section 3(j) of the Act defines “imminent danger” as the “existence of any condition or practice in a coal or other mine which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.” 30 U.S.C. § 802(j). As previously noted, section 107(a) of the Act provides for the issuance of an order requiring the withdrawal of persons in areas of a mine who are exposed to such an imminent danger.

Imminent danger orders permit an inspector to remove miners immediately from a dangerous situation, without affording the operator the right of prior review, even where the mine operator did not create the danger and where the danger does not violate the Act or the Secretary’s regulations. This is an extraordinary power that is available only when the “seriousness of the situation demands such immediate action.”

Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991) (quoting Sen. Rep. No. 91-411, reprinted in Senate Subcomm. On Labor, Comm. on Labor and Public Welfare, Part I Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at 215 (1975).

            An imminent danger exists “when the condition or practice observed could reasonably be expected to cause death or serious physical harm to a miner if normal mining operations were permitted to proceed in the area before the dangerous condition is eliminated.” Eastern Associated Coal Corporation v. IBMA, 491 F.2d 277, 278 (4th Cir. 1974). The Seventh Circuit adopted the same interpretation in Old Ben Coal Corp. v. IBMA, 523 F.2d 25, 33 (7th Cir. 1975). See also Wyoming Fuel Co., 14 FMSHRC 1282, 1290 (Aug. 1992) (quoting Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989)). While the concept of imminent danger is not limited to hazards that pose an immediate danger, “an inspector must ‘find that the hazardous condition has a reasonable potential to cause death or serious injury within a short period of time.’” Cumberland Coal Resources, LP, 28 FMSHRC 545, 555 (Aug. 2006) (quoting Utah Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991)). Inspectors must determine whether a hazard presents an imminent danger without delay, and a finding of an imminent danger must be supported “unless there is evidence that [the inspector] had abused his discretion or authority.” Rochester & Pittsburgh Coal Co., 11 FMSHRC at 2164. While an inspector has considerable discretion in determining whether an imminent danger exists, that discretion is not without limits. An inspector must make a reasonable investigation of the facts, under the circumstances, and must make his determination on the basis of the facts known, or reasonably available to him. As the Commission explained in Island Creek Coal Co., 15 FMSHRC 339, 346-347 (Mar. 1993):

While the crucial question in imminent danger cases is whether the inspector abused his discretion or authority, the judge is not required to accept an inspector’s subjective “perception” that an imminent danger existed. Rather, the judge must evaluate whether, given the particular circumstances, it was reasonable for the inspector to conclude that an imminent danger existed. The Secretary still bears the burden of proving [her] case by a preponderance of the evidence. Although an inspector is granted wide discretion because he must act quickly to remove miners from a situation that he believes to be hazardous, the reasonableness of an inspector’s imminent danger finding is subject to subsequent examination at the evidentiary hearing.

An inspector “abuses his discretion . . . when he orders the immediate withdrawal of miners under section 107(a) in circumstances where there is not an imminent threat to miners.” Utah, Power & Light Co., 13 FMSHRC at 1622-23. In assessing an inspector’s exercise of his discretion, the focus is on “whether the inspector made a reasonable investigation of the facts, under the circumstances, and whether the facts known to him, or reasonably available to him, supported the issuance of the imminent danger order.” Wyoming Fuel Co., 14 FMSHRC 1282, 1292 (Aug. 1992).

            The critical question in determining whether a highwall presents an imminent danger is whether there is a condition on the highwall such that rock or debris could reasonably be expected fall or roll within a short period of time, thereby resulting in death or serious injury. Within the above framework of law and the evidence of record, I find that the inspector did not abuse his discretion in issuing the imminent danger order. Given the conditions that both Hilde and Vamossy observed, and the information they learned as a result of their inquiries, it is reasonable to believe that a fall of rock or debris was imminent, thereby threatening the safety of the miners working below. The expert testimony offered by Dr. Johnson criticizes Hilde’s decision to issue the withdrawal order after observing the 480 level for only five minutes. However, the conditions described above were readily apparent and Connolly-Pacific site personnel confirmed that these conditions were consistent with the de facto quarrying method in operation at this level. Finally, the conditions described at the 480 level fail to conform to the most basic methods of industry accepted highwall maintenance, which would reasonably lead Hilde to believe that an imminent danger existed. For the reasons above, I uphold the issuance of Order No. 8607223.

            The Contestant relies upon my decision in Cargill Deicing Tech., 32 FMSHRC 1848, 1852 (Dec. 2010), and argues that the inspectors’s “visual inspection was not well-informed and [was] based on erroneous or incomplete information,” and, therefore, because “an inspector’s visual inspection of loose gravel is not per se sufficient evidence to prove a hazard,” no hazard has been shown and no imminent danger existed. Cont. Br. 15. I have already discussed the hazard that existed in this case, and, while a visual inspection may not per se prove the existence of a hazard, I find that the preponderance of the evidence does establish the presence of hazard which presented an imminent danger.

III. PENALTY

            A penalty of $555.00 has been proposed for each of the three citations contested by the mine operator and discussed above. Although this was initially an expedited notice of contest case, the parties agreed to address the issue of the penalty at hearing and the penalty docket has subsequently been assigned to me and is now been joined with the contest dockets.

            The principles governing the authority of Commission administrative law judges to assess civil penalties de novo for violations of the Mine Act are well established. Section 110(I) of the Mine Act delegates to the Commission and its judges the authority to assess all civil penalties provided in [the] Act. 30 U.S.C. § 820(I). The Act delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 C.F.R. § 2700.28. The Act requires that, in assessing civil monetary penalties, the Commission [ALJ] shall consider the 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 on the operator’s ability to continue in business, [5] the gravity of the violation, 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). I accept the stipulation of the parties that the penalties proposed are appropriate to this operator’s size and ability to continue in business. The violations have not yet been abated, but instead the mine has moved to another area to continue its operations. The history shows the past violations at this mine, including citations for the standards discussed above. I have discussed the negligence and gravity associated with each citation above and have assessed the following penalties:

Citation/Order No.                  Amount

8607224                                  $ 1,000.00

8607225                                  $ 550.00

8607226                                  $ 1,000.00

Total:                                      $ 2,550.00

IV. ORDER

            Based on the criteria in section 110(I) of the Mine Act, 30 U.S.C. § 820(I), I assess the penalties listed above and Connolly-Pacific is hereby ORDERED to pay the Secretary of Labor the sum of $2,550.00 within 30 days of the date of this decision.

                                                                                    /s/ Margaret A. Miller

                                                                                    Margaret A. Miller

                                                                                    Administrative Law Judge

Distribution: (Certified Mail)

Susan Seletsky, Office of the Solicitor, U.S. Department of Labor, World Trade Center, Suite 370, 350 S. Figueroa St., Los Angeles, CA 90071-1202

Adele L. Abrams, Law Office of Adele L. Abrams, P.C., 4740 Corridor Pl., Suite D, Beltsville, MD 20705