FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, NW, SUITE 9500

WASHINGTON, DC 20001-2021

TELEPHONE: 202-434-9958 / FAX: 202-434-9949

November 7, 2011

DECISION

Appearances:              Angele Gregory, Esq. and Elizabeth L. Friary, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for Petitioner;

                                    John S. Talbott III, Esq., Lexington, Kentucky, for Respondent.

Before:                        Judge McCarthy

            This case is before me on a petition for assessment of a civil penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against River Sand & Gravel LLC (“River Sand” or “Respondent”), 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”).

I. Statement of the Case

A. Respondent’s Operation

            Respondent operates a small sand and gravel pit near Vanceburg, Kentucky. Resp. to Pet. at 1. The mining operation includes an open pit mine where sand and gravel is excavated from an alluvial deposit three feet below the topsoil, and a processing plant that is used to sort the excavated material. Id. Once the rock material is excavated, it is carried to the top of the plant by conveyor belt and deposited in an inclined screen shaker. (Tr. 35).

            The inclined screen shaker structure is situated at the top of the plant, about thirty feet above ground level. (Tr. 88). The shaker structure is mounted to the top of the processing plant on springs, which allow rotating drive motors to shake the structure and force the rock material to be sorted through a series of polyurethane screens that separate out progressively larger material. (Tr. 35-36, 168). The flat screens are inlayed into a box at approximately a 20% incline. (Tr. 36, 83). A series of four metal spray bars, roughly eight to ten inches above the screens, are positioned across the shaker screen and spray water to control dust and help separate the sand and gravel. (Tr. 41, 169-70). There were no handrails installed around the top of the structure, nor was there any fall-resistant system in place. (Tr. 43).

            The shaker structure is accessed by two catwalks that surround the structure on all sides. (Tr. 83). A catwalk measuring five feet three inches wide encompasses the sides and the higher, incoming end of the shaker. (Tr. 88). The distance between the top of the shaker structure and the catwalk is between five and eight feet. (Tr. 82). Another catwalk measuring four feet nine inches wide encompasses the lower, opposite end of the shaker and is located eleven feet below the structure’s top. (Tr. 82, 88).

B. The Instant Inspection

            On July 21, 2009, MSHA inspector Donald Gabbard conducted a regular inspection of River Sand. (Tr. 28). The mine’s former owner and current foreman, Carey Highfield, accompanied him. (Tr. 23, 154). After completing the morning portion of the inspection, Gabbard informed Highfield that he was adjourning for lunch and would return to continue the inspection later in the afternoon. (Tr. 117).

            Upon returning, Gabbard observed a miner, Nathan Conley, standing atop the lower end of the plant’s shaker structure. (Tr. 34). Although the plant was shut down and the shaker was not operating, Gabbard concluded that it was not safe for a miner to work on the top of the shaker without fall protection. (Tr. 129). Not wanting to startle Conley by yelling at him, Gabbard went to look for Highfield to help resolve the situation. (Tr. 34). By the time Highfield was found, however, Conley had descended from the shaker screen structure onto the catwalk below. (Tr. 39). Accordingly, no imminent danger warning was issued. (Tr. 40).

            Following Conley’s descent from the top of the shaker screen box, Gabbard spoke with him about what he had just observed. (Tr. 48). Conley informed Gabbard that he had accessed the top of the shaker structure to inspect the condition of the screens because oversized rocks had been coming through to the stockpile. (Tr. 42). Conley stated that such inspections were always conducted without fall protection. (Tr. 58). He further stated that even though he was apprehensive about working at that height without being tied off, he did not want to be the only worker that insisted on having a harness system in place. (Tr. 58). Conley did not testify. I credit Gabbard’s account of what Conley told him.  

            Next, Gabbard discussed with Highfield the practice of accessing the top of the shaker without fall protection. (Tr. 60). Highfield indicated that the shaker screens were routinely inspected every three months and were changed annually. (Tr. 56). In addition to normal maintenance, miners would inspect the screens whenever oversized rocks made it through to the stockpile. (Tr. 55-56). While the polyurethane screens are not heavy, replacement screens had to be lifted, hoisted, boomed, or craned up to the top of the shaker assembly where a small number of miners would switch out the screens. (Tr. 38, 168). Additionally, Highfield stated that he had, on previous occasions, personally accessed the top of the shaker structure to inspect and change the screens without the aid of any fall protection. (Tr. 61-62). Highfield justified this practice by saying that the procedure was “common practice” and was the way they always changed screens. (Tr. 60). Highfield testified and did not contradict Gabbard’s account of what Highfield told Gabbard.

            After talking to both Conley and Highfield, Gabbard concluded that the practice he witnessed violated 30 C.F.R. § 56.15005, which requires that “safety belts and lines shall be worn when persons work where there is danger of falling.” Gabbard issued Citation No. 6518754 finding that the practice was an unwarrantable failure and the result of a high level of negligence that was reasonably likely to cause fatal injuries. G. Ex. 1. In addition, the citation was designated as a significant and substantial violation. Id. The condition or practice section of the citation states:

A miner was observed working atop the inclined shaker screen where there was a potential to fall while not wearing fall protection. A fall of up to 34 feet to the ground below was possible. The miner removed himself from the unsafe location before an oral imminent danger order could be issued to his supervisor or the miner. The supervisor, Carey Highfield, was not present with the MSHA AR while this activity was observed. When supervisor Highfield was notified of the actions of the miner, he admitted this was a common practice. This violation is an unwarrantable failure to comply with a mandatory safety standard. Supervisor Highfield engaged in aggravated conduct in that he was aware that miners regularly worked atop the screen deck while not using fall protection and did not prevent them from doing so.

            While continuing his inspection of River Sand the next day, Gabbard was accompanied by Tim Lutz, who introduced himself as the safety man for the Walker Company. (Tr. 50, 146). Highfield informed Gabbard that the Walker Company had a partial ownership interest in River Sand and that Lutz was the proper person to accompany Gabbard during the rest of the inspection process. (Tr. 123, 145). Lutz and Gabbard discussed the safety issues that had come to light during River Sand’s inspection. (Tr. 144). Lutz agreed that the practice of accessing the top of the shaker structure without fall protection was an obvious violation of MSHA regulations that should have been recognized by the operator. (Tr. 51, 122).

            In accordance with Gabbard’s recommendations, Highfield installed a cable across the length of the center of the shaker, which would allow a miner to attach a movable anchor point and secure a safety rope. (Tr. 98, 179). Satisfied that the citation was abated, Gabbard terminated the citation. (Tr. 98). A few hours later, however, Highfield reported trouble maneuvering the safety rope around the spray bars. (Tr. 179). Highfield concluded that the current configuration was not workable. (Tr. 179). Highfield called River Sand’s manager, Nathan Roush, and received permission to install handrails around the sides of the shaker structure. Id. The handrails, and a ladder providing access to the top of the shaker structure, were completed the following weekend. (Tr. 180).

C. The Parties’ Witnesses

            On June 20, 2011, I held a hearing in Lexington, Kentucky. The Secretary called Gabbard to testify about the events leading up to the issuance of the citation and to the rationale behind his findings. At the time he issued the citation, Gabbard concluded that a fall from the top of the shaker structure would likely result in a thirty-four foot drop to the ground. After further inspection and contemplation following the issuance of the citation, however, Gabbard revised his assessment to account for the possibility that the catwalks surrounding the shaker structure would break the miner’s fall. (Tr. 84, 88). Thus, at the hearing, Gabbard testified that the greatest likelihood of injury comes from the risk of a miner falling head first over the end plate that extends nineteen inches above the lower end of the screen shaker. (Tr. 84). Gabbard testified that such a fall would result in the miner falling eleven feet to the catwalk below and would likely cause fatal, “spinal-type” injuries. (Tr. 84). Gabbard further testified that the incline of the shaker and the elevated spray bars created an additional risk that a miner would fall off the side of the structure. (Tr. 85). The record establishes that if a miner fell from the highest point of the inclined shaker, he would fall eight feet to the catwalk below and would likely receive fatal “spinal-type” injuries or fracture bones in the neck, back, legs, or arms. Id. If a miner fell from the lowest point of the inclined shaker, he would only fall five feet onto the catwalk, which would likely result in less serious bone fractures. Id.

            Respondent called Highfield and Roush to testify. Both men stated that adequate steps had been taken to ensure compliance with MSHA regulations. Highland testified that through his prior experience in the mining industry, he understood MSHA regulations to require fall protection for miners at risk of falling six feet or more. (Tr. 176). According to Highland, all of the miners at River Sand were trained in the use of fall protection and there was more than enough fall protection equipment for all of the miners at the plant. (Tr. 177-78). In addition, Roush and Highfield established that River Sand had received biannual inspections from MSHA since 2006, and had been inspected by MSHA and by an in-house safety inspector before production started. (Tr. 200, 203, 206). Neither Highfield nor Roush could recall any inspector raising an issue with the practice of miners working on the shaker structure without fall protection. (Tr. 200, 207-08).

II. Violation of Mandatory Safety Standard

            30 C.F.R. § 56.15055 states in relevant part that “safety belts and lines shall be worn when persons work where there is a danger of falling.” In the present case, there is no dispute that Conley was not using fall protection while atop the inclined shaker structure. Therefore, I must decide whether a “danger of falling” existed for miners working atop the structure. The Commission has stated that a danger of falling exists when “an informed reasonably prudent person would recognize a danger of falling warranting the wearing of safety belts and lines.” Great Western Electric Co., 5 FMSHRC 840, 842 (May 1983). While River Sand argues that such a standard is vague, the “reasonable person” standard is a common legal fiction used in various areas of law to deduce the standard of care owed based on the particular factual circumstances surrounding a case. If applied consistently, the standard provides a clear, subjective metric in which to determine the appropriate behavior to comply with a regulation.

            It is clear from the record, that a reasonably prudent person would recognize the inherent danger of falling from the inclined shaker. The top of the shaker structure was between five and eleven feet above the catwalks that provide access to the structure, and more than thirty feet above ground level. (Tr. 82, 88). There were no railings encompassing the top of the structure to help a miner maintain his balance or to stop a fall over the edge. (Tr. 43). Furthermore, a reasonable person should have taken notice of the numerous hazards that could potentially cause a miner to fall. Such hazards include the 20% incline of the surface, the raised metal spray bars, the nineteen-inch end plate, and the raised sides of the shaker box.

            In addition, Conley, Lutz, and Highfield recognized, or should have recognized, the risk of falling. Conley stated that he did not feel safe working atop the shaker structure, but was wary about being perceived as the only miner who insisted on having fall protection. (Tr. 48, 58). Lutz reportedly told Gabbard that the practice “was very much in violation and it should have been recognized.” (Tr. 122). Although Highfield stated that he did not feel that fall protection was necessary, he provided testimony stating that, based on his years of experience in the mining industry, he understood MSHA regulations to require a miner to be tied off when working at a height of six feet. (Tr. 176, 187). Given that a miner working atop the shaker structure could have fallen up to eleven feet to the catwalk or, less likely, more than thirty feet to the ground, the practice of accessing the top of the shaker structure without fall protection did not even meet Highfield’s own understanding of MSHA’s regulations.

            Furthermore, falling while changing screens is a hazard that is fairly well known in the gravel industry, and already this year, MSHA has issued a Fatalgram attributing the death of an experienced miner to falling while changing screens at a sand and gravel operation in New York. MSHA, Fatalgrams and Fatal Investigation Reports (Dep’t of Labor 2011), http://www.msha.gov/fatals/2011/fab11m10.pdf. In 2006, ALJ Manning pointed out that, “MSHA has issued safety alerts to mine operators about this hazard.” Spencer Quarries Inc., 2006 WL 3832827 (Nov. 9, 2006). Thus, a reasonably informed and prudent individual should have been aware of the danger of the violative practice.

            River Sand argues that fall protection was available to miners and that all miners were trained in its use. Resp’t Br. at 7. This fact, however, does not absolve River Sand from its responsibility to require fall protection where there exists a danger of falling, nor does it mitigate against the seriousness of the violative practice. The Commission has ruled that this standard must be actively enforced by the mine operator and not simply left to the discretion of an individual miner. See, e.g., Southwestern Illinois Coal Corp., 5 FMSHRC 1672, 1675 (Oct. 1983). The mine operator is tasked with establishing a safety system requiring the use of fall protection and enforcing such system when there exists a reasonable risk of falling. Id. River Sand not only failed to provide adequate guidelines for its miners, but set an improper example for the violative practice through the conduct of its agent, Foreman Highfield, who admitted that he never used fall protection while accessing the top of the shaker structure. (Tr. 168).

            In light of the foregoing, I fail to see how a reasonably prudent person could not recognize working on the shaker structure posed a danger of falling to a miner. As such, I affirm MSHA’s determination and find that River Sand was in violation of the mandatory safety standard embodied in 30 C.F.R. § 56.15055.

III. Significant and Substantial Designation

            Section 104(d)(1) of the Mine Act defines a significant and substantial (S&S) violation 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.” The Commission has required that a S&S violation be supported by facts that establish 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). In Mathies Coal Co., the Commission created a four-prong test to establish the S&S designation:

In 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 of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g, 9 FMSHRC 2015, 2021 (Dec. 1987) (approving the Mathies criteria). In US Steel Mining, 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission further explained:

[T]he 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).

            As articulated above, the practice of allowing miners to access the top of the shaker structure without fall protection is a violation of a mandatory safety standard and thus satisfies the first element of the Mathies test. Furthermore, the Secretary has proven the second element by demonstrating a discrete safety hazard, in that miners were occasionally subject to an unacceptable risk of falling that was not properly mitigated through the use of fall protection or guardrails.

            As to the third and fourth elements of the Mathies test, the Secretary contends that miners accessing the top of the shaker were reasonably likely to fall and incur injuries ranging from fractured bones, spinal damage, or death. Given that numerous tripping hazards created an elevated risk of falling, I find it reasonably likely that a miner could fall from atop the shaker structure. While replacing or inspecting screens, a miner could easily catch his foot on the spray bars, the sides of the shaker box, or the elevated end plate, and the incline of the surface would likely hamper a miner’s ability to regain his balance.

            I also agree with the Secretary that it is reasonably likely that a fall from atop the shaker structure could be fatal. After personally inspecting the shaker assembly, Gabbard concluded that given the incline of the shaker and the elevated end plate, a miner would most likely fall head first off the lowest side of the shaker and fall eleven feet onto the catwalk below. (Tr. 84, 88). Additionally, while Gabbard deemed it less likely, he never completely dismissed his initial assertion that there existed a chance that a fall from the top of the shaker structure could result in a miner falling thirty feet to the ground. (Tr. 88). In either case, it is reasonably likely that a fall from eight, eleven, or thirty feet would result in fatal injuries, and this finding is consistent with both the recent ALJ decisions and the history of fatalities reported by MSHA.

            Having satisfied all four prongs of the Mathies test, I find that the citation at issue was properly designated as significant and substantial.  

IV. Unwarrantable Failure Principles

             The Secretary bears the burden of proving all elements of the 104(d)(1) citation by a preponderance of the evidence. The Secretary must prove that the Respondent’s failure to require miners to use fall protection while accessing the top of the inclined screen shaker was “aggravated conduct” after considering all the relevant facts and circumstances, as set forth in Commission precedent. Having duly considered such factors, I find that the Secretary established by a preponderance of the evidence that Respondent exhibited “serious lack of reasonable care” in failing to require the use of fall protection for miners working atop the inclined screen shaker.

            The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d). It refers to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test).

            The Commission has recognized that whether conduct is “aggravated” in the context of unwarrantable failure is determined by considering the facts and circumstances of each case to determine if any aggravating or mitigating circumstances exist. Aggravating 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 were necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation was obvious or posed a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) (“Consol”); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 43 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). A judge may determine, in his discretion, that some factors are not relevant, or may determine that some factors are much less important than other factors under the circumstances. IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009). I discuss below, the applicability, vel non, of all of the relevant factors.

A. The Extent of the Violative Condition or Practice

             The Commission has viewed the extent of a violative condition as an important element in the unwarrantable failure analysis. IO Coal Co., 31 FMSHRC 1346, 1351-52 (Dec. 2009). This factor considers the scope or magnitude of the violation. See Eastern Associated Coal, 32 FMSHRC at 1195 (citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992)); Quinland Coals, Inc., 10 FMSHRC 705, 708 (June 1988). Here, the extent of the violation at issue is rather limited in scope. The area atop the shaker structure is only a small section of the processing plant, measuring about ninety-six square feet, and Gabbard testified that only falls from the incoming or outgoing sides would likely result in fatal, “spinal-type” injuries. From all indications, River Sand properly practiced the use of fall protection elsewhere in the plant and other areas where miners could potentially face fall hazards were properly contained by handrails. (Tr. 177; see G. Ex. 6; Res. Ex. 1-4).

            Another relevant consideration in determining whether the violation is extensive is the abatement measures taken to terminate the relevant citation. Eastern Associated Coal, 32 FMSHRC at 1196; Peabody Coal Co., 14 FMSHRC at 1263 (providing that extensiveness can be shown by condition that requires significant abatement efforts). The measures taken by Highfield to abate the citation were relatively minor and took only half an hour to complete. Even though River Sand ultimately decided that it would be better to install handrails along the top of the structure, Gabbard found that installing a cable lengthwise across the top of the shaker structure was all that was needed to terminate the citation.

            The Secretary argues that this factor should support the finding of an unwarrantable failure “given the number of times [the] location was accessed, the number of miners accessing it, and the number of years over which the violation occurred.” Sec’y. Br. at 24. The top of the shaker, however, was accessed only periodically and when it was, only one or two miners accessed the top of the shaker structure at a time. The duration of the violative practice is a separate factor in the unwarrantable failure analysis, and thus should be examined independently of the extensiveness factor. Accordingly, on balance, I find that the extensiveness factor weighs against the finding of unwarrantable failure.  

B. The Duration

             The Commission has emphasized that the duration of the violative condition or practice is a necessary element of the unwarrantable failure analysis. See, e.g., Windsor Coal Co., 21 FMSHRC 997, 1001-04 (Sept. 1999) (remanding for consideration of duration evidence of cited conditions). The duration of the practice in the present case was especially egregious. The practice of accessing the top of the shaker structure without fall protection was “common practice” according to Foreman Highfield. (Tr. 60). As such, the practice presumably was established since the plant began operation in 2006. (Tr. 167). River Sand offered no evidence to the contrary. Three years provided River Sand with ample time to identify the danger to miners working atop the shaker structure and provide for measures to counteract the risk. Even though the plant’s foreman was intimately familiar with the practice, however, nothing was done during that time to provide miners adequate fall protection.

            Accordingly, I find that the duration of the violation weighs heavily toward a finding of unwarrantable failure.

C. Whether Respondent Was Placed on Notice that

Greater Compliance Efforts Were Necessary

             The Commission has stated that repeated, similar violations are relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with a standard. IO Coal, 31 FMSHRC at 1353-55; Amax Coal Co., 19 FMSHRC 846, 851 (May 1997); see also Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001). The purpose of evaluating the number of past violations is to determine the degree to which those violations have “engendered in the operator a heightened awareness of a serious . . . problem.” San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007) (citing Mid-Continent Res. Inc., 16 FMSHRC 1226, 1232 (June 1994)). The Commission has also recognized that “past discussions with MSHA” about a problem “serve to put an operator on heightened scrutiny that it must increase its efforts to comply with the standard.” Id. (citing Consolidation Coal, 23 FMSHRC at 595).

            The Secretary has conceded that River Sand did not have a history of violating § 56.15055. Sec’y. Br. at 25. In addition, River Sand claims that both MSHA and private inspectors have never provided any warnings concerning the danger of miners falling from atop the shaker structure. (Tr. 200, 207-08). As such, River Sand was never put on notice that greater compliance efforts were necessary.

            The Secretary points out that it would be unlikely that MSHA inspectors would observe the infrequent access to the top of the shaker structure during their biannual inspections. Thus, the Secretary argues, this factor should be neutral in the unwarrantable failure analysis. Sec’y. Br. at 25. However, MSHA inspectors should be familiar enough with the sand and gravel industry to know that routine maintenance of shaker screens requires miners to have access to the top of the structure. During the preliminary inspection and subsequent biannual inspections, MSHA inspectors should have at least inquired as to how workers accessed and worked on the top of the shaker structure, even if they did not actually observe the practice. Accordingly, this factor mitigates against a finding of unwarrantable failure.

D. Whether the Violation Posed a High Degree of Danger

            The Commission has relied upon the high degree of danger posed by a violation to support an unwarrantable failure finding. See, e.g., BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, 10 FMSHRC at 709. As determined in the S&S analysis, supra, there exists a reasonable likelihood that a miner falling from atop the shaker structure would suffer serious injuries that could prove fatal. Miners working atop the shaker structure were at significant risk of falling between five and eleven feet onto the surrounding catwalks, and while less likely, a risk of falling more than thirty feet to the ground below. This risk was exacerbated by the fact that there were multiple hazards over which a miner could easily trip. Gabbard testified that falls from eight to eleven feet could result in serious “spinal-type” injuries, bone fractures, or death. (Tr. 84-85). Accordingly, this factor weighs in favor of a finding of unwarrantable failure.

E. The Operator’s Knowledge of the Existence of the Violation

            An operator’s knowledge of the existence of a violation is another factor in the unwarrantable failure analysis. Emery Mining Corp., 9 FMSHRC 1997, 2002 (Dec. 1987). The Commission has found that where an agent of the operator has knowledge or should have knowledge of a safety violation, such knowledge should be attributed to the operator. See Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000); Pocahontas Fuel Co., 8 IBMA 136, 147 (Sept. 1977), aff'd, 590 F.2d 95 (4th Cir. 1979) (Coal Act case) (adopting the common law principle that the acts or knowledge of an agent are attributable to the principal). In addition, a mine supervisor or foreman is held to a high standard of care and the Commission has found that his involvement in a violation is an important factor in the unwarrantable failure analysis. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

            In the case at bar, it is apparent that Highfield, in his role as mine foreman, was an agent of River Sand. Highfield was introduced to Gabbard as the designated representative of the operator and described his position as managerial in nature. (Tr. 32, 161). As the operator’s representative, Highfield’s knowledge of and participation in the practice of accessing the top of the shaker structure without wearing fall protection is particularly troubling. Having participated in the unsafe practice himself, Highfield’s actions set an improper example for other miners to disregard a mandatory safety standard. (Tr. 168). Conley told Gabbard that one of the reasons he did not elect to wear fall protection was that he did not want to be the only miner that insisted on additional safety procedures while working atop the shaker structure. (Tr. 58). Highfield’s actions, in light of the fact that he believed that MSHA regulations required fall protection at heights greater than six feet, manifests at least a serious lack of reasonable care if not outright indifference to the safety of the miners under his supervision.

            Furthermore, other agents of River Sand present at the property should have been aware of the practice. Gabbard testified that the top of the shaker structure was the highest point in the plant and “highly visible” and that people working on the property should have been able to see miners working up there without fall protection. (Tr. 90-91, 96). Accordingly, in the circumstances of this case, I find that the knowledge of the operator weighs heavily toward a finding of unwarrantable failure.

F. The Operator’s Efforts in Abating the Violation

            An operator's effort to abate the violative condition is a factor relevant to determining whether a violation is unwarrantable. The level of priority that the operator places on the abatement of the problem is only relevant, however, when the operator has been placed on notice of a problem. IO Coal, 31 FMSHRC at 1356 (citing Enlow Fork Mining Co., 19 FMSHRC 5, 17 (Jan. 1997)). Thus, the focus on the operator's abatement efforts is on those efforts made prior to the citation at issue. Id. Since there is no evidence showing that River Sand was ever put on notice that their practice violated a mandatory safety standard prior to the instant citation, I find this factor neutral in the unwarrantable failure analysis.

G. Conclusion on Unwarrantable Failure Issue

            In sum, after considering the relevant Commission factors, I find that the violative condition was dangerous, obvious, and lengthy. The operator, through his agent Highfield, not only knew that miners were accessing the top of the shaker structure without fall protection, but condoned the practice. In the three years the plant was in operation, agents of River Sand should have recognized the obvious risk to miners working on an elevated platform without fall protection or handrails. In addition to Inspector Gabbard’s determination that the practice was unsafe, Conley expressed apprehension about working in such conditions, and the practice violated Highfield’s own understanding of when fall protection was required. When presented with Gabbard’s findings, even Lutz, River Sand’s acting safety man, conceded that the violation was apparent and should not have gone noticed. Under these circumstances, I find that the citation was properly designated as an unwarrantable failure.

V. Explanation for Civil Penalty Assessed

            Section 110(i) of the Mine Act sets forth the following criteria to be considered in determining an appropriate civil penalty:

The operator's history of previous violations, the appropriateness of such penalty to the size of the business of the operator charged, whether the operator was negligent, the effect on the operator's ability to continue in business, the gravity of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification and violation.

In addition, since Citation No. 6518754 was issued under § 104(d)(1), § 110(a)(3)(A) of the Act requires that the minimum penalty shall be $2,000.00. Here, the Secretary’s Petition has a proposed assessment of $4,600.00 for the citation at issue. Addressing the appropriate penalty criteria in light of the facts in the record, I find that the circumstances warrant a reduction in penalty to $3,500.00.

            The gravity of the violation and negligence of the operator has already been addressed at length. Given the obviousness of the risk and the length of time in which miners engaged in the violative practice with the full knowledge of the operator, I found River Sand to have exhibited a heightened level of negligence and, at least, a serious lack of reasonable care. Similarly, I have affirmed Gabbard’s assessment that the violative practice was significant and substantial in nature and was reasonably likely to result in fatal injuries.

            While River Sand is a relatively small operation, employing only four miners, the company benefits from resources and personnel provided by its owners. (Tr. 177). Manager Roush and safety man Lutz are employees of the Walker Company, which owns other mines and equipment throughout the state of Kentucky. (Tr. 121, 123, 205). In addition, the parties have stipulated to the fact that the proposed penalty will not affect River Sand’s ability to remain in business. G. Ex. 7.

            I find, however, that River Sand’s history of prior violations and rapid abatement of the citation to merit a reduction in the assessed penalty. Since 2006, River Sand has been issued eleven citations by MSHA, only three of which were designated S&S. G. Ex. 6. None of the eleven citations were cited under the same standard as the present citation, nor did they concern the use of fall protection or the existence of fall or trip hazards. Id. Additionally, River Sand took prompt action in abating the citation shortly after it was issued. River Sand demonstrated that Highfield promptly installed a cable that miners could tie-off on within thirty minutes of when the citation was issued. (Tr. 226). Subsequently, he constructed a handrail surrounding the top of the shaker structure even though Gabbard did not require River Sand to do so to achieve compliance with 30 C.F.R. § 56.15055. Such actions on the part of the operator demonstrate a good-faith effort to abate the citation and to ensure the future protection of miners working atop the shaker structure. Accordingly, giving proper consideration to the statutory criteria and the deterrent purpose of the Act, I find that a penalty of $3,500.00 to be appropriate.

 VI. ORDER

            For the reasons set forth above, Citation No. 6518754 is AFFIRMED, as written. Within thirty days of the date of this decision, Respondent is ORDERED TO PAY a civil penalty of $3,500.00 for its unwarrantable failure to require miners to use fall protection when there is a reasonable chance of falling. Upon payment of the penalty, this proceeding is DISMISSED.

/s/

                                                                                    Thomas P. McCarthy

                                                                                    Administrative Law Judge

Distribution:

Angele Gregory, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7^th Avenue North, Suite 420, Nashville, TN 37219

John S. Talbott III, Esq., DeCamp & Talbott PSC, 311 East Main Street, Suite 600, Lexington, KY 40507-1571

/TJR.