A.        Order No. 8542424: The John Deere Loader

            Prior to his visit, McPheeters looked at past MSHA inspection reports to check for any history of violations at the mine. (Tr. 37:1–25.) McPheeters’ review revealed a history of citations and orders issued under section 104(a) and (d) of the Mine Act. (Tr. 39:10–12, 42:11–19.) Upon arriving at the mine, McPheeters and Ratliff also examined the mine’s pre-shift safety inspection reports, which included notes indicating the presence of a leak on the mine’s John Deere front-end loader. (Tr. 57:4–6.)

            Along with quarry Safety Director Samuel Franklin, inspectors McPheeters and Ratliff examined the mine’s John Deere 544G front-end loader. (Tr. 46:12–20.) The front-end loader has a single-person cab. (Tr. 47:14–23.) The cab stands seven to eight feet above the ground and has one entry door. (Tr. 47:6–23) The vehicle’s cab also has windows on all sides. (Tr. 47:22–23.) Although not required by law, the cab possessed a fire extinguisher. (Tr. 48:7.)

            At the mine, an employee alerted McPheeters to a potential problem with the front-end loader, telling the inspector that a valve or hose in the machine was leaking. (Tr. 50:18–21.) Campbell County’s Franklin testified that one of the inspectors asked him to remove a rubber mat covering the floor of the vehicle’s cab before checking the interior. (Tr. 149:10–11.) Upon inspection of the cab floor, McPheeters found an oily sheen across the entire floor and a puddle of brown, oily fluid in the corner. (Tr. 48:12–49:19.) McPheeters identified the brown liquid as oil-based hydraulic fluid. (Tr. 48:19.) The fluid was mixed with dirt. (Tr. 51:21–22.)

            The inspectors observed that the mine’s workplace examination records first noted the presence of a leak of hydraulic fluid in January 2010, five months prior to the June 22 MSHA inspection. (Tr. 115:14.) Yet, Campbell County’s records revealed no attempts to repair the hydraulic fluid leak. (Tr. 125:21–126:2.)

            Based on his observations, Inspector McPheeters issued Order No. 8542424, alleging a violation of 30 C.F.R § 56.4102:

Flammable or combustible liquid spillage or leakage was not removed in a timely manner or controlled to prevent a fire hazard. On the John Deere 544G loader, a hydraulic leak exist[ed] in the cab. The floor is covered with oil and employees are exposed to a fire or burn hazard. The mine operator has engaged in aggravated conduct constituting more than ordinary negligence. This violation is an unwarrantable failure to comply with a mandatory standard.

(Ex. P–4 at 1.) McPheeters designated the order as an S&S violation affecting one person and characterized the Campbell County Highway Department’s negligence as “high” and as an unwarrantable failure to comply with a mandatory health or safety standard (Id.) Because of the mine’s history of citations and orders under section 104(d)(1) of the Mine Act, McPheeters issued a closure order under section 104(d)(2) for the alleged violation.

B.        Order No. 8542431: The Hammer Mill

            After examining the front-end loader, the MSHA inspectors checked the mine’s rock crusher, which they generally referred to as the “hammer mill.” (Tr. 96:14–15.) The hammer mill is a big piece of equipment used to reduce large rocks to a size suitable for use by the Campbell County Highway Department. (Tr. 70:14–15.) The hammer mill operates almost continually when the mine is open. (Tr. 178:1–10.) The machine’s design causes material to be expelled during the crushing process. (Tr. 172:6–8.) To prevent this expulsion of material, the hammer mill is equipped with chains covering the ejection points. (Tr. 168:14–25.)

            A miner operates the hammer mill remotely from a stand located approximately 100 feet away from the crushing device. (Tr. 161:2.) However, workers must still access the area immediately surrounding the crusher device to perform occasional repairs and weekly maintenance. (Tr. 161:6–13.) To facilitate those repairs and maintenance, Campbell County installed an elevated walkway around the hammer mill. (Tr. 228:25–229:10.) The main portion of the walkway is approximately eight feet long, thirty inches wide, and stands about eight feet off the ground. (Tr. 71:5–14.) The walkway has guard rails around the outer edge. (Tr. 73:17–20.) The walkway runs around the side of the hammer mill and then reaches a small platform area that is level with the walkway. (Tr. 185:4–7.) A feeder runs across the small platform and connects to the hammer mill. (Tr. 182:23–183:3.) The feeder stands approximately four feet above the walkway and platform. (Tr 73:10–13.) A small catwalk branches off from the platform and runs to other parts of the rock crusher. (Tr. 183:21–184:17.)

            Upon inspecting the elevated walkway, Inspector McPheeters discovered an accumulation of rock material six inches to a foot in depth. (Tr. 73:21–22.) The material covered the entire width of the elevated walkway and stretched a length of four to five feet. (Tr. 74:7–15.) The material, which included rocks ranging from the size of gravel to the size of a fist, had spilled out of the hammer mill where the feeder overhangs the walkway. (Tr. 73:5–9.) McPheeters testified that during the inspection an employee at the mine told him the hammer mill was missing chains that would prevent rock from being thrown out of the mill. (Tr. 97:12–15.)

            When looking at the County Quarry’s workplace records, McPheeters discovered that the accumulated material had been noted on June 16, six days prior to the inspectors’ visit, but with no indication it had been cleaned up. (Tr. 79:18–21.) Franklin, the mine’s safety director, testified that the hammer mill would take several days to expel the quantity of rock McPheeters found on the walkway. (Tr. 178:2–4.)

            Based on his observations, McPheeters issued Order No. 8542431, alleging a violation of 30 C.F.R. § 56.11001:

Safe means of access was not provided and maintained to all working places. At the primary plant the walkway adjacent to the hammer mill had a build up of rock material about six inches to a foot deep. Employees that work in this area are exposed to a trip or fall hazard. This condition was noted on work place exams; however, it was not corrected.

(Ex. P–18 at 1.) McPheeters designated Order No. 8542431 as an S&S violation affecting one person and characterized Campbell County’s negligence as “high” and as an unwarrantable failure to comply with a mandatory health or safety standard. (Id.)

IV. PRINCIPLES OF LAW

A.        30 C.F.R. § 56.4102 – Spillage and Leakage

            Section 56.4102 requires that operators (1) remove or control (2) flammable or combustible liquid spillage or leakage (3) in a timely manner.

            MSHA has defined “flammable liquid” as a “liquid that has a flashpoint below 100°F.” 30 C.F.R. § 56.2. The Secretary has defined “combustible liquids” to mean “liquids having a flash point at or above 100°F.” Id. “Flash point” in turn is defined as “the minimum temperature at which sufficient vapor is released by a liquid or solid to form a flammable vapor-air mixture at atmospheric pressure.” Id. As one Commission Judge observed, these expansive definitions mean the regulation covers nearly every liquid other than water. See Lehigh Southwest Cement Co., 33 FMSHRC 340, 352–353 (2011) (ALJ).

            The determination of whether an operator fails to correct a defect in a timely manner depends entirely on when the defect occurred and when the operator knew or should have known of the condition’s existence. See Lopke Quarries, Inc., 23 FMSHRC 705, 715 (July 2001) (affirming Judge’s ruling that the Secretary must present evidence of when a device became defective to show a violation of 30 C.F.R. § 56.14100(b) for failing to correct the defect “in a timely manner”) (footnote omitted). Where an operator has actual knowledge of a violative condition and nevertheless continues to use the equipment without addressing the hazard, Commission Judges have found violations of this standard. See, e.g., Consolidated Rebar, Inc., 35 FMSHRC 3025, 3027–28 (Sept. 2013) (ALJ) (violation established because operator continued to use vehicle for several days while damaged); Northshore Mining Co., 35 FMSHRC 1006, 1017 (Apr. 2013) (ALJ) (violation established because operator used vehicle for six months without replacing damaged mirrors); Sweetman Construction Co., 21 FMSHRC 101 (Jan. 1999) (ALJ) (violation established because defective truck was in use at the time the inspector found the defect); Walker Stone Company, 20 FMSHRC 1225 (Oct. 1998) (ALJ) (violation established where the operator had been using equipment without functioning headlights for a long period of time due to a lack of knowledge that MSHA required them).

B.        30 C.F.R. § 56.11001 – Safe Access

            Section 56.11001 requires that operators (1) provide and maintain (2) safe means of access (3) to all working places. The Commission has held that section 56.11001 “comprises the dual requirements of providing and maintaining safe access to working places.” Watkins Eng’rs & Constructors, 24 FMSHRC 669, 680 (July 2002) (emphasis added) (citation omitted). The Commission also has concluded that the term “maintain” requires “an operator to uphold, keep up, continue, or preserve the safe means of access it has provided to a working place.” Lopke Quarries, 705 at 708. MSHA has defined a “working place” as any place in or about a mine where work is being performed.” 30 C.F.R. § 56.2.

            The Commission has held that in determining whether a broadly worded standard that is intended to be applied to many factual situations, such as this one, applies to a specific situation, “it is appropriate to evaluate the evidence in light of what a ‘reasonably prudent person, familiar with the mining industry and the protective purpose of the standard, would have provided in order to meet the protection intended by the standard.’” Ideal Cement Co., 12 FMSHRC 2409, 2415 (Nov. 1990) (citing Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987)). Applied to section 56.11001, the standard imposes an obligation on the operator to make each means of access to a working place safe unless, for example, there is no reasonable possibility that a miner would use the route as a means of reaching a workplace. The Hanna Mining Co., 3 FMSHRC 2045, 2047 (Sept. 1981).

C.        Significant and Substantial Violations

            A violation is S&S “if, based on the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). To establish an S&S violation, the Secretary 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. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135-36 (7th Cir. 1995) (affirming ALJ’s application of the Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 104 (5th Cir. 1988) (approving the Mathies criteria).

            The Commission has provided guidance to Administrative Law Judges in applying the Mathies test. The Commission has observed that “the reference to ‘hazard’ in the second element is simply a recognition that the violation must be more than a mere technical violation—i.e. that the violation present a measure of danger.” U.S. Steel Mining Co., 3 FMSHRC 822, 827 (Apr. 1981). The Commission also has indicated that “[t]he correct inquiry under the third element of Mathies is whether the hazard identified under element two is reasonably likely to cause injury.” Black Beauty Coal Co., 34 FMSHRC 1733, 1742–43 & n.13 (Aug. 2012). Finally, the Commission has specified that evaluation of the reasonable likelihood of injury should be made assuming continued mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).

D.        Unwarrantable Failure 

            The Commission has determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). It is characterized by “indifference,” a “serious lack of reasonable care,” “reckless disregard,” or “intentional misconduct.” Id. at 2003–04. Whether conduct is “aggravated” in the context of unwarrantable failure is determined by looking at all the facts and circumstances of a case to see if aggravating or mitigating factors exist. The Commission has identified several such factors, including: (1) the length of time a violation has existed, (2) the extent of the violative condition, (3) whether the operator has been placed on notice that greater efforts are necessary for compliance, (4) the operator’s efforts in abating the violative condition, (5) whether the violation was obvious, (6) whether the violation posed a high degree of danger, and (7) the operator’s knowledge of the existence of the violation. See IO Coal Co., 31 FMSHRC 1356, 1350-51 (Dec. 2009). These factors are viewed in the context of the factual circumstances of each case. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). All relevant facts and circumstances of each case must be examined to determine whether an actor’s conduct is aggravated or mitigating circumstances exist. Id.

V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW

A.        Order No. 8542424 – The John Deere Loader

            1.         Further Findings of Fact

                        a.         The Presence and Flammability of Hydraulic Fluid

            Respondent claims the Secretary did not demonstrate that the material in the front-end loader’s cab was hydraulic fluid. (Resp’t Br. at 2, Resp’t Reply at 2.) Respondent’s argument lacks support in the evidence. Here, McPheeters, an MSHA inspector with thirty-three years of experience working at mines, identified the material on the cab floor as hydraulic fluid that had likely leaked from the front-end loader’s steering column. (Tr. 48:19.) At the hearing, McPheeters testified that an employee of the mine alerted the MSHA inspectors to the hydraulic fluid leak before the inspectors checked the vehicle. (Tr. 50:18–21.) Moreover, Campbell County’s own witness, Franklin, testified that the front-end loader had leaked oil into the cab intermittently for several months. (Tr. 217:2–218:4.) Franklin further testified that the mine had attempted to repair the leak by replacing seals in the hydraulic system. (Tr. 217:2–218:4). Finally, Franklin testified that he cleaned the pooled liquid from the cab floor with Oil-Dri, a material specifically designed for cleaning oil-based fluids. (Tr. 157:10–15.) Indeed, Campbell County’s witnesses failed to provide any evidence suggesting an alternative origin for the fluid in the vehicle’s cab, or even questioning the Secretary’s assertion that the spill was of hydraulic fluid. Given the evidence before me, I find that the accumulated material on the cab floor of the John Deere loader was hydraulic fluid.

            Respondent also argues that the Secretary has not demonstrated that the accumulated fluid was flammable or combustible. (Resp’t Br. at 2.) At the hearing, however, McPheeters credibly testified from his extensive experience that hydraulic fluid is combustible. (Tr. 52:7–53:3.) Given his experience, I find McPheeters’ testimony persuasive. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998) (relying on the opinion of an experienced inspector to conclude that substantial evidence supported an ALJ’s S&S determination). Meanwhile, Campbell County again curiously failed to present any evidence at hearing suggesting the fluid in the cab was not flammable.

            Based on the evidence before me, I therefore find that the accumulated liquid was hydraulic fluid and that it was combustible.

                        b.         The Duration of the Spill

            Respondent also disputes the amount of time the leaked hydraulic fluid was present in the front-end loader’s cab. (Resp’t Br. at 5–7.) Here, Inspector McPheeters testified the hydraulic fluid spill was first noted in equipment examination reports in January 2010, five months prior to the MSHA inspection. (Tr. 59:20–23.) Although McPheeters did not specifically note any subsequent equipment examination reports showing the presence of hydraulic fluid, the MSHA investigator testified that his use of the term “since” in his notes suggested he had found other examination reports noting the presence of the fluid after January. (Tr. 59:20–23, 134:18–135:23.) McPheeters also testified that Respondent did not produce any repair records showing him the front-end loader’s leak had been remedied. (Tr. 89:6–19.) McPheeters further noted the quantity of hydraulic fluid present in the cab and the presence of dirt mixed into the fluid suggested the leakage was present “for sometime.” (Tr. 51:15–52:6.) Accordingly, McPheeters inferred the material had been present since first reported in January. (Tr. 63:11–22.)

            At the hearing, Respondent presented testimony that the mine attempted to repair the front-end loader after the leak’s discovery in January. Assistant Superintendent Estel Muse, who oversaw repair of equipment at the mine during the period, claimed Campbell County had worked on the front-end loader three times, but he was unsure of the precise dates of the work. (Tr. 247:11–15.) Safety Director Franklin likewise testified the operator attempted to repair the leak twice prior to the June 22 inspection, but admitted neither attempt permanently solved the problem. (Tr. 153:8–154:2.) Superintendent Potter testified that the county purchased a set of seals specific for the 544G John Deere front-end loader on November 3, 2009, over seven months prior to McPheeters’ inspection, and that the seals were used on the machine. (Tr. 227:1–20.) Nevertheless, Campbell County failed to provide any record of repairs for the front-end loader during that period. Speaking specifically of the leak McPheeters cited on June 22, Franklin testified the accumulated liquid was present for at least two days prior to the inspection. (Tr. 215:14–25.)

            Based on the above testimony, I conclude the leak in the front-end loader’s hydraulic system existed from January until the MSHA inspection. Campbell County’s efforts to repair the loader were repeatedly ineffectual. I further find the specific accumulation forming the basis of the Secretary’s claim existed for at least two days prior to the examination.

            2.         Analysis and Conclusions of Law

                        a.         Violation of 30 C.F.R. § 56.4102

            Inspector McPheeters issued Order No. 8542424 for Campbell County’s failure to clean up an accumulation of hydraulic fluid in the cab of the mine’s John Deere 544G front-end loader. (Ex. P–4.) I have already found that the accumulated liquid present in the John Deere loader’s cab was hydraulic fluid, which is a combustible liquid as defined by 30 C.F.R. § 56.2. I therefore determine that an accumulation of combustible material was present and not controlled, satisfying the first and second elements of a violation of § 56.4102.

            Consequently, this violation turns on whether Campbell County failed to remove the leakage in a timely manner. As discussed above, I have found that the defect causing the leak existed for five months prior to the MSHA inspection. I have also found that the accumulation of hydraulic fluid on June 22 existed for at least two days, during which the operator knew of the leaked fluid and still operated the vehicle.

            Given the evidence before me, I determine that Campbell County failed to remove the leakage in a timely manner. The repeated recurrence of the leak, despite numerous, inadequate repair efforts throughout the five-month period leading up to MSHA’s inspection, put Campbell County on notice that it needed to be vigilant in checking for new accumulations of hydraulic fluid. Furthermore, Campbell County had actual knowledge that the combustible liquid lay at the feet of the front-end loader’s operator for two days, yet failed to clean up the liquid. Considering the danger posed by having a pool of combustible liquid at the feet of a worker in a vehicle eight to ten feet off the ground, as well as the ease with which the material could be removed, the operator could be expected to remove the hydraulic fluid immediately upon noticing the accumulation. In fact, Franklin testified that he was able to clean the accumulation with a pressure washer and Oil-Dri. (Tr. 157:10–15.) Under the circumstances, two days certainly was not a timely response. Thus, I conclude that Respondent violated 30 C.F.R. § 56.4102.

                        b.         Gravity and S&S Determination                    

            Campbell County’s violation of section 56.4102 establishes the first element of the Mathies test for an S&S violation. The second element of the Mathies test asks whether the violation contributed to a discrete safety hazard; that is, whether the violation provides a measure of danger to safety. Here, Inspector McPheeters credibly testified that accumulated hydraulic fuel contributed to the safety hazard of a fire in the cab of the front-end loader, as well as the hazard of slipping and falling from the vehicle. (Tr. 55:10–18.) Respondent claims that the risk of a fire was negligible because the vehicle’s operator did not smoke. (Resp’t Br. at 13.) However, McPheeters testified that the electrical components in the vehicle’s cab or a related fire in the engine of the vehicle also could light the hydraulic fluid on fire. Accordingly, I determine that the violation contributed to the discrete safety hazard of a fire in the vehicle cab. The Secretary has therefore met his burden of proof on the second element of Mathies.

            The third and fourth elements of Mathies ask whether the safety hazard is reasonably likely to contribute to a reasonably serious injury. The Secretary claims that injuries in this instance are reasonably likely to be fatal. I recognize that the opinion of an experienced inspector is entitled to significant weight. Harlan, 20 FMSHRC at 1278–79. Based on the quantity of hydraulic fluid and its location in the cab of the vehicle, Inspector McPheeters determined that injuries from a fire were reasonably likely to be serious. (Tr. 58:9–11.) The potential for the vehicle operator to slip on the fluid and fall eight feet to the ground when evacuating in an emergency compounded the potential for a serious injury. (Tr. 55:10–18.)

            Campbell County contends that several factors mitigate the threat of a serious injury posed by a fire in the vehicle’s cab. First, Respondent argues that a second point of egress through the cab window increases a miner’s chances of escaping from a dangerous fire. (Resp’t Br. at 13.) Respondent adds that the presence of a fire extinguisher also reduces the chances of a fire causing serious injuries. (Id.) Finally, Campbell County argues that the rubber mat on the floor reduces any risk of the operator slipping and falling. (Id.)

            The evidence and the law do not support Respondent’s arguments. A second exit through the cab window adds only a negligible degree of safety. A miner forced to scramble out the cab window of his vehicle during a fire faces an increased risk of falling from the vehicle. McPheeters already testified that the accumulation of hydraulic fluid increased the risk of a potentially fatal fall from the vehicle cab. (Tr. 55:16–18, Tr. 129:19–130:4.) Next, the Commission has consistently rejected the argument that extraneous safety measures such as the front-end loader’s fire extinguisher reduce the likelihood of a serious injury. See Buck Creek, 52 F.3d at 136 (indicating that the fact a mine operator “has safety measures in place to deal with a fire does not mean that fires do not pose a serious safety risk to miners”). Finally, while a rubber mat may make the floor less slippery, McPheeters testified it would not prevent a fire, the primary danger involved in this case. (Tr. 130:17–131:7.)

            Given the evidence before me, I determine that the Secretary has satisfied his burden of proving that reasonably serious injuries were reasonably likely to occur, thus satisfying Mathies’ third and fourth elements. Based on my above determinations, I therefore conclude that this violation was appropriately designated as S&S.

                        c.         Negligence and Unwarrantable Failure

            The Secretary designated this violation as an unwarrantable failure and characterizes Campbell County’s negligence as high. In support of his allegations, the Secretary points to the length of time Campbell County had knowledge of the leak’s existence. The Secretary further emphasizes that Campbell County provided no evidence of mitigating circumstances during the inspection or in the following closeout conference. (Sec’y Br. at 10–13.)

            Looking to the aggravating factors in the unwarrantable failure determination, five of the seven factors favor the Secretary’s unwarrantable failure allegation. First, the violative conditions lasted for a long time. Respondent’s own witness testified that the hydraulic fluid accumulation was present in the cab for at least two working days prior to the inspection, during which time the front-end loader was in regular use. When a hazard is found to exist, it must be addressed. See Buck Creek, 52 F.3d at 133 (finding unwarrantable failure where cited accumulation hazard must have been present at least since the previous shift). Considering the ease with which the fluid could be removed, allowing the combustible material to persist for two days exhibited a lack of care. Furthermore, the front-end loader had a defect in the hydraulic system of its steering column for approximately five months prior to the inspection on June 22, 2010. Over that period, Campbell County’s safety director noted accumulations of hydraulic fluid in the loader’s cab at least five times. Second, Campbell County had actual knowledge of the accumulation of hydraulic fluid in the front-end loader’s cab. Third, Campbell County’s actual knowledge of the violative conditions on June 22 and its repeated failure to repair the leak over the previous five months put Respondent on notice that greater efforts were necessary to come into compliance with the regulation. The Commission has indicated that a mine operator’s own safety reports can serve to put the operator on notice that its existing abatement efforts are insufficient. See Peabody Coal Co., 14 FMSHRC 1258, 1262 (1992) (holding that a mine’s preshift examination books were “relevant in demonstrating that [the operator] had prior notice that a problem with coal and coal dust accumulations existed in the cited area, and that greater efforts were necessary to assure compliance. . . .”). Fourth, the extent of the violative condition was significant. The leaked fluid had formed a six-inch puddle at the feet of the vehicle’s operator and was smeared across the cab floor. As such, the hazard posed a high degree of danger to the vehicle operator, which applies to the fifth factor. As I have already held, the violation was S&S and reasonably likely to cause a fatal injury.

            In its defense, Respondent first contends that the presence of a rubber mat on the cab floor obscured the leakage. But the repeated incidences of the leaked hydraulic fluid in the months leading up to the MSHA inspection put Campbell County on notice that it should be extra vigilant in examinations of the front-end loader. Just as an apartment owner who covers his leaking pipes with a rug gets no reprieve when the apartment below floods, Campbell County merits no sympathy for having a mat covering the loader’s floor.

            Finally, Respondent claims that its efforts to fix the leak by replacing seals on the hydraulic lines should weigh against the Secretary’s allegations. Campbell County’s good intentions garner it minimal credit. As the Commission has observed: “Good intentions [] and good faith are not the same. Good faith requires vigilance about one’s responsibilities, commitment to finding the resources to get the job done, and accountability for failure.” Consolidation Coal Co., 22 FMSHRC 328, 332 (2000). Perhaps if this were the first or even the second time that the hydraulic fluid leak had arisen, I would credit Respondent’s abatement efforts. But the condition was noted no less than five times. Campbell County’s abatement efforts amount to treating a bullet wound with a Band-Aid; at some point, the efforts must become inadequate to any reasonable observer.

            In light of Campbell County’s failure to address the leakage of combustible material in the cab of the front loader, I conclude that the Secretary has met his burden of proving unwarrantable failure.

            Similarly, I conclude that the Secretary has demonstrated Campbell County’s level of negligence to be high. See 30 C.F.R. § 100.3(d) at Table X (suggesting “high negligence” where the “operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances.”) Here, Respondent knew of the hydraulic fluid leak yet dangerously allowed violative conditions to remain in the cab. For at least two days, the miner operating the loader faced potentially serious injuries from a known condition that Respondent failed to address. Campbell County’s efforts to address the leakage repeatedly proved inadequate to fix the problem, and thus do not mitigate Respondent’s negligence.

                        d.         Penalty

            The Secretary proposed a $4,000.00 civil penalty for this violation. I have found that this order was properly designated S&S. I also have found Campbell County’s negligence to be “high” and its actions to amount to an unwarrantable failure. Under section 110(i) of the Mine Act, I must consider six criteria in assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness of the penalty relative to the size of the operator’s business; (3) the operator’s negligence; (4) the penalty’s effect on the operator’s ability to continue in business; (5) the violation’s gravity; and (6) the demonstrated good faith of the operator in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i).

            In the two years prior to the MSHA inspectors’ visit on June 22, 2010, Campbell County received approximately fifty citations or orders for violations of mandatory safety and health standards. (Ex. P-1.) Considering that the County Quarry employs a modest four miners on site, such a high number of violations is substantial. Nothing in the record suggests that the penalty would impinge on Campbell County’s ability to remain in business. Moreover, Campbell County was highly negligent in allowing the hydraulic fluid accumulation to persist, and the violation exposed miners to a reasonable risk of fatal injuries. Nevertheless, I acknowledge the small size of Campbell County’s mining operation and the operator’s rapid efforts to repair the front-end loader after the June 22 inspection.

            The Mine Act sets a minimum penalty of $4,000.00 for an order issued under section 104(d)(2). 30 U.S.C. § 820(a)(3)(B); see Stansley Mineral Resources, Inc., 35 FMSHRC 1177 (May 2013) (holding that Administrative Law Judge cannot reduce penalty below statutory minimum set under 30 U.S.C. § 820(a)(3)(A) for analogous section 104(d)(1) violation).

            Considering all of the facts and circumstances of this matter, I do not see that the violation deserves a penalty beyond the statutory minimum. Accordingly, I affirm the Secretary’s proposed penalty and assess the statutory minimum penalty of $4,000.00.

B.        Order No. 8542431: The Hammer Mill

            1.         Further Findings of Fact