<DOC>
[DOCID: f:yk9881.wais]
July 11, 2000
BLADES CONSTRUCTION PRODUCTS
YORK 98-81-RM
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041
July 11, 2000
BLADES CONSTRUCTION PRODUCTS, : CONTEST PROCEEDINGS
Contestant :
: Docket No. YORK 98-81-RM
: Citation No. 7714696; 8/4/98
v. :
: Docket No. YORK 98-82-RM
: Citation No. 7714697; 8/4/98
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Docket No. YORK 98-83-RM
ADMINISTRATION (MSHA), : Citation No. 7714698; 8/5/98
Respondent :
: Steuben Crushed Stone-Div./
: Blades Construction Products
: Mine ID No. 30-00214
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. YORK 98-58-M
Petitioner : A.C. No. 30-00214-05512
v. :
: Docket No. YORK 99-4-M
BLADES CONSTRUCTION PRODUCTS, : A. C. No. 30-00214-05514
Respondent :
:
SECRETARY OF LABOR, : Docket No. YORK 99-56-M
MINE SAFETY AND HEALTH : A. C. No. 30-00214-05516 A
ADMINISTRATION (MSHA), :
Petitioner : Docket No. YORK 99-57-M
v. : A. C. No. 30-00214-05517 A
:
RONALD G. THURSTON & :
JAMES P. EMO, employed by :
BLADES CONSTRUCTION PRODUCTS, :
Respondents : Steuben Crushed Stone-Div./
: Blades Construction Products
DECISION
Appearances: William G. Staton, Esq., Office of the Solicitor,
U.S. Dept. of Labor, New York, New York, on behalf
of the Secretary of Labor;
L. Joseph Ferrara, Esq., Jackson & Kelly, Washington,
D.C., and John F. Klucsik, Esq., Devorsetz, Stinziano,
Gilberti, Heintz & Smith, P.C., Syracuse, NY, on
behalf of Blades Construction Products, Ronald G.
Thurston and James P. Emo.
Before: Judge Melick
These consolidated civil penalty proceedings are before
me pursuant to Sections 105(d) and 110(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. � 801, et
seq., the "Act," charging Blades Construction Products
(Blades) and James P. Emo and Ronald G. Thurston as
agents of Blades, with violations of mandatory standards.
The general issue before me is whether there were
violations of the cited standards. Other issues include
whether certain violations were "significant and
substantial," whether certain violations were caused by
the "unwarrantable failure" of Blades and whether certain
violations were "knowing" violations committed by Emo
and/or Thurston as agents of a corporate mine operator
within the meaning of Section 110(c) of the Act. If
violations are found to have been committed and if those
violations are found to have been "knowingly" committed
by Emo and/or Thurston as agents of a corporate operator,
then appropriate civil penalties must also be assessed
utilizing the relevant criteria under Section 110(i) of
the Act.
Before and during hearings the parties reached partial
settlements and Blades agreed to pay the proposed civil
penalties with respect to Citation Nos. 7707523, 7707524,
4432879, 7714696, 7714697 and 7714698. Without
objection, the Secretary also amended her petition for
civil penalty in Docket No. York 98-58-M, by including
therein Citation No. 4288449. The parties thereafter
also agreed to a settlement of that citation and Blades
agreed to pay the proposed penalty in full. Considering
the representations and documentation submitted in these
cases, I conclude that the proferred settlement is
acceptable under the criteria set forth in Section 110(i)
of the Act. Accordingly an order directing payment of
the agreed penalties will be incorporated in this
decision. The Secretary has also unilaterally vacated
Citation Nos. 4432875 and 4432880, and has modified
Citation No. 4432873 to delete the "significant and
substantial" finding originally made therein.
Citation No. 4432873
This citation, as modified, alleges a violation of the
standard at 30 C.F.R. � 58.620, without "significant and
substantial" findings, and charges as follows:
The Joy air track drill operator was drilling dry
on the northside upper bench. Water was available
but not being used. There were no other effective
dust control measures being used as required.
Heavy dust concentrations were observed extending
above the drill mast head. The drill operator was
wearing a Moldex 2200 dust mask that was not
properly fit tested.
The cited standard, 30 C.F.R. � 58.620, provides as
relevant hereto that "holes shall be collared and drilled
wet, or other effective dust control measures shall be
used, when drilling non-water-soluble material."
Inspector William Korbel of the Department of Labor's
Mine Safety and Health Administration (MSHA) visited the
Steuben Crushed Stone Mine on February 19, 1998, in
response to a miner's hazard complaint. Korbel initially
met with quarry foreman Ronald Thurston at the scale
house. From that location Korbel observed drilling in
progress above the north face. There was heavy dust
around the drilling mast and, after approaching the drill
at the top of the bench he found that the operator had
been drilling "dry."
The driller told Korbel that this was only his second
day on this drill, that he had never been told not to drill
dry and that he had never been told to use water.
According to Korbel, Thurston also admitted that he did
not warn the driller about the need to use water while
drilling and told Korbel that water would freeze if he
used it.
In its post-hearing brief Blades admits to the violation
and now questions only the issue of negligence and the
appropriate penalty. The Secretary did not address these
issues in her post-hearing brief so that neither her
theories of negligence nor the amount of penalty she now
proposes, based on her modified citation, are known. I
nevertheless find that the violation was the result of
high negligence. Indeed, Blades now acknowledges that
Thurston knew he was drilling dry but in an attempt to
mitigate its negligence Blades argues that water could
not have been used because of freezing temperatures.
This argument provides no justification for the violation
however, since, as Inspector Korbel observed, anti-freeze
could have been utilized to prevent freezing. Moreover,
according to former Blades drill operator Darrell Rice,
Blades had on past occasions used a 50/50 mixture of
methanol and water to keep the water from freezing.
Blades also argues that the drillers were told to remove
themselves from the drill rig while drilling. While this
evidence could serve to reduce the dust exposure to
miners and therefore, reduce the gravity of the
violation, it provides no mitigation of Blades'
negligence in committing the violation herein. Under
these circumstances it is clear that an agent of the
operator, Ron Thurston, intentionally violated the cited
standard.
As noted, the Secretary has modified this citation to
delete her "significant and substantial" findings and to
allege that an "injury or illness" was "unlikely." While
the Secretary has not addressed the issue of gravity in
her brief, in light of the above modifications and
thereby the implicit discrediting of her own evidence on
this issue, I conclude that the violation was of low
gravity.
Citation No. 4432874
Neither the violation charged in Citation No. 4432874 nor
the Secretary's "significant and substantial" findings
relating thereto are now challenged. In its post-hearing
brief Blades now questions only the negligence findings
and the appropriate penalty. The citation at issue
alleges a "significant and substantial" violation of the
standard at 30 C.F.R. � 56.15005 and charges as
follows:[1]
The joy driller was observed changing steel standing
about 3-1/2 feet from a 37 ft. dropoff. He then went
to the edge (standing within 1 ft. of the edge/dropoff)
and picked up a stone. He was brought back from the
edge and stated his safety belt and line was back at
the plant. When persons work where there is a
danger of falling and are not using a safety belt and
line, it is considered an imminent danger condition.
The cited standard, 30 C.F.R. � 56.15005, provides as
relevant hereto that "safety belts and lines shall be
worn when persons work where there is danger of falling."
From a position below the highwall Inspector Korbel
observed the driller standing within a body length of the
edge of the wall without a safety belt. At that location
the wall had a 37-foot drop-off. Proceeding to the top
of the bench, Inspector Korbel observed what he deemed to
be the driller's footprints only 3 � feet from the edge.
From that location Korbel also observed the driller pick
up a rock from within one foot of the edge. In the
presence of Thurston, Korbel asked the driller if he had
been told to wear a safety belt near the edge and the
driller responded in the negative. Blades now
acknowledges that the standard was violated when the
drill operator approached to within one foot of the
highwall without wearing fall protection. I find that
the standard was also violated when the drill operator
also approached to within 3 � feet of the highwall, as
alleged.
Korbel opined that this admitted violation was
"significant and substantial." While this finding is no
longer challenged it is appropriate to nevertheless
review the basis for such a finding. A violation is
properly designated as "significant and substantial" 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 Division, National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies
Coal Co., 6 FMSHRC 1,3-4 (January 1984), the Commission
explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum 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
hat the injury in question will be of a
reasonably serious nature.
See also Austin Power Inc. v. Secretary, 861 F.2d 99,
103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021
(December 1987) (approving Mathies criteria).
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., 6 FMSHRC 1834,
1836 (August 1984)). The likelihood of such injury must
be evaluated in terms of continued normal mining
operations without any assumptions as to abatement. U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984);
See also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986) and
Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).
Clearly, the presence of the drill operator within 3-1/2
feet and one foot of the edge of a 37-foot highwall
without a safety belt constitutes a "significant and
substantial" violation of the cited standard and a
violation of high gravity. I disagree with the
Secretary, however, that the violation was the result of
high negligence. The Secretary bases her argument in
this regard on purported admissions by Quarry Foreman
Thurston that the drill operator was required to drill
holes within seven feet of the edge of the highwall but
had not been given instructions to wear a safety belt
while drilling nor warned against approaching the edge of
the highwall without a safety belt. The Secretary
further argues that the drill operator had limited
experience of two days drilling with only brief
instructions and was working alone on a surface that was
uneven and wet with moisture.
The drill operator, Robert Clark, stated to an MSHA
investigator however that he had in fact been trained in
the use of a safety belt and line and had in fact been
warned by Mine Superintendent James Emo not to work near
the edge. Thurston testified moreover that he had
trained Clark for about nine hours and that he and Emo
had both warned Clark to stay away from the highwall. In
addition, Thurston provided Clark with a seven foot pipe
to measure the placement of drill holes and to keep him
from approaching closer than seven feet from the edge of
the highwall. I further find credible the evidence that
Clark had not in fact been changing the drill steel
manually.
However, while I conclude that Clark was not strictly
required by his job duties to approach closer than seven
feet of the highwall, he was nevertheless within
sufficient proximity of the highwall to warrant the need
for fall protection. It is reasonably foreseeable that
the driller could trip or stumble from a distance of
seven feet from the edge of the highwall thereby placing
him in danger of falling. This evidence is weighed in
conjunction with the credible evidence that Blades had
provided Clark with fall protection training and that
Clark had been issued a safety belt and line which he
wore on a daily basis in his normal job of crusher
operator, where there were fall hazards. In addition, on
February 18 and February 19, Emo and Thurston provided
more than nine hours of task and safety training to Clark
and Clark was told to "stay away from the face." Within
this framework of evidence I find Blades chargeable with
only moderate negligence.
Citation No. 4432876
This citation, issued pursuant to Section 104(d)(1) of
the Act,[2] alleges a "significant and substantial"
violation of the standard at 30 C.F.R. � 56.3130 and, as
modified, charges as follows:
Mining methods used on the pit northwest upper
bench exceeded the capacity of the equipment
being used. The 62 to 65 foot high face is
fractured with a large amount of loose visible
along the entire height and 410 foot length.
On April 30, 1996, a similar condition on a 43
foot high face resulted in a lost time accident.
This is an unwarrantable failure.
The cited standard, 30 C.F.R. � 56.3130, provides as
follows:
Mining methods shall be used that will maintain
wall, bank, and slope stability in places where
persons work or travel in performing their
assigned task. 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 held that the standard at issue
incorporates a "performance-oriented" approach so that it
is "broad enough to apply to the wide variety of
conditions encountered." The Commission further
explained that the appropriate test in interpreting and
applying such broadly worded standards is not whether the
operator had explicit prior notice of a specific
prohibition or requirement, but 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."
Secretary v. Cyprus Tonopah Mining Corp., 15 FMSHRC 367
(March 1993).
The Secretary appears to argue that there was a violation
of the cited standard under either of two theories. The
Secretary argues under her first theory, that the large
amount of loose material found by Inspector Korbel on the
bench below the upper west highwall and Korbel's
observations that the face was fractured and
unconsolidated, corroborated by the testimony of expert
Terry Hoch that the wall was unstable, is in itself
evidence that the mining methods were inadequate to
maintain wall stability. Under her second theory, the
Secretary maintains that the benches were not suitable
for the available maintenance equipment at the mine
property.
I find that the Secretary has met her burden of proving a
violation under her first theory and in light of these
findings it is not necessary to reach her second theory.
It is undisputed that the upper west face was 62 to 65
feet high and 410 feet long and that the adjacent bench
was approximately 40 feet wide. Inspector Korbel
testified credibly that he found a large amount of loose
unconsolidated material on the bench and heard material
falling during his inspection. He also observed that the
face was severely fractured. Terry Hoch, a mining
engineer and chief of MSHA's roof control division,
visited the subject quarry on July 13, 1999, accompanied
by a technician and Inspector Korbel. Based on his
firsthand observations of the material and strata in the
west highwall at that time, photographs of various
portions of the highwall taken in February of 1998, the
testimony of Inspector Korbel that material had been
falling off the highwall and evidence that a freeze-thaw
cycle was then occurring, Hoch concluded that the
highwall was unstable on February 19, 1998. Hoch
concluded that the presence of tension cracks at the
brow, falling material and the height of the benches in
relation to the overall structure indicated its
instability. He noted in particular that such tension
cracks are a precursor to failure. Because of Hoch's
particular expertise I give his testimony significant
weight and I therefore conclude that mining methods had
not been used to maintain the stability of the cited
highwall.
In light of the credible evidence that miners traveled
and worked along the bench below the cited highwall,
i.e., Rice prepared to drill there and Emo traversed the
bench to examine the highwall, I find that they were
thereby exposed, and others would continue to be exposed,
to the potentially fatal hazard of falling rocks. It is
clear therefore that the violation is proven as charged
and was "significant and substantial" and of high
gravity.
The Secretary also alleges that the violation was the
result of Blades' "unwarrantable failure" to comply with
the cited standard. In Emery Mining Corp., 9 FMSHRC
1997, 2004 (December 1987), the Commission held that
unwarrantable failure is aggravated conduct constituting
more than ordinary negligence. This determination was
derived, in part, from the plain meaning of
"unwarrantable" ("not justifiable" or "inexcusable"),
"failure" ("neglect of an assigned, expected or
appropriate action"), and "negligence" (the failure to
use such care as a reasonably prudent and careful person
would use, and is characterized by "inadvertence,"
"thoughtlessness," and "inattention"). 9 FMSHRC at 2001.
Unwarrantable failure is characterized by such conduct as
"reckless disregard," "intentional misconduct,"
"indifference" or a "serious lack of reasonable care." 9
FMSHRC at 2003-04; Rochester & Pittsburgh Coal Co., 13
FMSHRC at 189, 193-94 (February 1991).
In addition, in Mullins and Sons Coal Company, 16 FMSRHC
192, 195 (February 1994), the Commission set forth
number of factors indicative of unwarrantability,
including the extent of the violative condition, the
length of time that it has existed, whether the violation
is obvious or poses a high degree of danger, whether the
operator has been placed on notice that greater efforts
are necessary for compliance and the operator's efforts
in abating the violative condition made prior to the
issuance of the citation or order.
In this regard I give particular weight to the testimony
of former drill operator Darrell Rice. Rice began
working at the Steuben Crushed Stone Quarry in May 1968.
He was primarily a driller but also worked with loaders
and crushers and performed some maintenance. On February
16, 1998, only three days before the citation herein was
issued, Rice was told by foreman Thurston to drill a shot
below the west face. Rice testified that "he did not
like the looks of the face." The bench there was only 40
feet wide and because of the freezing and thawing he did
not want to work in that area. He asked Thurston if he
could work in another area but Thurston refused the
request stating that there was no other work. Presumably
rather than work under conditions he considered
hazardous, Rice then told Thurston that he was sick with
the flu, went home and never returned. Rice also
testified that he frequently observed stress fractures
at other highwalls after shots had been fired. The
photographs in evidence also clearly show the obvious
nature of the stress fractures above the west wall.
Within this framework of evidence it is apparent that a
number of the factors set forth in the Mullins case were
extent herein including evidence that the violative
conditions extended over a large area, that the
operator's agent Ron Thurston was given specific notice
of the hazard three days before the order was issued,
that, in light of the narrow width of the bench, the
conditions were particularly dangerous, and that the
operator made no effort to abate the hazardous conditions
after it was specifically notified of them by drill
operator Darrell Rice. Accordingly there can be no
question that the violation was the result of
unwarrantable failure and high negligence.
In reaching these conclusions I have not disregarded
Blades' argument that, because MSHA had not previously
cited the upper west face in spite of its many
inspections over the 13-years preceding the instant
citation, it had not been placed on official notice that
MSHA had any problems with its mining methods on the
upper west face. I cannot agree however with Blades'
premise that the upper west face had not changed since
the MSHA inspections. Indeed, the credible evidence
shows that such a highwall is dynamic and constantly
changing from the cycles of freezing and thawing, from
loose material falling off the face, from the development
and expansion of tension cracks and from other
disturbances such as explosions.
Order No. 4432877
This order, issued pursuant to Section 104(d)(1) of the
Act, alleges a "significant and substantial" violation of
the standard at 30 C.F.R. � 56.3200, and charges as
follows:
Ground conitions[sic] on the pit northwest upper
bench create a fall of material hazard to persons.
The 62 to 65 foot highface is fractured with a
large amount of loose visible along the entire
length (410 ft.) and height (62 - 65 ft.). The
area had been mucked using a Caterpillar 988 and
fallen loose was now present near the toe as was
loose observed falling. Most loose ranged from about
6" X 6" X 4" to about 12" X 10" X 8". There were
fresh pickup tire tracks nearby and on April 30,
1996, a lost time accident occurred near a 43
ft. face. This is an unwarrantable failure.
The cited standard, 30 C.F.R. � 56.3200, provides as follows:
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.
The evidence supporting this order is largely the same
as previously discussed in support of Citation No. 4432876.
It is based in large part again upon the testimony of
Inspector Korbel and expert witness Terry Hoch, and
corroborated by the photographs in evidence. Korbel
testified credibly that the citation was issued because
of the amount of loose material and the presence of
pillars/chimneys along the west face and tension cracks
along the brow of the highwall. Korbel testified that he
also found loose material along the brow which also
presented a hazard to workers below. Mining engineer
Terry Hoch also testified that tension cracks at the brow
of the highwall were a red flag and a sign of impending
failure. According to Hoch the tension cracks could have
been caused by overblasting and backbrake which would
loosen the natural joints in the rock. In addition, Hoch
testified that such cracks indicate both vertical and
horizontal movement of the material. It was Hoch's
opinion that the area of such tension cracks should be
dangered off until an assessment of the cracks can be
made and before any further mining activity. Clearly the
failure of Blades to have taken down or supported such
hazardous conditions constituted a violation of the
standard as charged.
The rationale for sustaining the "significant and
substantial" findings with respect to Citation No.
4432876 also apply equally hereto. Accordingly I find
that the instant violation was also "significant and
substantial" and of high gravity. The rationale for
sustaining the unwarrantability findings with respect to
Citation No. 4432876 also applies equally to this Order.
Under the circumstances I find that this violation was
similarly caused by unwarrantable failure and high
negligence.
Citation No. 4432878
This citation alleges a "significant and substantial"
violation of the standard at 30 C.F.R. � 56.3401, and charges as
follows:
While a person was visually checking ground
conditions in the pit, there was no testing for
loose ground being conducted. A 62 to 65 foot
face on the northwest upper bench contains a
large amount of loose that was observed working
with some falling. Testing ground conditions
would present an imminent danger for the person
conducting the examination as most loose on the
bench ranged from about 6" X 6" X 4" to about
12" X 10" X 8". There were fresh pickup tire
tracks in this area.
The cited standard, 30 C.F.R. � 56.3401, provides as follows:
Persons experienced in examining and testing for
loose ground shall be designated by the mine
operator. Appropriate supervisors or other
designated persons shall examine and, where
applicable, test ground conditions in areas where
work is to be performed prior to work commencing,
after blasting, and as ground conditions warrant
during the work shift. Highwalls and banks
adjoining travel ways shall be examined weekly or
more often if changing ground conditions
warrant.
Because the cited standard is broadly worded the standard
of review is whether a reasonably prudent person familiar
with the mining industry and the protective purposes of
the standard would have recognized the specific
requirement of the standard. Cyprus Tonapah Mining Co.,
12 FMSHRC 2409 (November 1990). The instant citation was
issued by Inspector Korbel based on Thurston's admission
on February 19, 2000, that no testing had been performed
and that he did not know how to conduct testing to
determine the presence of loose material. In addition,
the existence of loose unconsolidated material, the fact
that Korbel heard loose material falling and observed
chimneys and tension cracks at the brow of the highwall
indicate that proper testing had not in fact been
performed. Mining engineer Terry Hoch testified that the
appearance of tension cracks indicated the need for
monitoring to determine the extent of any ground
movement.
Under the circumstances the violation is clearly proven
as charged and was also clearly "significant and
substantial." Korbel's credible testimony that injury
from the cited conditions was reasonably likely in the
event of falling material and that such injury could be
fatal (to persons working or travelling on the relatively
narrow bench below) is entitled to significant weight.
The violation was accordingly also of high gravity.
I find that operator negligence should appropriately be
characterized as high. The operator had been placed on
notice of the potentially hazardous conditions by Darrell
Rice only three days before the citation was issued, no
efforts were made to correct these conditions and the
condition was quite serious. See Mullins and Sons Coal
Company, 16 FMSHRC at 195.
Civil Penalty Criteria
Operator's History of Previous Violations:
The record shows that Blades had a history of 14
violations between January 28, 1996 and January 27, 1998,
and eleven of those violations were without a
"significant and substantial" designation and with
minimal $50.00 penalties (Government Exhibit No. 14). I
find this to be a low to moderate history.
Appropriateness of the Penalty to the Size of the Business
of the Operator
It has been stipulated that the size of Blades is "26,513
hours worked per year" and that the size of the subject
mine is "15,908 hours worked per year." The operator and
the subject mine are therefore small in size.
Whether the Operator was Negligent
This criteria has been discussed separately with respect
to each charging document.
The Gravity of the Violation
This criteria has been discussed separately with respect
to each charging document.
The Demonstrated Good Faith in Attempting to Achieve Rapid
Compliance
It is not disputed that the operator demonstrated good
faith in attempting to achieve rapid compliance.
The Effect on the Operator's Ability to Continue in Business
It has been stipulated that payment of the assessed
penalties will not affect the operators ability to
continue in business.
Alleged Section "110(c) violations"
Section 110(c) of the Act provides that whenever a
corporate operator violates a mandatory health or safety
standard, an agent of the corporate operator who
knowingly authorized, ordered, or carried out such
violation shall be subject to an individual civil
penalty. The proper legal inquiry for determining
liability under section 110(c) is whether the corporate
agent knew or had reason to know of a violative
condition. Kenny Richardson, 3 FMSHRC 8,
16 (January 1982), aff'd on other grounds, 689 F.2d 632 (6th Cir.
1982), cert. denied, 461 U.S. 928 (1983). Accord, Freeman United
Coal Mining Co., v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir.
1997). To establish section 110(c) liability, the Secretary must
prove only that an individual knowingly acted, not that the
individual knowingly violated the law. Warren Steen Constr.
Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United States v.
International Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)).
An individual acts knowingly when he is " in a position to
protect employee safety and health and fails to act on the basis
of information that gives him knowledge or reason to know of the
existence of a violative condition." Kenny Richardson, 3 FMSHRC
at 16. Section 110(c) liability is predicated on aggravated
conduct constituting more than ordinary negligence. BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1245 (August 1992).
There is no dispute in these cases that Ronald Thurston
and James Emo were agents of corporate operator, Blades
Construction Products. Thurston was first charged herein
with committing a knowing violation of the standard at 30
C.F.R. � 56.15005, the same violation discussed
previously under Citation No. 4432874. That citation
charged as follows:
The joy driller was observed changing steel
standing about 3-1/2 feet from a 37 feet
dropoff. He then went to the edge (standing
within 1 feet of the edge/dropoff) and picked
up a stone. He was brought back from the edge
and stated his safety belt and line was back
at the plant. When persons work where there
is a danger of falling and are not using a
safety belt and line, it is considered an
imminent danger condition.
The credible evidence demonstrates however that Thurston
had not anticipated that driller operator Clark would
have approached as close to the edge of the highwall as
alleged. Thurston credibly explained his belief that
there was no reason for Clark to have been closer than
seven feet from the edge of the highwall. Moreover,
Thurston spent some nine hours personally task training
and overseeing Clark on February 18 and 19. Thurston
also told Mr. Clark "to stay away from the wall," and was
present when Emo instructed him never to stand with his
back to the wall. Both supervisors also instructed Clark
how to set up his drilling equipment in relation to the
five-by-seven shot pattern and where to position himself.
Thurston also provided Clark with a seven foot pipe to
enable him to measure the placement of the drill holes
without approaching close to the highwall. Moreover,
Thurston credibly testified that by the morning of
February 19, he was satisfied that Clark was exhibiting
basic competence in drilling and had understood his
warning to stay away from the wall.
Under all the circumstances I find that the Secretary has
not sustained her burden of proving that this was a
"knowing" violation. Accordingly, the charges in this
regard against Thurston must be vacated.
Ronald Thurston and James Emo are charged in Docket Nos.
York 99-56-M and York 99-57-M, respectively, with
"knowing" violations on February 19, 1998, of the
standard at 30 C.F.R. � 56.3130 as charged in Citation
No. 4432876. As modified, that citation charges as
follows:
Mining methods used on the pit northwest upper
bench exceeded the capacity of the equipment
being used. The 62 to 65 foot high face is
fractured with a large amount of loose visible
along the entire height and 410 foot length.
On April 30, 1996, a similar condition on a
43 foot high face resulted in a lost time
accident. This is an unwarrantable failure.
On the facts of this case I find that Thurston, but not
Emo, acted "knowingly" within the meaning of Section
110(c) of the Act. As previously stated, the applicable
test is whether the person in a position to protect
safety and health fails to act on the basis of
information that gives him knowledge or reason to know of
the existence of a violative condition. Kenny
Richardson, 3 FMSHRC at 16.
In this regard the testimony of former Blades employee
Darrell Rice is undisputed that on February 16, 1998,
only three days before the citation at bar was issued, he
was directed by foreman Ron Thurston to drill a shot
below the west face. However, because of the narrow
width of the bench and because of the freezing and
thawing of material in the highwall Rice found the
conditions hazardous and he refused to perform that work.
It is further undisputed that he brought these hazardous
conditions to the attention of Thurston when he asked for
alternate work. Thurston failed to correct these
conditions and refused this request for alternate work.
It may reasonably be inferred that the conditions of the
upper west face remained essentially the same or had
further deteriorated from freeze-thaw cycling, until
February 19 when the citation was issued.
As previously noted, these conditions were described as
including severe fractures along the entire west face at
the edge of the west wall brow area and pillars and
chimneys leaning out over the face. Inspector Korbel
also credibly testified that he heard loose material
falling off the highwall. As also previously noted,
mining engineer Terry Hoch, after viewing photographs of
conditions observed by Inspector Korbel on February 19,
1998, and considering his own observations of materials
at the mine site and the testimony of Korbel, confirmed
that the upper west face wall was unstable on February
19, 1998. The expert testimony of Hoch is, as previously
noted, entitled to significant weight.
Within the above framework of evidence it is clear that
Thurston, as quarry foreman, was in a position to protect
the safety of persons working and travelling below this
highwall and that he failed to act on the basis of
information from Mr. Rice that gave him knowledge or
reason to know of the existence of violative conditions
on the highwall. Accordingly, I find that he acted
"knowingly" within the meaning of Section 110(c) of the
Act.
In reaching this conclusion, I have not disregarded
Thurston's argument that the choice of mining methods was
not his responsibility and that therefore he was not a
corporate agent for purposes of the charges at issue.
Thurston misconstrues the nature of the "Section 110(c)"
charges however. It is undisputed that Blades was a
corporate mine operator and that, as its quarry foreman,
Thurston was an "agent" of that operator. His liability
under Section 110(c) is based upon the fact that he was
in a position to protect safety and failed to act on the
basis of information that gave him knowledge or reason to
know of the existence of a violative condition. See
Kenny Richardson, 3 FMSHRC at 16.
There is no evidence however that James Emo was informed
of the complaint Darrell Rice made to Thurston regarding
the hazardous condition of the west face on February
16th. Without such specific notice, Emo's judgment
concerning the conditions of the cited wall and the
mining methods used at that location could very well have
been clouded by his knowledge of the past failure, over
13 years of inspections, by MSHA to have cited these
mining methods. While it may be true that Emo should
nevertheless have known of the hazardous conditions, that
standard of proof is insufficient to support a "knowing"
violation. See e.g., Virginia Crews, 15 FMSHRC 2103
(October 1993).
Civil Penalty - Ronald Thurston
Thurston's History of Violations
There is no evidence that Thurston has any previous
history of violations.
Appropriateness of the Penalty to the Size of the Business
The Commission held in Sunny Ridge Mining Co., 19 FMSHRC
254 (February 1997), that, as applied to an individual,
the relevant inquiry is whether the penalty is
appropriate in light of the individual's income and net
worth.
In this regard it has been stipulated that Thurston has
an income of $566.00 per week after taxes and that he has
no other assets or income (Tr. 963-965). The penalty
assessed herein is appropriate considering this evidence.
The Effect on the Ability to Continue in Business
The Commission also held in the Sunny Ridge Mining Co.,
case that, as applied to an individual, the relevant
inquiry is whether the penalty will affect the
individual's ability to meet his financial obligations.
Referring again to stipulations, there is no evidence
that the penalty assessed herein would affect Mr.
Thurston's ability to meet his financial obligations.
The Demonstrated Good Faith in Attempting to Achieve Rapid
Compliance
It is not disputed that good faith was demonstrated in
attempting to achieve rapid compliance.
The Gravity of the Violation
As previously noted, the violation was of high gravity.
Negligence
As previously noted, the violation was the result of high
negligence.
ORDER
I. Citation Nos. 4432875 and 4432880, are vacated. Citation
Nos. 7707523, 7707524, 7714696, 7714697, 7714698, 4432879 and
4288449, are affirmed and Blades Construction Products is
directed to pay the agreed penalties of $535.00, for the
violations charged therein within 40 days of the date of this
decision. Citation Nos. 4432873, 4432874, 4432876 and 4432878
and Order No. 4432877 are affirmed, and Blades Construction
Products is directed to pay civil penalties of $150.00, $337.00,
$800.00, $147.00 and $1,000.00, respectively for the violations
charged therein within 40 days of the date of this decision.
II. The charges herein against James Emo under Section 110(c)
of the Act, are hereby vacated. The charges herein against
Ronald Thurston under Section 110(c) of the Act which are based
on the violation charged in Citation No. 4432874 are hereby
vacated. The charges herein against Ronald Thurston based on the
violation charged in Citation No. 4432876 are hereby affirmed and
said Ronald Thurston is directed to pay a civil penalty of
$350.00 within 40 days of the date of this decision.
Gary Melick
Administrative Law Judge
Distribution: (Certified Mail)
William G. Staton, Esq., Office of the Solicitor, U.S. Dept. of
Labor, 201 Varick St., Room 707, New York, NY 10014
L. Joseph Ferrara, Esq., Jackson & Kelly, Suite 400, 2401
Pennsylvania Avenue, N.W., Washington, D.C. 20037
John F. Klucsik, Esq., Devorsetz, Stinziano, Gilberti, Heintz &
Smith, P.C., 555 East Genesee St., Syracuse, NY 13203
\mca
**FOOTNOTES**
[1] A "Section 107(a)" imminent danger order was also
issued in conjunction with this citation. The order was not
however contested within the time frame set forth in Section
107(e)(1) of the Act and the validity of that order is therefore
not before me in this civil penalty proceeding. In any event
Blades noted in its post-hearing brief that it no longer disputes
the imminent danger finding therein.
[2] Section 104(d)(1) of the Act provides as follows:
"If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that
there has been a violation of any mandatory health or
safety standard, and if he also finds that, while the
conditions created by such violation do not cause
imminent danger, such violation is of such nature as
could significantly and substantially contribute to the
cause and effect of a coal or other mine safety or health
hazard, and if he finds such violation to be caused by an
unwarrantable failure of such operator to comply with
such mandatory health or safety standards, he shall
include such finding in any citation given to the
operator under this Act. If, during the same inspection
or any subsequent inspection of such mine within 90 days
after the issuance of such citation, an authorized
representative of the Secretary finds another violation
of any mandatory health or safety standard and finds such
violation to be also caused by an unwarrantable failure
of such operator to so comply, he shall forthwith issue
an order requiring the operator to cause all persons in
the area affected by such violation, except those persons
referred to in subsection (c) to be withdrawn from, and
to be prohibited from entering, such area until an
authorized representative of the Secretary determines
that such violation has been abated."