Secretary of Labor v. Hunt Martin Materials, LLC

Plain-English summary

Two blasters loaded holes near the edge of a 26-to-28-foot highwall without using available fall-protection equipment. Judge David P. Simonton credited the inspectors' contemporaneous notes and testimony that some holes were only two to three feet from the edge, rejecting the operator's claim that the workers stayed at least seven feet back. He found that the irregular, cluttered work surface required protection even under the operator's account. Because a fall was reasonably likely to cause a fatal injury, management had discussed the need for protection, and no mitigating circumstances justified the failure to use it, the judge affirmed the citation as S&S, high negligence, and an unwarrantable failure.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.15005
• Outcome: The citation was affirmed as S&S, high negligence, and an unwarrantable failure, with a $4,900 penalty.
• Key point: Miners working near a highwall edge must use fall protection when actual ground conditions create a fall hazard; a rough distance guideline does not displace assessment of the worksite's irregular footing, clutter, and drop height.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19th STREET, SUITE 443

DENVER, CO 80202-2500

303-844-5267/FAX 303-844-5268

March 25, 2013

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner, 

v.

HUNT MARTIN MATERIALS, LLC, 

Respondent. 

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CIVIL PENALTY PROCEEDING

Docket No. CENT 2012-78-M

A.C. No. 14-01556-269335

Mine: Sunflower Quarry

DECISION

Appearances:  Letha Miller, Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado for Petitioner;

Scott Wircenske, Safety Director, Martin Marietta Materials, Lenexa, Kansas, for
the Respondent.

Before:            Judge Simonton

I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Hunt
Martin Materials, LLC, at the Sunflower Quarry mine (the “mine”) hereinafter referred to as
Respondent, pursuant to section 104(d) (1) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801, et seq. (“Act” or “Mine Act”).

On December 7, 2011, Respondent requested
that the citation be vacated, the absence of which necessitated a hearing pursuant to 29 C.F.R. §
2700.45(c). A hearing was conducted on November 14, 2012, in Topeka, Kansas. The record
closed after the conclusion of oral closing statements from both parties.

II. ISSUES FOR ADJUDICATION

Did Respondent violate 30 CFR Section 56.15005, which requires use of fall protection
equipment when miners, in this instance, engaged in blasting activities on a highwall? Were the
negligence, gravity and penalty determinations appropriately assessed in the citation that was
issued? Respondent asserts no fall protection was required due to the distance the miners were
working from the edge of the highwall thus there was no violation and even if fall protection was
required the violation should not have been assessed as significant and substantial and an
unwarrantable failure.

III. FINDINGS OF FACT

A.        Stipulations

Pursuant to the Secretary’s November 1, 2012, Prehearing Report the parties jointly
stipulated to the following facts:

Hunt Martin Materials, LLC, is an “operator” as defined in Section 3(d) of the Mine Act,
30 U.S.C. § 803(d). At all times relevant to these proceedings the Respondent was engaged in
limestone mining operations at the Sunflower Quarry (Mine ID number 14-01556) in Desoto,
Kansas. The Respondent’s operations affect interstate commerce. As such, Respondent is
subject to the jurisdiction of the Mine Act, and the presiding Administrative Law Judge has the
authority to hear and issue a decision regarding this case. The parties stipulated to the
authenticity of their respective exhibits but not to the relevance or truth of the matters asserted
therein. The individual whose signature appears in Block 22 of the citation at issue, Bryce
Hopp, is an authorized representative of the U.S. Secretary of Labor, assigned to MSHA’s
Topeka, Kansas Field Office at the time of the inspection at issue. He was acting in an official
capacity when the citation at issue was issued. The citation was properly served upon
Respondent as required by the Mine Act. The citation at issue may be admitted into evidence for
the purpose of establishing its issuance, but not for the truthfulness or relevancy of any
statements asserted therein. The proposed penalties will not affect Respondent’s ability to
remain in business. The certified copy of the MSHA Assessed Violations History reflects the
history of the citation issuance at the mine for fifteen months prior to the date of the citation and
may be admitted into evidence without objection by Respondent. The Respondent demonstrated
good faith in abating the violation.

B.        Factual Background and Testimony

This case involves a single citation of an unwarrantable failure to wear fall protection
issued by MSHA inspector Bryce Hopp on July 14, 2010. At the time the citation was issued,
Hopp was assigned to the Topeka, Kansas MSHA office and had worked for MSHA for
approximately two and one half years. He grew up in a family that owned a limestone quarry
business, completed high school and worked for twelve years as a blaster before becoming an
MSHA inspector. Tr. 28-30.

On July 14, 2010, Hopp, along with his supervisor Joseph Steichen, conducted an
inspection of the Sunflower Quarry. Steichen had worked for MSHA since 1997, and was a field
office supervisor in the Topeka, Kansas office at the time of the inspection at issue. Tr. 163.
Prior to MSHA, Steichen had worked for a mining corporation in South Dakota for 27 years. Tr.

165. Steichen accompanied Hopp because he was performing a routine review of Hopp’s
     inspection as part of a performance review process. Tr. 35, 165.

Upon arriving at the blasting site located on top of an approximately 26-28 foot highwall,
Hopp observed that some of the twelve bore holes drilled for blasting purposes were within two
feet of the edge of the highwall. Tr. 38-39; Gov’t Exhibits (hereinafter GE) 1 & 2. He also
noticed that the front row of holes closest to the edge of the highwall had been loaded with
explosive materials that had not yet been wired together. Tr. 38.

Hopp took the following general field notes contemporaneously during the inspection of
the blasting site: Fall protection not being used while loading shot. GE 3. He described the
conditions in greater detail on a Citation/Order Documentation Form (MSHA Form 4000-490) as
follows:

28 foot highwall 12 holes along edge. Multiple shots per week,
retractable lanyards + body harness available for use. Buck Crumley
stated he knew of other quarry who had been cited for this same
violation, also stated a discussion was had with John Kennison –
Blaster Leadman if they should be using fall protection around
ledge. Mr. Crumley had 2 retractable lanyards on site. Some of the
12 holes along edge were within 2 feet of dropoff.

GE 2. Supervisor Steichen testified that he initialed the citation at issue, as well as
Hopp’s inspection and close out notes. Tr. 166. He felt that Hopp’s inspection and decision to
issue the citation was congruent with MSHA policy and procedures, and that he would not have
written the citation any differently. Id. Steichen also took general field notes of his own while
at the blast site, which state:

1000 hours. 2 Blasters loading holes on a 28’ highwall – 1st row of
holes are between about 2’-3’ from highwall. W/o being tied out
to anything no safety harness.

GE 4. He also testified that both he and Inspector Hopp discussed the need for fall
protection during the inspection at the blasting site on the highwall. Tr. 170. He recalled that
both Foreman Buck Crumley and Blaster-in-Charge John Kennison stated they were aware of
another company that had been cited the previous week for a similar violation. Tr. 168-69.
Hopp’s testimony, Steichen’s testimony as well as notes on the Citation/Order Documentation
Form all confirm that Hopp discussed with Kennison and Crumley the need for fall protection
during the inspection of the blasting site. Tr. 48, 85-86, 92, 168-170; GE 2. Hopp further noted
the presence of potential tripping hazards around the blast holes in the form of drill filings and
blasting paraphernalia. Tr. 52.

Respondent denies that any of the blast holes were as close as two to three feet from the
edge of the highwall, and rather maintains that all of the holes were at least seven feet from the
edge. See Respondent’s Letter Contesting Citation (December 7, 2011); Tr. 205. Both Blaster-in-Charge Kennison and Foreman Crumley were present during the inspection of the blasting
area. Kennison testified that the first row of holes were seven feet back from the edge of the
highwall, and that he always loads the holes with shot from behind the first row, which meant
that he was about nine feet from the edge of the highwall when loading the holes. Tr. 204-206.
Pictures of the condition were not taken due to MSHA’s policy not to do so when explosives are
present. Tr. 74-76; GE 8. No measurements were taken because according to both Hopp and
Steichen, there was no dispute presented at the time of inspection regarding the distance of the
front row of blast holes to the highwall edge. Tr. 80-81. The citation was read out-loud during
the inspection close-out and the only question asked by Crumley concerned the standard being
cited, and not the distance from the highwall that was recorded. Tr. 71, 154. Respondent
presented evidence that there was no record of the verbal discussion and issuance of the citation
in Hopp’s field notes. Tr. 87; GE 4. However, Hopp's notes on the Citation/Order
Documentation Form did detail the violation itself, and Hopp testified that he had verbally issued
a citation. Tr. 86-87; GE 2.

After observing the blast site Steichen asked Foreman Crumley if the mine had fall
protection equipment available. Tr. 169-170. Crumley immediately obtained the equipment,
which was donned by Kennison, at which point blasting work resumed. Tr. 230. Hopp
terminated the citation based on Kennison donning fall protection equipment, as confirmed by
the notes on the citation. GE 1. Kennison and Crumley disputed the claim that any discussion
was had about a violation at the time of inspection, and testified that the mine’s understanding
was that the fall protection was merely requested by MSHA to ensure both its availability and
that the blasters were knowledgeable as to its proper use. Tr. 229-30. However, Hopp testified
that he would not have written about termination of the violation without having spoken to the
mine representatives about it, as it is standard practice to have those discussions before
terminating the citation. Tr. 156. The citation was terminated quickly, as “further training on
the use of retractable lanyard and body harness was given and put in use.” Tr. 138. Once
instructed to do so, the mine operator immediately located and hooked up fall protection before
continuing with operations. Tr. 230.

Hopp testified that the conditions on the highwall were such that he felt fall protection
was required to prevent the likelihood of serious injury. In particular, he stated that the top of
the highwall was likely to be windy, and that there were several wires that would be tripping
hazards. Tr. 54, 68. Hopp also stated that he saw “clutter” or “rubble” on the top of the highwall
that could have constituted a tripping hazard, such as drill tailings, packaging, and cuttings.
Further, the holes themselves presented a tripping hazard. Tr. 68.

Inspector Hopp testified that he had observed the blast and felt that it was a fairly normal
blast, without any excessive flyrock.

Tr. 127-29. Respondent used this fact along with
information from a flyrock chart by the Bureau of Mines to assert that, had the holes truly been
as close to the edge of the highwall as the inspector suggested, the flyrock in this case would
have been in excess of 1,000 feet. Tr. 129-30. Respondent then presented a letter by a
consultant, Phil Porter of Buckley Power, which confirmed this conclusion. Tr. 133-35.
However, Hopp countered this conclusion by stating that, according to his understanding of
flyrock, there were a number of variables in play, other than the distance of specific holes from
the edge of the highwall, that were not accounted for by Mr. Porter. Tr. 135.

The Secretary called Tom Lobb, a senior physical scientist at MSHA, to rebut
Respondent’s assertions regarding flyrock. Tr. 256. Lobb's qualifications in the field of mining
engineering and explosives in particular are extensive, and he is certified to train blasters. Tr.

257. In response to Respondent’s theory of the case that a "normal" blast indicated there was no
     violation, he testified that it is impossible to determine how far flyrock will travel in blasting.
     He noted the fact that there are several other variables other than the distance of boreholes from
     the highwall face that come into play, including faults in strata, crooked blast holes, voids in the
     material, and varying hardness of different layers of rock. Tr. 258. Lobb examined the blast
     report, and noted that in most mines, the dimensions indicated on the blast report serve as more
     of a "blueprint," and that surface conditions at the time of the actual blast often result in actual
     burdens that vary significantly from the "design burden." Tr. 261. Upon examination of the
     flyrock charts submitted into evidence by Respondent, Lobb testified that the chart was an
     outdated document, produced by the Bureau of Mines years ago, that has no credence with
     modern explosives organizations. Tr. 269. He also pointed out several inconsistencies in the
     blast report submitted into evidence, including the lack of self-auto calibration on the
     seismograph. Tr. 269-70.

Hopp marked this citation as significant and substantial, and stated he felt it was
reasonably likely that the hazard would cause serious injury. Tr. at 55, GE1. He focused on the
small distance between the first row of holes and the highwall, and on the fact that a fall from 28
feet up would likely result in a fatality. He also noted there were tripping hazards around the
blasting holes such as wires, drill filings and blasting paraphernalia. Tr. 52. With regard to his
assessment that a fatality would likely result from a fall off the highwall he based this mostly on
past MSHA fatal grams, several of which detail situations in which falls from even smaller
heights have resulted in fatalities. Tr. at 55; GEs 9-21. The number of persons affected was
noted as two (Blaster-in-Charge Kennison and a helper) and the negligence level was cited as
high. Tr. 61, 49; GE 1. While unsure about the length of time the miners would have been
exposed to the hazard he estimated it could have taken up to 30 minutes for them to load the
holes. Id. He could not estimate how long it would have taken for the holes to be drilled which
was probably done the day before because shot was being loaded in the morning. Id. He
designated a high level of negligence because a prior discussion had been held regarding whether
fall protection was needed indicating to Hopp that Foreman Crumley was aware that there might
be a need for it and had discussed it with Blaster-in-Charge Kennison. Tr. 62. Hopp further
testified that the hazardous condition was open and obvious. Id. Inspector Hopp also marked
this violation as an unwarrantable failure to comply because the hazard was reasonably likely to
be fatal and that management or an agent of the company was aware that the condition existed.
Id. There was also publicly available information on MSHA’s website concerning the dangers
of conducting mining activities without fall protection, as well as information on the appropriate
way to set up such protection. Tr. 59. In Hopp’s opinion there was an extreme hazard because
had they witnessed the shot being loaded that close to the edge of the highwall without fall
protection in use they would have issued an imminent danger order on the spot. Tr. 63.

IV. APPLICABLE LAW AND ANALYSIS OF EVIDENCE

A.  30 C.F.R. Section 56.15005 Fall Protection Standard

This citation was written for a violation of 30 C.F.R. § 56.15005, which states that
“[s]afety belts and lines shall be worn when persons work where there is a danger of falling.”
Specifically, MSHA policy is to generally follow the guidelines of the Occupational Health and
Safety Administration (OSHA) fall protection standard, which states that fall protection in the
form of guardrails, safety net systems, or personal fall arrest systems should be used when an
employee is walking or working on an edge which is six feet or more above a lower level. U.S.
Department of Labor Program Policy Letter P12-IV-01, June 21, 2012, Respondent’s Exhibit L
(hereinafter RE). FMSHRC has specifically found 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).

The safety belt and lines standard is one of 13 priority standards listed by MSHA in its
“Rules to Live By” initiative implemented to improve the prevention of fatalities in mining. GE
5; Tr. 64. Falling from a highwall was the single most common safety violation found in mining
deaths between 1990 and 1998 contributing to 37 fatalities. GE 6, p. 3; Tr. 65-66. MSHA has
determined that the fall hazard zone by which fall protection should be donned is six feet or less
from the edge of a highwall with a stable crest and six feet or less behind unstable ground or
footing. Id. p. 8; Tr. 66-67.

Inspector Hopp explained that section 56.15005 is a performance standard. While there
is not a specific distance cited in the standard itself where fall protection must be worn when
working on a highwall each case is to be judge separately:

You look for many different things when you are out there, when you

are evaluating. The big thing in this was two feet away from an edge

that had a steep drop-off. You are also looking at the unevenness of a

ledge. Not all limestone edges are flat. Most of them have cracks.

They’re not like driving down a road. So you are going to have uneven

surface. You’re also going to have the filings from the drill. You’ll

have piles of that around. . . . . Also being there was shot loaded, you’re

going to have explosives products laid out. You might also have

stemming rock of a larger size up there to put in the holes as well.

Tr. 40-41. Here, Hopp testified there was “rubble” in the form of drill tailings, shot wire,
tools, equipment, and explosives packaging all present on the highwall. Tr. 68. The highwall in
this instance was 25 to 28 feet high. Tr. 39, 169. It is undisputed that workers were not wearing
any form of fall protection while loading the boreholes with explosives. The main point of
contention at hearing was the distance of the first line of boreholes, and therefore, the workers,
from the edge of the highwall. As noted above, Hopp and Steichen observed that some of the
first line of boreholes were two to three feet from the edge, while Respondent’s Blaster-in-Charge Kennison contends that they were seven feet from the edge. Tr. 38-39, 167, 204-206.

At hearing, Respondent attacked the sufficiency of the evidence that the Secretary
presented to support the citation. In particular, Respondent took issue with the lack of notes that
were taken while the inspectors were actually on the highwall, particularly with respect to the
sparse record as to the actual communications that occurred between mine management and
Inspector Hopp. Tr. 25-26, 85-90. They also took issue with the fact that no pictures or
measurements were taken. Id. at 25. While more notes and certainly measurements in lieu of
pictures (given the acknowledged safety concerns with taking photos) taken in the midst of the
inspection would have been helpful and in fact maybe dispositive of the parties contentions, I
find the inspector’s statements regarding the pace at which they were conducting the inspection,
as well as their thorough notes describing the nature of the mine, to be credible and adequate
given the circumstances. Specifically, Inspector Hopp testified that, “if there’s no disagreement,
to speed up the inspection, you move along.” Tr. 98. He established that one of the reasons
inspections must move quickly is that the presence of inspectors could serve as a “heads-up” to
the rest of the mine, which might allow them the opportunity to hide dangerous violations. Tr.

144. His cumulative notes along with those of his supervisor Steichen contained enough
     information to prove a violation, and I find his reasons for not taking more notes convincing.
     GEs 2, 3 & 4. Likewise, I credit the testimony of Hopp and Steichen regarding discussions they
     had with Kennison and Crumley during the inspection. Tr. 48-50, 170. While both Kennison
     and Crumley deny that Hopp and Steichen pointed out the distance of the boreholes from the
     highwall crest while they were at the blasting site I find Hopp and Steichen’s testimony to be
     more credible because it is supported by Hopp’s notes on the Citation/Order Documentation
     form and Steichen’s field notes. Tr. 208-209, 231-232; GEs 2 & 4. Furthermore, Kennison
     admitted he didn’t know what Hopp and Steichen observed because he was on a time schedule,
     he was busy loading shot and he did not recall some of the things that were discussed. Tr. 207-208. Accordingly, I conclude it was not necessary to take measurements because neither the
     Blaster-in-Charge Kennison nor Foreman Crumley disagreed with Hopp and Steichen regarding
     the distance between some of the bore holes and the highwall crest at the time of the inspection.

Specifically, with respect to the parties’ factual dispute regarding the actual distance
between the edge of the highwall and the first set of boreholes, I again find Inspector Hopp’s and
Supervisor Steichen’s recollection of the events to be more credible, given that their
contemporaneous general field notes and Hopp’s notes on the citation/order documentation form
confirm their testimony. Tr. 208-209, 231-232; GEs 2, 3 & 4. In addition, I credit Hopp’s
testimony that “clutter” was also present on the highwall from the shot loading activities.
Finally, although no one had any specific recollection of the ground conditions it stands to
reason that the surface of the highwall would not have been perfectly smooth and thus some
variance in this regard is to be expected. Thus, allowing for some margin of safety (given the
risk associated with falling off a 28 foot highwall) even exactly seven feet from the edge of the
highwall falls into an area in which mine management should have concluded that fall protection
was needed. As evident from the testimony and the MSHA “Fall Prevention on Highwalls”
power-point presentation admitted into evidence, the six feet guideline applies to stable crests
and perfect conditions, which are rarely seen in real life. Respondent’s management had to have
known that at the very least workers were coming up close to that six-foot threshold.
Respondents’ after-the-fact assertion that workers were no closer than seven feet from the
highwall edge just outside the fall hazard zone of a stable crest appears contrived and unworthy
of belief. Even if Inspector Hopp’s and Supervisor Steichen’s two to three foot estimation of the
distance from the edge of the highwall to the first set of bore holes is doubled to four to six feet
on a stable crest or tripled to six to nine feet allowing for an unstable crest, fall protection would
have been necessary. Simply put, given the conditions Respondent should have clearly
recognized the hazard and required fall protection. Accordingly, I find the testimony of
Inspector Hopp and Supervisor Steichen to be credible and will uphold the citation.

Additionally, Respondent argued through the use of Porter’s interpretation of flyrock
charts that any scenario with boreholes two to three feet from the edge of the highwall could not
have produced a blast as “normal” as the one that occurred on the day of the inspection. I find
that the vague sources Porter used, particularly when coupled with the fact that Porter was not
available to testify, significantly reduce the weight Porter’s conclusions can be given. The
Secretary of Labor was convincing in her use of the expert testimony of Thomas Lobb to rebut
Respondent’s arguments. Lobb's examination of the blast report and flyrock charts submitted
into evidence indicated that there are several variables and factors that play into how far flyrock
travels after a blast, and that the chart used by Respondent could not support their conclusion
that the holes must have been farther than six feet from the edge of the highwall. Tellingly,
Lobb's testimony was not at all questioned, challenged or discredited by Respondent. Tr. 274. I
find his testimony and evaluation of the evidence to be effective in rebutting Respondent's
arguments.

In sum, I find the testimony of Inspector Hopp and Supervisor Steichen supported by
their notes as well as the detailed description of the blasting process given by Lobb to be credible
and that Respondent’s employees failed to wear fall protection in an area where boreholes were
closer than six feet from the edge of a highwall, in violation of 30 C.F.R. § 56.15005.

B.  Significant and Substantial Designation

Inspector Hopp issued this citation as a “significant and substantial” (S&S) violation,
which is described in section 104(d)(1) of the Act as a violation “of such nature as could
significantly and substantially contribute to the cause and effect of a coal or other mine safety or
health hazard.” 30 U.S.C. § 814(d)(1). A violation is S&S “if based upon the particular facts
surrounding the 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 (Apr. 1981). In determining whether a violation is S&S, the
Commission has identified four elements that the Secretary of Labor must prove: 

[I]n order to establish that a violation of a mandatory safety
standard is significant and substantial under National Gypsum, the
Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard--that is, a
measure of danger to safety--contributed to by the violation; (3) a
reasonable likelihood that the hazard contributed to will result in
an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck
Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary,
861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec.
1987) (approving Mathies criteria).

As noted above, I affirm the citation as written and hold that there was a violation of
mandatory safety standard 30 C.F.R. § 56.15005, as fall protection was not worn in an instance
where it should have been. This violation does contribute to a discrete safety hazard, that is, the
danger of a miner working without fall protection falling over the edge of the highwall.

The third Mathies criterion, in which the Secretary must establish that there is a
reasonable likelihood that the hazard will result in an injury, has been clarified further by the
Commission:

[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).

U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). In this case, the
hazard contributed to, that is, the potential trip and fall scenario the inspectors were concerned
about, would almost certainly result in a serious injury or even death. I have found that workers
were approximately two to three feet (seven to nine feet if Respondent’s witnesses are to be
believed) from the edge of a 28 foot highwall littered with “rubble” from blasting paraphernalia,
tools and equipment and piles of drill tailings. Thirteen fatal grams submitted into evidence by
the Secretary indicate that even falls from significantly shorter distances can result in death.
GEs 9-21. The fatal grams, and the designation of this particular standard as “the single most
common safety violation found in mining deaths” all prove a reasonable likelihood that this
injury would be very serious at best, and most likely fatal.

It should be noted that the significant and substantial evaluation is made in consideration
of the length of time that the violative condition existed prior to the citation, and the time it
would have existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC
899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574. In this instance, the
violative condition would most likely have existed beginning with the drilling of boreholes
estimated to have occurred the day prior to the inspection through the blasting process, since
Respondent failed to require the miners to wear fall protection. Tr 61-62. However, the only
evidence presented regarding the length of time the violative condition existed was Inspector’s
Hopp’s estimate that it could have taken up to 30 minutes on the day of inspection to load the
front row of boreholes with shot. Tr 61-62. With regard to drilling the boreholes he stated he
really didn’t know who or when they would have been drilled and did not provide an estimate of
how long that process would have taken. Id. While somewhat unclear I find it reasonable to
conclude that at a minimum the miners would have been exposed to the hazard for at least a total
of 30 minutes. Accordingly, in light of all the evidence and the four Mathies factors, I uphold he
significant and substantial designation on this citation.

C.  Negligence

Negligence “is conduct, either by commission or omission, which falls below a standard
of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. §
100.3(d). “A mine operator is required to be on the alert for conditions and practices in the mine
that affect the safety and health of miners and to take steps necessary to correct or prevent
hazardous conditions or practices.” Id. Low negligence exists when “[t]he operator knew or
should have known of the violative condition or practice, but there are considerable mitigating
circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known
of the violative condition or practice, but there are mitigating circumstances.” Id. High
negligence exists when [t]he operator knew or should have known of the violation, condition or
practice and there are no mitigating circumstances. Id. See also Brody Mining, LLC, 2011 WL
2745785 (2011) (ALJ). Finally, the operator is guilty of reckless disregard where it “displayed
conduct which exhibits the absence of the slightest degree of care.” Id. MSHA considers
mitigating circumstances which may include, but are not limited to, actions taken by the operator
to prevent or correct hazardous conditions or practices. Id.

Here, Inspector Hopp determined the negligence level to be high because there had been
discussion ahead of time between Foreman Crumley and Blaster-in-Charge Kennison that there
might be a need for fall protection. Tr. 50, 62; GE 2. It should be noted that neither Crumley
nor Kennison acknowledge in their testimony that they had discussed the necessity of fall
protection immediately prior to the inspection. However, I credit the notes taken by Inspector
Hopp in his citation/order documentation taken on the day of the inspection to confirm that said
discussion did occur along with his testimony that there had been a meeting the morning of the
inspection where use of fall protection was discussed. GE 3; Tr. 50. As a foreman Crumley is a
member of management, and Blaster-in-Charge Kennison testified he is in charge and thus, a
member of management in the absence of Crumley. Tr. 219. Accordingly, there is no question
that management through both Crumley and Kennison was aware or should have been aware that
fall protection was needed. This is compounded by the fact that Foreman Crumley was aware at
the time of inspection that another operator had been recently cited in the area for the same issue
– failure to wear fall protection. GE 2; Tr. 168- 70. Finally, no evidence of mitigating
circumstances was presented at hearing to merit reducing the level of negligence. Accordingly, I
find that Inspector Hopp appropriately designated the violation at issue as an act of high
negligence.

D.  Unwarrantable Failure

This citation was issued as an “unwarrantable failure,” which has been defined by the
Commission as “aggravated conduct constituting more than ordinary negligence.” Emery
Mining Corp., 9 FMSHRC 1997 (Dec. 1987). The Commission has stated that whether a
citation is an “unwarrantable failure” is a question that should be evaluated based on the facts
and circumstances in each case, and in light of each of the following factors: 1) the length of
time that the violation has existed; 2) the extent of the violative condition; 3) whether the
operator has been placed on notice that greater efforts were necessary for compliance; 4) the
operator’s efforts in abating the violative condition; 5) whether the violation was obvious or
posed a high degree of danger; and 6) the operator’s knowledge of the existence of the violation.
See Consolidation Coal Co., 22 FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346
(Dec. 2009). Because supervisors are held to a high standard of care, another important factor
supporting an unwarrantable failure determination is the involvement of a supervisor in the
violation. REB Enters, Inc., 20 FMSHRC 203, 225 (Mar. 1998). Judges must consider each of
these factors in light of the evidence in order to reach a determination as to whether a citation is
an unwarrantable failure.

Inspector Hopp testified he was unsure of the length of time the miners were exposed to
the hazard on the day of inspection but estimated that it could have been a half an hour for
loading shot. Tr. 61. The extensiveness factor involves consideration of the scope or magnitude
of a violation, not an additional consideration of dangerousness or obviousness. Eastern
Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010). I have already found that at least
some of the boreholes were as close as two to three feet from the crest of the highwall. As to
scope or magnitude I thus find that up to two miners were at a high risk of falling, albeit for a
short period of time up to approximately 30 minutes. Between April 14, 2009 and July 13, 2010
Respondent had no other violations of 30 C.F.R. § 56.15005 and in fact had only been cited four
times for non-S&S violations for a total amount of $417.00 in assessed penalties thus there is no
indicia Respondent’s violation history put them on prior notice that greater efforts to comply
with the fall protection standard were necessary. GE 22. Both Inspector Hopp and MSHA
Supervisor Steichen noted in their testimony that Respondent immediately abated the violative
condition by donning fall protection in their presence thus terminating the citation. Tr. 70-71,
193- 94.

However, I find that the violation was open, obvious and as noted posed a high degree of
danger even for a relatively short time. Hopp testified that the level of danger was so high that,
had the inspectors arrived while shot was being loaded into the front holes, they would have
issued an imminent danger order. Tr. 63. I also noted above that even in the event the miners
were two to three times the distance farther back from the crest of the highwall than what both
Hopp and Steichen credibly attested to, fall protection should have been worn while loading the
first line of boreholes. Clearly, 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). Thirteen fatal grams convincingly demonstrate that a fall from
a 28 foot highwall would have most likely resulted in death. A combination of safety
information via wide circulation of fatal grams, MSHA’s “Rules to Live By” and MSHA’s fall
prevention PowerPoint presentation were certainly available to the Respondent. As Hopp
testified, fatal grams are available to the public, and fatalities are generally discussed with mine
operators during MSHA inspections. This evidence shows that management officials should
have been on notice that fall protection was needed to prevent fatalities while working under the
cited conditions. In addition, Hopp and Steichen testified that they spoke with mine
management about the need for fall protection, and Foreman Crumley appeared to be aware or at
least recognized the need for it. Hopp also testified that Crumley knew of another quarry in
which a similar citation had recently been issued, which again, indicates awareness of a potential
hazard and the need for fall protection more generally. Tr. 121. There is no question that
Respondent, through Crumley and Kennison (as the foreman in charge when Crumley was
absent), was aware fall protection was necessary under these circumstances. Accordingly, I find
their negligence in not using fall protection on the day of the citation to be an unwarrantable
failure.

IV. PENALTY

Commission Administrative Law Judges (ALJs) have the authority to assess penalties
under the Mine Act de novo, as stated in Section 110(i) of the Mine Act, which delegates to the
Commission and its judges “authority to assess all civil penalties provided in [the] Act.” 30
U.S.C. § 820(i). The Act requires Commission ALJs to consider the following six penalty
criteria when assessing penalties:

[1] the operator’s history of previous violations, [2] the
appropriateness of such penalty to the size of the business of the
operator charged, [3] whether the operator was negligent, [4] the
effect on the operator’s ability to continue in business, [5] the
gravity of the violation, and [6] the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.

30 U.S.C. §820(i). In keeping with this statutory requirement, the Commission has held
that “findings of fact on the statutory penalty criteria must be made” by its judges. Sellersburg
Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). Once
findings on the statutory criteria have been made, a judge’s penalty assessment for a particular
violation is an exercise of discretion, which is “bounded by proper consideration of the statutory
criteria and the deterrent purpose[s] . . . [of] the Act. Id at 294; Cantera Green 22 FMSHRC
616, 620 (May 2000).

Notably, the penalty for the citation at issue was specially assessed because of the fact
that the fall protection standard was one of MSHA’s “Rules to Live By,” as noted by Inspector
Hopp during his testimony. Tr. 73. MSHA’s “Rules to Live By” identify 24 standards that are
frequently cited in fatal accident investigations, and provide reference materials for operators to
learn about these standards and how to stop common yet preventable fatalities. GE 5. Since
operators have been put on notice and given resources about ways to prevent these specific types
of accidents, higher penalties are generally assessed for citations in this category. Tr. 73.

As noted in the previous discussion regarding unwarrantable failure Respondent has been
cited four times since April 14, 2009, for non-S&S violations none of which involve the fall
protection standard cited in this case. GE 22. With regard to Respondent’s size I find that the
proposed penalty is appropriate given that Respondent has up to twelve miners employed at the
subject Sunflower Quarry and operates several other mines in the area. Tr. 30, 32. Also noted
above I have found Respondent to be highly negligent with regard to the subject citation. I
accept the parties’ stipulation that the proposed penalty will not affect Respondent’s ability to
remain in business. Finally, noted above I have found the gravity of the negligence to be
reasonably likely and fatal, significant and substantial and an unwarrantable failure. I recognize
and accept the parties’ stipulation that Respondent demonstrated good faith in abating the
violation.

Considering all of the circumstances I find that the proposed penalty of $4,900.00 meets
the deterrent purposes of the Mine Act and is therefore appropriate The total penalty in this
instance for violating the fall protection standard, 30 C.F.R. § 56.15005 shall be $4,900.00.

V. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. 820(i), I assess the
penalty listed above for a total penalty of $4,900.00 for the citation decided after hearing. Hunt
Martin Materials, Inc., is hereby ORDERED TO PAY The Secretary of Labor the sum of
$4,900.00 within 30 days from the date of this decision.

/s/ David P. Simonton

David P. Simonton

Administrative Law Judge

Distribution:

Letha Miller, U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800,
Denver, CO 80202

Scott Wircenske, HR/Safety Manager, Martin Marietta Materials, 11900 West 87th St. Parkway,
Ste. 200, Lenexa, KS 66215