Secretary of Labor v. The Doe Run Company

Plain-English summary

The Doe Run Company operated the Buick Mine/Mill, which mined lead, copper, and zinc in Missouri. An electrician climbed onto a cabinet more than seven feet above a concrete floor in a darkened electrical room without fall protection while preparing to pull cable. Judge Margaret A. Miller rejected the argument that the cabinet's small top and a wall 32 inches away made a fall unlikely. She found the violation significant and substantial because a misstep while maneuvering or pulling cable could cause a serious or fatal fall. The judge also found high negligence and unwarrantable failure because the trained electrician knowingly worked without tying off and his supervisor should have seen and stopped the obvious condition. The citation was affirmed as issued, and Doe Run was ordered to pay the proposed $2,106 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 57.15005
• Outcome: The citation, S&S designation, high-negligence finding, unwarrantable-failure finding, and $2,106 penalty were affirmed.
• Key point: A short exposure can still be serious and unwarrantable when a trained miner works at height without fall protection in plain view of a supervisor.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19TH
ST. SUITE 443

DENVER, CO 80202-2500

TELEPHONE: (303)
844-5266 / FAX: (303) 844-5268

June
12, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION, (MSHA),

Petitioner,

v.

THE DOE RUN COMPANY,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. CENT 2013-605-M

A.C. No. 23-00457-325635-01

Mine: Buick Mine/Mill

DECISION

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

R. Henry Moore, Jackson Kelly,
PLLC, Pittsburg, PA, for Respondent.

Before:                        Judge Miller

This case is before me on a
petition for assessment of civil penalty filed by the Secretary of Labor, Mine
Safety and Health Administration (“MSHA”) against The Doe Run Company (“Doe Run”)
at its Buick Mine/Mill, pursuant to sections 105 and 110 of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820. This docket involves one
citation with a penalty assessed pursuant to section 110(i) of the Mine Act.  The
parties presented testimony and evidence at a hearing held on April 17, 2014 in
St. Louis, Missouri.

The parties agree that Doe Run
is an operator as defined by the Act, and is subject to the jurisdiction and provisions
of the Mine Safety and Health Act. The parties further agree that the citation
was abated within the allowed time and the penalty of $2,106.00 will not
inhibit the mine’s ability to continue in business. Jt. Stip. 11. Buick Mine/Mill
consists of an underground mine that mines lead, copper and zinc, and a surface
mill. The mine is located near Rolla, Missouri.

I.  FINDINGS OF
FACT AND CONCLUSIONS OF LAW

On May 15, 2013, Inspector Dale
Coleman with the Department of Labor’s Mine Safety and Health Administration
(“MSHA”) issued Citation No. 8688248 under section 104(d)(1) of the Act for an
alleged violation of 30 C.F.R. § 57.15005, which requires that “safety belts
and lines shall be worn when persons work where there is danger of falling.” The
citation alleges that a miner was working while standing on top of an
electrical cabinet that was seven feet tall, without wearing fall protection. Inspector
Coleman designated the alleged violation as reasonably likely to result in a permanently
disabling injury, significant and substantial, one person affected, and the
result of high negligence on the part of the operator. The Secretary proposed a
penalty of $2,106.00 for this citation.

On May 15, 2013, two
electricians, Marion Mills and Kevin Brady, were assigned to change out an
electrical switch in the motor control room (“MCC”) at the mine. Mills and
Brady were both experienced miners. Andrew Wlaschin, an electrical engineer,
was responsible for supervising and directing the work of Mills and Brady while
they completed the job. Wlaschin had been at the mine for less than a year and,
while he had worked on various projects, had never performed the job which had
been assigned to Mills and Brady.

The assigned task required the
two electricians to disconnect a cable in an electrical cabinet and pull the
cable out from inside its location. The top of the cabinet, which is roughly 34
inches by 36 inches in area, is approximately 7 feet, 7 inches above the cement
floor below. Two pipes extend vertically from the top of the cabinet to the
ceiling above.

Prior to beginning the work, the
electricians locked out power to the cabinet at a substation location. Locking
out the power to the cabinet and work area also disabled the lights in the work
area. As a result, the electricians worked with cap lamps and flashlights. After
locking out the power, Mills removed the door on the high voltage center, and
then moved to an adjacent cabinet to remove another door. Brady helped Mills
with the removal and, as Mills began disconnecting the cable within the box, Wlaschin
reminded Brady that he was required to wear a respirator. Brady left the area
for a short time to locate the respirator and when he returned saw that Mills
was inside the cabinet disconnecting the cable and Wlaschin was at his side. Brady
then got a ladder, which he positioned next to the cabinet and climbed to the
top of the cabinet to help pull the cable.

Wlaschin saw Brady return with
his respirator, get the ladder, and climb to the top of the cabinet, but he asserts
that he was distracted by watching Mills and looking at prints, and did not see
Brady step off of the ladder and climb on top of the cabinet. According to
Wlaschin, he only noticed that Brady was on top of the cabinet after being told
by the inspector that Brady was required to come down or have fall protection. Wlaschin
acknowledged that he did not see any harness or other safety device on Brady as
he climbed the ladder.

Inspector Coleman testified that
when he entered the room it was dark, although there was some ambient light. However,
he immediately noticed movement and saw someone wearing a cap lamp while standing
near the edge of the top of the cabinet. When Coleman shined his flashlight
toward the top of the cabinet he saw Brady standing near the pipes, preparing
to guide the cable. The top of the cabinet was flat and dry and it would have
taken Brady a few minutes to pull the cable from that position. Coleman asked
Wlaschin if Brady should be on the top of the cabinet without fall protection. Wlaschin
testified that he responded to the question and agreed that Brady should have
been wearing fall protection. Coleman remembers that Wlaschin did not agree and
argued that fall protection was not necessary. Either Wlaschin or Coleman asked
Brady to come down and he complied. As Brady made his way down, Wlaschin
secured the ladder and Brady grabbed onto the cable tray above his head. Sec’y
Ex. 2. However, Brady acknowledged that the cable tray was not strong enough to
use as a place to tie off and that he saw nothing he could use as an anchor. Coleman
testified that it was clear to him that Wlaschin had to see Brady on the top of
the cabinet and failed to take any action as his supervisor.

Wlaschin, the supervisor, did
not indicate to the inspector that he was unaware of Brady’s position. Rather,
Brady and Wlaschin told the inspector that there was no hazard and fall
protection was not necessary. Brady explained that, because he was working in
the middle of the area on top of the cabinet, and given the presence of a wall
roughly 32 inches from the edge of the cabinet, there was no risk of falling. Brady
acknowledged that he had been trained in the use of fall protection, and fall
protection was available nearby for his use. Further, he testified that it was
the company policy to use fall protection and he realized he may face disciplinary
action for failing to do so.

The mandatory standard requires
that any person working in an area where there is a danger of falling must use
fall protection. Brady was not wearing a safety belt and line, and was working
in a small area atop a 7 foot 7 inch tall electrical cabinet, with a concrete
floor below. Brady asserts that he was not in danger of falling due to working
in the middle of the area on top of the cabinet and the presence of a wall
approximately 32 inches from the edge of the top of the electrical box, which
he could have used to catch himself had he lost his balance. I find these
arguments to be entirely without merit. The area had no handrails or other
protective devices which could have been used by Brady had he lost his balance.
Further, working near the middle of a roughly nine square foot area, some of
which was taken up by the pipes which extended up from the cabinet, still
placed him perilously close to the edge of the cabinet. Furthermore, his belief
that the wall 32 inches away from the edge of the electrical box would have
prevented a fall is unreasonable. A miner should not, and must not, be expected
to arrest themselves from falling by catching themselves against a wall 32
inches away from the surface they are standing on. Moreover, these miners were
operating in an unlit room with only cap lamps and flashlights. I credit
Coleman’s testimony that pulling cable can cause a miner to lose their balance.
While Brady had not yet begun to pull the wire, he testified that he would have
done so had he not been ordered down. Pulling wire would have exposed him to
the hazard to a greater degree. I find that any misstep or loss of balance
would have resulted in Brady falling over seven feet to the concrete floor
below. Clearly a danger of falling existed. Given the location of the cabinet,
its height, and that Brady was focused on removing cable, I find that there was
a danger of falling, and hence, Brady should have been wearing fall protection.
Accordingly, I find that a violation of the cited standard existed.

I also find that the violation
was significant and substantial. A “significant and substantial” violation is
described in section 104(d)(1) of the Mine 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)(l). A
violation is properly designated significant and substantial “if based upon the
particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement Division, National Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984), the Commission explained its interpretation of the term “significant and
substantial” to be:

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

I have already found a violation
of the cited standard. Moreover, I find that a discrete safety hazard existed;
the danger of falling from a height of more than seven feet and landing on the
concrete floor below.

The difficulty with finding a
violation S&S normally comes with the third element of the Mathies formula,
in which the Secretary must establish that there is a reasonable likelihood
that the hazard will result in an injury. In U.S. Steel Mining Co., Inc.,
7 FMSHRC 1125, 1129 (Aug. 1985). The Commission has explained that the third
element of the 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). This evaluation is made in consideration of the length of time
that the violative condition existed prior to the citation, and the time it
would have existed if normal mining operations had continued. Elk Run Coal
Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 6
FMSHRC 1573, 1574 (July 1984). In addition, the question of whether a
particular violation is S&S is a circumstantial inquiry that must be based
on the particular facts surrounding the violation. Texasgulf, Inc., 10
FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007
(Dec. 1987). The Commission and courts have also observed that an experienced
MSHA inspector’s opinion that a violation is significant and substantial is
entitled to substantial weight. Harland Cumberland Coal Co., 20 FMSHRC,
1275, 1278-79 (Dec. 1998); Buck Creek Coal Inc., 52 F.3d 133, 135 (7th
Cir. 1995).

I find that there was a
reasonable likelihood that the hazard would have resulted in an injury. Although
Brady insists that he was only on top of the cabinet for a short time and he
might be able to catch himself on the wall 32 inches away, I agree with Coleman
that it is likely that he would fall from the top of the cabinet. In evaluating
the level of exposure, I have considered the length of time the violation
existed both before and after the inspector arrived. Brady acknowledged that he
was on top of the cabinet preparing to pull wire prior to the inspector
entering the room, and attests that he would have followed through had he not
been ordered down. I find that, while the time of his exposure may have
amounted to only minutes, there was more than enough time for Brady to fall. First,
the area on the top of the cabinet was small for one person to stand on and
some of that area was obstructed by the pipes which extended upward from the
center of the cabinet. Given the size of the area, the obstructions present, and
Brady’s position of working with his back to the edge of the cabinet, it is
difficult to imagine how he could safely maneuver while maintaining his balance.
Second, the area was dark. While the inspector testified that there was some
ambient light present, Brady asserted that there was none. Accordingly, if
Brady’s testimony is to be taken at face value, then the only light he had to
work with was that which was provided by the cap lamp. The lack of light and
the inability to fully see his surroundings certainly contributes to the
likelihood of a fall. Third, Brady’s balance would have been compromised because
he would have needed both hands to pull and direct the cable that was being
removed from the cabinet. I credit Coleman’s testimony that pulling cable can
cause a miner to lose his balance. Had Brady lost his balance, it is likely he
would have attempted to arrest his fall by grabbing the cable tray, which he
relied upon and grabbed to steady himself when descending the ladder. Notably,
Brady conceded the cable tray could not support his weight. Given the
circumstance, I find it likely that he would have fallen had the inspector not
addressed the situation.

The normal actions of miners
must be considered in determining whether a violation is S&S. In discussing
the injuries related to guarding in Thompson Bros. Coal Co., 6 FMSHRC
2094, 2097 (Sept. 1984), the Commission took into account “inadvertent
stumbling or falling, momentary inattention, or ordinary human carelessness”
and explained that “in related contexts, we have emphasized that the
constructions of mandatory safety standards involving miners behavior cannot
ignore the vagaries of human conduct.” See, e.g., Great Western Electric,
5 FMSHRC 840, 842 (May 1983); Lone Star Industries, Inc., 3 FMSHRC 2526,
2531 (Nov. 1981). Here, a simple misstep, inadvertent stumble, or moment of
inattention would have resulted in Brady falling more than seven feet to the
concrete floor below.

The inspector testified that he
is aware of a number of falls from such heights, including a fall in which a
miner was attempting to pull cable prior to losing his balance and falling. Coleman
explained that there have been fatalities in the mining industry as a result of
falls from this height. I credit Coleman’s testimony and agree that falling
from a height of more than seven and a half feet, as measured by the inspector,
would result in a serious injury. It is reasonably likely that the miner would
strike his head, break a bone, or receive other serious injuries due to the impact
on the floor. The injuries would be permanently disabling or even fatal. Consistent
with my above analysis, I find that the violation is significant and
substantial.

I also
find that the violation was a result of the mine operator’s high negligence. The
Secretary’s regulations explain that “high negligence” exists when “the
operator knew or should have known of the violative condition or practice, and
there are no mitigating circumstances.” 30 C.F.R. § 100.3(d), Table X (defining
“high negligence”). The Secretary argues that Doe Run “should have known of the
violation, and presented no mitigating factors.” Sec’y Br. 11. I agree, and
find that the operator either knew or should have known of the violation and
that there were no mitigating circumstances.

Inspector
Coleman testified that, based on Wlaschin’s reaction to the inspector’s initial
identification of the hazard, it was his belief that the supervisor, Wlaschin,
knew or at the very least should have known, that Brady had climbed the ladder
and was standing on top of the cabinet without fall protection. Specifically,
Coleman noted Wlaschin’s lack of surprise that Brady did not have fall
protection on, Wlaschin’s denial that fall protection was needed, and the
absence of any argument presented by Wlaschin at the time of the incident that
he did not know Brady was on top of the cabinet. While Wlaschin acknowledged
that he was aware that Brady had begun to ascend the ladder, he claims that he did
not know Brady was on top of the cabinet. Moreover, Wlaschin claims that,
contrary to Coleman’s testimony, he did tell the inspector that he did not know
that Brady had climbed on top of the cabinet.

I
credit the inspector’s testimony and find that Wlaschin had knowledge that
Brady was on top of the cabinet without fall protection. While the area was
dark, it is undisputed that Wlaschin saw Brady move the ladder into place and
climb up without fall protection. I find it curious, at best, that, immediately
upon seeing Brady begin to ascend the ladder, Wlaschin became distracted by
Mills’ work and the blueprints he was holding on to.[1] Moreover, I find it unlikely that he
couldn’t hear Brady moving on top of the large metal cabinet or see the light
of Brady’s cap lamp as he moved above. Tr. 62. I find that Wlaschin’s testimony
amounts to revisionist history of the events and, accordingly, credit the
inspector’s testimony and find that Wlaschin had knowledge of the violative
condition. Moreover, I credit Coleman’s testimony and agree that no mitigating
circumstances existed. Accordingly, I find that Wlaschin, exhibited high
negligence.

Doe
Run, in arguing that the high negligence finding is not supported, states that
Brady’s conduct “was an isolated incident involving one miner who disregarded
the company’s policy, his training, and the availability of fall protection
equipment” and that his negligence cannot be imputed to the operator. Resp. Br.

11. However, this argument, along with other arguments in its post hearing
    brief, ignores my above findings regarding Wlaschin’s high negligence. Undoubtedly,
    Brady acted with extreme negligence and has admitted as much. However, Brady
    was a rank-and file miner, whose negligence generally cannot be imputed to the
    operator. Whayne Supply Co., 19 FMSHRC 447, 451, 453 (Mar. 1997);
    Fort Scott Fertilizer-Cullor, Inc., 17 FMSHRC 1112, 1116 (July 1995); Southern
    Ohio Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982)(“SOCCO”); Reading
    Anthracite Co., 32 FMSHRC 399, 411 (Apr. 2010) (ALJ). Wlaschin, on the
    other hand, was a supervisor, whose negligence can be imputed. See generally
    Capitol Cement Corp., 21 FMSHRC 883, 894 (Aug. 1999). Wlaschin offered
    testimony that he was relatively new to the mine, had far less experience than
    the two electricians he was observing, and hinted that he wasn’t really a
    supervisor because he was learning from the electricians and had never
    completed this specific task in the past. However, he was the one who noticed
    that Brady was not wearing his required respirator before starting the job, and
    signed the reprimand for Brady as his supervisor. Therefore, I find that
    Wlaschin was the supervisor in charge of the job. This finding is further
    supported by Brady’s testimony that Wlaschin was his supervisor. While Wlaschin
    is young and was only at the mine for about a year prior to the incident, he is
    well educated and agreed that he had training on the mine’s fall protection
    policy. I find that the totality of the evidence requires a finding that the
    violation was due to a combination of Brady’s and Wlaschin’s high negligence,
    and that Wlaschin’s negligence may properly be imputed to the operator.

I also
find that the violation was a result of the operator’s unwarrantable failure to
comply with the mandatory standard. The unwarrantable failure terminology is
taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more
serious conduct by an operator in connection with a violation. In Emery
Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Id. at 2001. Unwarrantable failure is characterized by such
conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a
“serious lack of reasonable care.” Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”); see
also Buck Creek Coal, Inc., 52 F.3d at 136 (approving
Commission's unwarrantable failure test).  The Commission has explained 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). All of
the relevant facts and circumstances of each case must be examined to determine
if an actor's conduct is aggravated, or whether mitigating circumstances exist.
Consol, 22 FMSHRC at 353. 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) (Commissioner Marks,
concurring in part and dissenting in part).

The
condition did not exist for an extended period of time, nor was it particularly
extensive, and the operator was prompt in abating the condition. It is
undisputed that Brady was only on top of the cabinet for a few minutes. However,
while only a few minutes would have been needed to complete the task at hand,
only a moment of inattention was needed for a misstep, or loss of balance, to
result in a fall. Coleman assumed, and Brady confirmed, that Brady would have
worked without fall protection if Coleman had not entered onto the scene. Nonetheless,
when told to come down, Brady did so immediately and did not complete the job
until toggle bolts were installed so that he could safely tie off. The
violative condition was confined to a small area, on one job, and one
electrician who decided he could quickly pull the cable without having to
locate and put on fall protection. While these three factors arguably weigh in
the favor of the operator, the same cannot be said for the other factors.

The
condition was obvious. Coleman testified that almost immediately upon entering
the room he noticed movement on top of the cabinet. While the room was dark,
Brady’s cap lamp was plainly visible and clearly revealed his location on top
of the cabinet. There is no dispute that Brady was not wearing fall protection
and that he was working at a height of over seven feet above the concrete
floor. Given my above findings regarding Wlaschin’s knowledge of Brady’s
location and lack of fall protection, and his proximity to violative condition,
I find that the condition was obvious and easily seen by Wlaschin despite his
testimony to the contrary.

The
degree of danger and level of exposure presented by the condition are discussed
in detail above in the context of my S&S analysis. Similarly, the
operator’s knowledge of existence of the violation is discussed in detail above
in my negligence analysis. Nevertheless, it is worth reiterating that, given
the surrounding circumstances, Brady’s blatant disregard of law and Wlaschin’s
failure to uphold the “high standard of care” required of mine operators made
it reasonably likely that Brady would fall and suffer a serious injury. See
30 C.F.R. § 100.3(d). The Commission has long held that the negligence of a “rank-and-file”
miner cannot be imputed to the operator for civil penalty purposes. Fort
Scott, 17 FMSHRC at 1116; Western Fuels-Utah, Inc., 10 FMSHRC 256,
260-61 (Mar. 1988); SOCCO, 4 FMSHRC at 1464. The Commission has further
determined that “where a rank-and-file employee has violated the Act, the
operator’s supervision, training and disciplining of its employees must be
examined to determine if the operator has taken reasonable steps
necessary to prevent the rank-and-file miner’s violative conduct.” SOCCO
at 1464 (emphasis in original). Finally, while this standard is normally
applied in determining the operator’s negligence for penalty purposes, the
Commission has confirmed that it also applies in determining whether an
operator can be held responsible for a miner’s aggravated conduct and, thus, be
found to have unwarrantably failed to comply with a regulation. Whayne
Supply Co., 19 FMSHRC 447, 452-53 (Mar. 1997). In this case, I am
particularly concerned that Brady, who agreed he had been trained, blatantly
ignored the requirement to tie off. Brady is not a supervisor, but his training
and any discipline at the mine obviously were not sufficient to cause him to
follow the rules.

The
mine had been placed on notice that greater efforts were necessary for
compliance. The inspector testified that he addressed the issue twice with the
operator during inspections over the previous two years. In one instance,
Coleman issued a citation where a miner was not tied off correctly while
working at height. During a second inspection he had a conversation with the
operator regarding its failure to have tie off points in an elevated area that
was accessed by miners. In the course of those conversations he discussed with
the mine the need to “improve [tie off] . . . points and focus on fall
protection better.” Tr. 32. While I agree with the operator that, on its face,
the limited history of violations does not provide an especially strong case
that notice was provided, I credit Coleman’s testimony that he did have
conversations with the mine regarding the need to focus on fall protection
after he identified a place in the mine where miners worked in an elevated area
without tie off points. Similarly, here, tie off points were also not available
in the area where a miner was working. While Doe Run argues that these two
events were not part of Coleman’s calculus of the unwarrantable failure
designation, I find that the facts bear out that the mine was on notice. Accordingly,
I find that Coleman did place the mine on notice that greater efforts were
necessary for compliance.

I have
already found that both Brady and Wlaschin exhibited high negligence. They both
knew that Brady should not be working at a height of over seven feet without
fall protection, yet, Brady chose to do so and Wlaschin chose to keep his
attention elsewhere. In doing so, Brady engaged in intentional misconduct and
his supervisor exhibited a serious lack of reasonable care, both of which are
indicative of “more than ordinary negligence.” Wlaschin’s conduct cannot be
excused because he is relatively new or has less experience than the electricians
he worked with at the time of the violation. He is well-educated and as a
supervisor should know the rules about working safely. While the condition may
have been short-lived, it was a serious hazard that was ignored, and could have
quickly led to a fall, which would have resulted in a serious and potentially fatal
injury. Therefore, I agree that the violation was an unwarrantable failure.

II.  PENALTY

The
principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well
established.  Section 110(i) of the Mine act delegates to the Commission and
its judges “authority to assess all civil penalties provided in [the] Act.” 30
U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the
Commission to assess the penalty. 29 C.F.R. § 2700.28. The Act requires, that
“in assessing civil monetary penalties, the Commission [ALJ] shall consider”
six statutory penalty criteria which include the history of violations, the
size of the operator, the negligence, gravity, the ability to continue in
business and good faith abatement. 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).

In the
instant case, the operator is large, has no unusual history of these types of
violations, and abated the condition in good faith. The inspector indicated
that the negligence was high and, given the facts as discussed above, I agree. I
have discussed the gravity and S&S nature above and find that a penalty of $2,106.00
as proposed by the Secretary is appropriate.

III.  ORDER

The
citation is affirmed as issued and Doe Run is hereby ORDERED to pay the
Secretary of Labor the sum of $2,106.00 within 30 days of the date of this
decision.

/s/
Margaret A. Miller    

Margaret A. Miller

Administrative Law Judge

Distribution:

Carol Liang, U.S. Department of Labor, Office of the
Solicitor, MSHA Backlog Project, 1999 Broadway, Suite 800, Denver, CO
80202-5708

R. Henry Moore, Jackson Kelly, PLLC, Three Gateway
Center, Suite 1500, 401 Liberty Avenue, Pittsburgh, PA 15222

[1] Wlaschin testified that he “saw Brady up on a ladder.
Then he went back in the cabinet when Brady wasn’t standing there anymore.” Tr.

59. I find this testimony puzzling. If Wlaschin saw Brady standing on the
    ladder, and then saw that Brady was no longer on the ladder, and could not be
    seen on the ground, it stands to reason that Brady had climbed up, gotten off
    of the ladder, and was on top of the cabinet. Yet somehow, if Wlaschin’s
    testimony is to be believed, he failed to make this connection. At the very
    least, based on his own testimony, I find that Wlaschin should have known
    where Brady was and, given that he knew Brady did not have fall protection on, should
    have known of the violative condition.