Secretary of Labor v. New NGC, Inc. and New NGC v. Secretary of Labor

Plain-English summary

New NGC operated the Harper Quarry, a small Texas surface gypsum mine where trucks made 30 to 60 daily trips along a narrow road beside a roughly 20-foot highwall. An MSHA inspector cited fractured rock on the wall as hazardous ground that could fall into the road or strike a vehicle, while the company argued that gypsum naturally cracks and the sloped face made danger unlikely. The Judge credited the inspector's firsthand observations and found a violation of the ground-control standard because loose rock could fall where haul trucks and pickup trucks traveled. He affirmed the S&S finding because a rock weighing up to about 600 pounds could cause a serious injury by striking a pickup or creating a roadway obstacle. The Judge reduced negligence from moderate to low based on post-blast scaling, daily inspections, and the quarry's safety history, and reduced the penalty from $138 to $100.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.3200
• Outcome: The S&S ground-control citation was affirmed, negligence was reduced from moderate to low, and the penalty was reduced from $138 to $100.
• Key point: Natural cracking in gypsum did not excuse visible loose ground where vehicles regularly traveled, but the operator's inspection and scaling practices mitigated negligence.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

July 13, 2016

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION, (MSHA),

Petitioner,

v.

NEW NGC, INC.,

Respondent.

NEW NGC, INC.,

Contestant,

v.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH    

ADMINISTRATION, (MSHA),

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. CENT 2015-155

A.C. No. 41-02822-368186

Mine: Harper Quarry

CONTEST PROCEEDING

Docket No. CENT 2015-37-RM

Citation No. 8854429; 10/08/2014

Harper Quarry

Mine ID 41-02822

DECISION

Appearances:   Maria C.
Rich, Conference and Litigation Representative,

U.S.
Department of Labor, 1100 Commerce Street, Room 462

Dallas, TX
75242 

Mary
Cobb, Solicitor,

U.S.
Department of Labor, 525 South Griffin Street, Suite 501

Dallas, TX
75202

Justin
Winter, Conn Maciel Carey PLLC

5335 Wisconsin
Ave., NW, Suite 660

Washington, DC
20015

Before:                         Judge Simonton

INTRODUCTION

This case is
before me on a civil penalty petition filed by the Secretary of Labor
(Secretary), acting through the Mine Safety and Health Administration (MSHA),
against New NGC, Inc. (Respondent), pursuant to the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. §§ 815 and 820. The single citation, contested at
hearing, involves alleged uncontrolled ground control hazards on a gypsum
highwall at the Respondent’s Harper Quarry surface mine site.

At hearing, MSHA
Inspector James Whetsell testified for the Secretary. New NGC Quarry Manager Henry
Wilson testified for the Respondent. Professional Mining Engineer John Head
also presented expert testimony for the Respondent. For the reasons that
follow, Citation No. 8854429 is AFFIRMED in full with the exception of
the assessed negligence level. Due to mitigating circumstances I find the
negligence level to be low rather than moderate thus the civil monetary penalty
shall be reduced from $138 to $100.     

I.                  
FINDINGS OF FACT AND SUMMARY OF TESTIMONY

New NGC operates
the Harper Quarry surface gypsum mine eighteen miles northwest of Harper, Texas.
Sec’y Ex. 4-1. At the time of the inspection at issue Harper Quarry had six
miners, including the quarry manager, working on 400 acres. Tr. 73. They were actively
mining a 250 foot east-west cut on the north wall. Tr. 74. The mining process
involves miners stripping overburden then blasting to extract gypsum from the
cut. Id. The miners drive Cat 740 articulated haul trucks along a haul
road at the base of the highwall to remove the gypsum to a processing area. Tr.
24, 37. The haul road at issue was 200 feet long and 15 feet wide in the
north-east section of the Quarry. Tr. 24. It was abutted by a small island to
the west and a 19-20 foot tall highwall to the east. Id; Sec’y Ex. 5.

On October 8,
2014, Inspector Whetsell conducted an inspection of the east highwall and determined
that it posed a hazardous ground condition to people using the 15 foot wide haul
road at the bottom of the highwall. Tr. 24; Sec’y Ex. 1-1, Resp. Ex. R-A. He
made his determination based on seeing vertical and horizontal cracks in the
rock. Tr. 17, 22; Sec’y Ex. 1-1. Both parties presented testimony stating that
fractures like the ones here could be a sign of loose rock. Tr. 17, 107. Loose
rocks are at risk of falling. Tr. 26, 108. Inspector Whetsell opined that the fractured
rock he observed were in his estimation upwards of 600 lbs. Tr. 26. Falling
rocks of that size can result in serious injury or a fatality. Tr. 40.

The east
highwall at issue was approximately twenty feet in height. Tr. 18, 30 & 97.
The parties disagree about the slope of the highwall. Tr. 44, 89; Resp. Ex. E. If
the highwall is sufficiently sloped and low, then falling rocks are more likely
to roll and “unlikely to impact the driver of the truck.” Tr. 105; Resp. Ex. E.
If the loose rocks are on a more vertical and tall face of the highwall,
they are more likely to fall and bounce making their landing unpredictable. Tr.

27. Inspector Whetsell maintained sections of the wall in question were near
    vertical. Tr. 44, 52. He further testified that rocks on the highwall might
    either roll, or fall and bounce. Tr. 27. The Respondent’s engineering expert
    Mr. Head testified that the angle of the slope was closer to 60-70 degrees. Resp.
    Ex. E. Mr. Head also submitted in his report that the rocks were at most fourteen
    feet from the ground. Id. Taking these two facts together, he concluded
    the rocks could only roll down the wall, not fall or bounce. Tr. 96. Inspector
    Whetsell and Mr. Head both agree that no matter how a rock separates from the
    highwall, it could potentially pose an obstacle to a haul truck or be a serious
    hazard to a pick-up truck. Tr. 34, 41, 99, 110.

The Respondent contends
that cracks in the rock at the Harper Quarry mine site are not indicative of
loose rocks because it is a gypsum mine. Tr. 95-96. Quarry Manager Wilson and Mr.
Head testified that large cracks are not unusual for gypsum and only if the
cracks move or grow do they pose a potential hazard. Tr. 86, 96, 106. Mr. Wilson
testified that in his observations he had not seen the cracks at issue grow any
larger during the weeks before the citation was issued. Tr. 86. Furthermore, Mr.
Wilson maintained that the time it took to perform the citation abatement is
evidence that the rocks were not loose. Tr. 82. Inspector Whetsell testified
that there are many factors, not just the looseness of the rock, that could
affect how long it takes to scale a highwall, and the time between issuing and
terminating the citation was not excessive. Tr. 33, 63. Based on Mr. Wilson’s
testimony, it took 30-45 minutes to scale the hazardous portions of the highwall.
Tr. 81-82. According to Citation No. 8854429, two hours and twenty five minutes
passed between issuance and termination of the citation. Tr. 32; Sec’y Ex. 1-1.
Neither Mr. Wilson nor Inspector Whetsell were present at the time of
abatement. Tr. 61-62, 86. Whether or not the abatement took an excessive amount
of time depends on how much of the highwall was scaled. Tr. 33, 82.

The exact size
and amount of highwall that needed to be scaled is indeterminable because the
dimensions relied upon are based solely on photos, and visual inspection by the
Quarry Manager and the Inspector. Tr. 29, 102. The Respondent contends the
loose rocks were only 12-14 feet high up on the wall pursuant to Mr Head’s
estimation and only a 20 foot or so length needed to be scaled according to
Quarry Manager Wilson. Tr. 87; Resp. Ex. E. The Secretary maintains the hazard
consisted of loose rocks closer to 17-19 feet high up and extended for 30 feet
or more. Tr. 45, 111; Sec’y Ex. 2-2. I would note here that Mr. Head did not
personally observe the fractured rocks or their location on the highwall prior
to abatement as did Inspector Whetsell and Quarry Manager Wilson did not offer
testimony regarding how far up the wall the fractured rock was observed. Accordingly,
I defer to Inspector Whetsell’s direct observations in this regard.

The inspector
was concerned about the hazard posed by this particular highwall in the quarry
since Mr. Wilson stated haul trucks would take anywhere between 30-60 trips
each day on the haul road below the highwall. Tr. 37, 75. Inspector Whetsell reported
seeing vehicle tracks and black smudging on the sides of the haul road
indicating where trucks had rubbed alongside the wall. Tr. 24; Sec’y Ex. 2-1,
Ex. 2-2. The two parties disagree over what types of vehicles used the haul
road. Tr. 22, 31, 75; Sec’y Ex. 1-1. Inspector Whetsell recorded in the
citation that a Cat 740B haul truck, a Volvo EC210BLC, and a Cat 980 front end
loader use the haul road. Sec’y Ex. 1-1, Resp. Ex. R-A. During testimony, Inspector
Whetsell further identified tracks in Sec’y Ex. 2-1 that he believes are
evidence of pick-up trucks using the haul road as well. Tr. 22, 31. Mr. Wilson
maintained that haul trucks and other large machinery used the haul road and
pick-up trucks did not. Tr. 31, 75. However, Mr. Wilson also testified he drove
his own vehicle, a pick-up truck, presumably on the haul road to inspect the
highwall the very morning of the inspection. Tr. 84-85. This is contrary to
what Inspector Whetsell states Mr. Wilson told him in that pick-up trucks never
travel on that haul road. Tr. 30. Also, based on his experience as a miner and inspector,
Whetsell speculated that the miners most likely used the haul road to enter and
exit the quarry. Tr. 31, 38, 55.

The types of
vehicles that use the road effects the level of danger the hazardous ground
condition poses to miners. Tr. 99, 110. Loose rocks could cause damage by
either rolling into the road or rolling directly into a vehicle. Tr. 29, 110. A
haul truck being hit by a rock sliding from 14 feet off the highwall might not impact
the operator. Tr. 99, Resp. Ex. E. However, if a pick-up truck was hit by a
rock falling from 17 feet it would cause a serious hazard. Tr. 110. In
addition, if any vehicle ran over, or attempted to avoid, a fallen rock it
could pose a serious hazard. Tr. 29. Depending on the vehicle, damage could
range from blowing out a tire, to losing control and flipping the truck over,
to direct damage to the operator. Tr. 29, 40, 48, 99, 110.

MSHA issued a proposed
penalty assessment of $138.00 for Citation No. 8854429. Sec’y Ex. 1-1. Respondent
contested Citation No. 8854429 claiming the rocks on the highwall were not
loose, and even if they were, did not present a danger to the miners who used
the haul road. Tr. 13.

II.               
PARTY ARGUMENTS

The Secretary
argues that the conditions in Harper Quarry violate 30 C.F.R. § 56.3200, the
violations are significant and substantial, and the operator was moderately negligent.
Sec’y Posthearing Brief 3. The Secretary maintains there was a violation
because like MSHA v. Hoover, 33 FMSHRC 751 (ALJ, March 11, 2011), there
was an identifiable hazardous ground condition above a haul road with tracks
indicating vehicle passage. Sec’y Br. 4. The Secretary maintains the violation
was significant and substantial because the hazard was reasonably likely to
result in an injury or illness of a reasonably serious nature. Sec’y Br. 7. The
Secretary’s claim is based on the rock being sufficiently loose to be at risk
of falling, and their assumption that not only haul trucks, but also pick-up
trucks and miners on foot use the haul road as a means of ingress and egress
from the pit. Sec’y Br. 9. Based on the Inspector’s testimony at the hearing
claiming light vehicles and pedestrians used the haul road, the Secretary requests
the type of injury expected should be increased to fatal. Sec’y Br. 4. Lastly,
the Secretary maintains the mine operator was moderately negligent because the
Quarry Manager identified the potential hazard, but did not test it for
stability. Sec’y Br. 12.

The Respondent,
argues there is no violation of 30 C.F.R. § 56.3200 because 1) the rocks at
issue were not loose and 2) the miners were never in danger. Respondent’s
Posthearing Brief 4. The first argument is premised on the fact that it took a
Volvo excavator with a jackhammer attachment 30-45 minutes to scale the area in
question. Resp. Br. 7. Had the rocks been loose, Respondent maintains they
would have come off the wall much faster. Id. The second argument is
premised on the assumption that only haul trucks and similarly large equipment
use the haul road. Resp. Br. 10. According to the expert testimony provided by
the respondent, a falling rock could not impact the operator of a haul truck. Resp.
Br. 11. Should the violation stand, the Respondent requests the likelihood of
injury be reduced to no injury, and the significant and substantial designation
be removed. Resp. Br. 14. The request to lower the seriousness of the citation
is premised on the assumption that a haul truck operator driving at 5 miles an
hour could not be hurt by a rock rolling into the haul truck or road from a
height of 14 feet. Resp. Br. 11.

III.            
ANALYSIS

A.            
Citation No. 8854429

MSHA Inspector James
Whetsell issued Citation No. 8854429 for an alleged violation of 30 CFR §
56.3200 on October 8, 2014. Whetsell alleged within the citation that:

There is loose
cracked (vertical and horizontal) overhanging rock about 20 feet up on the
North East Highwall above the haul road with rubber tire tracks against the
East highwall. This narrow haul road about fifteen feet wide with a small wall
on the West side forces traffic to run parallel against the highwall. There are
tracks rubber tired, and cat next to the wall. The Cat 740B haul truck makes
over 30 trips a day past this material. Other traffic includes the Volvo EC210
BLC Excavator with hammer, and Cat 980 Front end loader. If this condition were
to go uncorrected a serious rock fall accident could occur.                                 

Sec’y Ex. 1, 1. Whetsell
designated Citation No. 8854429 as a moderate negligence violation that was
likely to contribute to the occurrence of a permanently disabling injury. Id.
Whetsell determined that the failure to remove or otherwise control the loose
rock was significant and substantial. Id.

A violation of §
56.3200 requires:

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.

30 C.F.R. § 56.3200. Standard §
56.3200 requires the Secretary to show that (1) a dangerous condition exists
and (2) work or travel occurs in the affected area. The Respondent contends the
first part is not satisfied because the cracked highwall was not in danger of
falling, or alternatively, the miners operating vehicles on the haul road were
not in danger.

The Mine Act imposes
on the Secretary the burden of proving the alleged violation by a preponderance
of the credible evidence that the ground conditions present on the highwall
created a hazard. In re: Contests of Respirable Dust Sample Alteration
Citations, 17 FMSHRC 1819, 1878 (Nov. 1995), aff’d sub nom. Sec’y of
Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. cir. 1998). A
standard must provide adequate notice of required or prohibited conduct. Lanham
Coal Company, 13 FMSHRC 1341, 1343 (September 1991). The reasonably prudent
person test is used to assess whether a standard provides adequate notice of
required conduct. Martin Marietta Aggregates, 26 FMSHRC 847, 848 (Nov.
2004). The standard is: “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.” Ideal
Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). Applied to standard §56.3200,
the question is whether the “reasonably prudent person” would have recognized the
cracked highwall as a ground condition hazard and abated it. Martin Marietta
Aggregates, 26 FMSHRC at 848. To determine whether the condition of a
highwall presents a hazard, the testimony of “experienced observers” is
relevant. Id. (citing Ideal Cement Co., 12 FMSHRC 2409, 2416
(Nov. 1990)).

The first element of
30 C.F.R. § 56.3200 is to determine whether a dangerous condition exists. Whetsell
observed the highwall first hand and determined it posed a hazard based on his
41 years of experience, MSHA training, and inspection of “thousands of
highwalls.” Tr. 16. Furthermore, based on a review of photos and conversations
with the Quarry Manager, Respondent’s expert witness testified that the cracks
in question “very well may” have caused him concern. Tr. 107. Quarry Manager
Wilson testified that because of the unique elastic qualities of gypsum, the
cracks were not of concern to him. Tr. 85-86. In fact, he testified he had been
inspecting the highwall regularly and had not seen any movement or expanding in
the cracks in the past couple of weeks. Id. Also Mr. Wilson did not
report any unplanned separation from the highwall face. Tr. 78. However, there
is no documentation to corroborate Mr. Wilson’s claims that the cracks have not
widened or moved. Tr. 106-107. The only evidence that supports Mr. Wilson’s
statements is his testimony that alleged scaling the wall was difficult and
time consuming. Tr. 82-83. Mr. Wilson was not present at the time of scaling
and is basing his description of the scaling effort on a conversation with the
excavator operator. Tr. 86. In addition, there are discrepancies in Mr.
Wilson’s testimony, denigrating his credibility.

When the citation
was issued, Mr. Wilson told Inspector Whetsell that he only drove his pick-up
truck on the secondary road. Tr. 30. However, during the hearing, he testified
to driving his pick-up truck to visually inspect the highwall with a spotlight
in the dark on the very morning the citation was issued. Tr. 84. Wilson also testified
that only haul trucks use the haul road. Tr. 75. However, photo exhibits of the
haul road show excavator and pick-up truck tracks as well. Sec’y Ex. 2-1. Lastly,
according to Inspector Whetsell’s testimony, when the citation was issued Mr. Wilson
said there were about 30 trips on the haul road a day. Tr. 30. Yet at trial Mr.
Wilson testified that there were between 50 and 60 trips on the haul road a
day. Tr. 75. Weighing the opinion and testimony of Mr. Wilson and Respondent’s
expert, Mr. Head, who did not personally observe the hazardous condition against
the opinion and testimony of Inspector Whetsell, I credit the testimony of the
Inspector that a hazardous ground condition existed.

The Respondent
further contends that even if the highwall was a hazardous ground condition, it
was not dangerous to people because, it alleges, only large vehicles used the
haul road. The Respondent’s expert, Mr. Head convincingly demonstrated that
there was little to no likelihood that a haul truck driver would be directly
impacted by a rock. Resp. Ex. E. However, in his report Mr. Head does not
address any of the other ways a falling rock could cause serious injury besides
direct impact. Id. During the hearing, the Secretary established through
Inspector Whetsell’s testimony that a rock in the road way could still cause
serious injury to a haul truck driver by potentially causing the driver to lose
control and wreck his vehicle. Tr. 29. The Respondent’s expert also
corroborates the Inspector’s conclusions by stating fallen rocks could very
well “hit the side of the truck…hit the tire tracks…present themselves as
obstacles in the middle of the road…”. Tr. 99. If pick-up trucks used the haul
road the likelihood falling rocks would cause serious injury is much greater. Tr.
34, 40. Inspector Whetsell pointed out tracks on the haul road that he
identified as pick-up truck tracks. Tr. 37; Sec’y Ex. 2-1. In his testimony Mr.
Wilson admitted to driving his pick-up truck to perform a visual inspection with
a spotlight the morning of the citation. Tr. 84. Based on exhibit 2-1, the
testimony of Inspector Whetsell, and the testimony of Mr. Wilson, I find
pick-up trucks did use the haul road.

The Secretary also
alleges that pedestrians used the haul road. Sec’y Br. 4. However, there is not
enough substantial evidence in the record to determine with certainty that
pedestrians used the haul road. From his experience as a miner, Inspector
Whetsell assumes pedestrians used the haul road. Tr. 31, 38, 40. Despite
not having a company policy to the contrary, Quarry Manager Wilson testified
they try not to use the haul road as a pedestrian path. Tr. 83. There is no
concrete evidence of foot traffic on the haul road. Without more information,
the assumption that there is foot traffic on the haul road is only speculation.
Therefore, I deny the Secretary’s request to increase the gravity of the injury
to fatal.

The second element
of 30 C.F.R. § 56.3200 is to show that either work or travel occurs in the
affected area. There is undisputed evidence of vehicle tracks on the haul road
indicating people travel through the hazardous condition. Sec’y Ex. 2-1, 2-2.

I have relied upon
the exhibits, the hearing, and credibility assessments of the witnesses to
reach my conclusions. Considering Inspector Whetsell has 41 years of experience
with mining operations, he reviewed the highwall firsthand, his concern for the
cracks was corroborated by the respondent’s expert, and there is evidence
people traveled in both large vehicles and pick-up trucks in the hazardous
area, I affirm that 30 CFR §56.3200 was violated.

B.             
Significant and Substantial

A violation is
significant and substantial (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 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). An S&S designation must be based on the
particular facts surrounding the violation, and viewed in the context of
ongoing mining operations. Texasgulf Inc., 10 FMSHRC 498, 501 (Apr.
1988); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The
Commission has emphasized that 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., 6 FMSHRC 1834, 1836 (Aug. 1984). The absence of an injury
producing event when the cited practice occurred does not preclude an S&S
determination. Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005). The
standard of review for the third prong requires some clarification. The third
prong focuses on whether the hazard contributed to by the violation will cause
an injury. Musser Engineering, Inc., 32 FMSHRC 1257, 1281 (2010). For
the third prong, the relevant hazard should be assumed. Peabody Midwest
Min., LLC v. Federal Mine Safety and Health Review Com'n, 762 F.3d 611, 613
(7th Cir.) (Aug. 2014); Knox Creek Coal Corp. v. Secretary of
Labor, Mine Safety and Health Admin., 811 F.3d 148, 164 (4th
Cir.) (Jan. 2016).

The first prong is
satisfied because I have found a violation occurred. The second prong is
satisfied because the violation – failing to abate hazardous ground conditions
– does contribute to a discrete safety hazard. In this case, the danger is
loose rocks falling on the haul road where miners travel. A highwall is likely
to crack when it is shot; exposed to weather such as humidity, freezing, or
thawing; and exposed to vibrations from passing trucks. Tr. 27. The last time
the wall was shot was a week or so prior to inspection. Tr. 53, 69. Inspector
Whetsell testified that this is most likely when the cracks were formed. Tr.

69. Humidity and rain are potential destabilizing factors, but freezing and
    thawing likely were not because of the time of year. Tr. 27. Due to the
    proximity of the passing trucks to the highwall, approximately 18-24 inches, I
    credit Inspector Whetsell’s testimony that vibrations from haul trucks making 30
    to 60 trips per day could adversely affect the stability of the highwall. Tr.
    27-28. The potential for future shooting as part of regular mining operations,
    normal weathering, the passage of time, vibrations from passing haul trucks, plus
    gravity mean the cracks on the highwall would reasonably be expected to result in
    falling rocks  Tr. 27.

The third and fourth
prongs are satisfied because falling rocks are reasonably likely to cause an
injury, and that injury is reasonably likely to be serious. The potential
serious injury is based on the fact that along with haul trucks and large
machinery, there is evidence that pick-up trucks used the haul road as well. Sec’y
Ex. 2-1, Tr. 84. While the injury to a haul truck driver may not assuredly
constitute a serious injury, the potential damage to a person driving a pick-up
truck would certainly constitute a serious injury. Tr. 34. A rock upwards of
600 lbs. falling from 19ft. could pulverize a passing pick-up truck. Id.
I find all of the elements have been met to find the violation significant and
substantial.

C.            
Negligence

The Mine Act defines reckless
disregard as conduct which exhibits the absence of the slightest degree of
care, high negligence as actual or constructive knowledge of the violative
condition without mitigating circumstances; moderate negligence as actual or
constructive knowledge of the violative condition with mitigating
circumstances; and low negligence as actual or constructive knowledge of the
violative condition with considerable mitigating circumstances. 30 C.F.R. §
100.3: Table X. These regulations apply to the Secretary’s proposal of
penalties only, and are not binding on the Commission. Brody Mining, LLC,
37 FMSHRC 1687, 1701 (Aug. 2015). The Commission instead directs its judges to
“evaluate negligence from the starting point of a traditional negligence
analysis. Under such an analysis, an operator is negligent if it fails to meet
the requisite standard of care—a standard of care that is high under the Mine
Act.” Brody, 37 FMSHRC at 1702. In evaluating an operator’s negligence,
the judge should consider “what actions would have been taken under the same
circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation.” Jim
Walter Res., 36 FMSHRC 1972, 1975 (Aug. 2014).

Quarry Manager Wilson
acknowledged he had seen the cracks that worried Inspector Whetsell. Tr. 76. He
did not think they were concerning, however, because the nature of Harper
Quarry gypsum was to crack. Id. Despite the failure to scale a visibly
cracked highwall, mine operations were consistent with what a reasonably
prudent person would do. First, the miners at Harper Quarry scale the walls
every time after they blast. Tr. 74. Second, Mr. Wilson inspects the mine every
morning. Tr. 84. Third, Harper Quarry mine site has an excellent safety record in
general with only three violations over the past two years, none of which
involved loose ground conditions. Sec’y Ex 3-1. Taking these facts into
consideration, I find that a low rather than a moderate negligence level is most
appropriate.

IV.            
PENALTY

It is well established that
Commission administrative law judges have the authority to assess civil
penalties de novo for violations of the Mine Act. Sellersburg Stone Company,
5 FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil
monetary penalties, the Commission ALJ shall consider the six statutory penalty
criteria:

(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).  

These criteria are generally incorporated by the Secretary
within a standardized penalty calculation that results in a pre-determined
penalty amount based on assigned penalty points. 30 CFR 100.3: Table 1- Table
XIV. The Secretary has proposed a regularly assed penalty of $138.00 for
Citation No. 8481807 based upon the 30 CFR 100.3 penalty tables. Sec’y Petition,
Ex. A.

The Respondent is a mid-size operator with low rate of
total violations per inspection day and no recent history of prior ground
control violations. I have found that the Respondent acted with low negligence.
The parties have stipulated that the proposed penalty will not affect its ability
to continue in business. Tr. 6. I have found that the violation was likely to
result in a permanently disabling injury. The parties have stipulated that the Respondent
promptly abated the violation by scaling down the loose overhanging material. Sec’y
Ex. 1, 1; Tr. 6.

After
considering this evidence in light of the six statutory factors and in
consideration of the lowered negligence level I find a penalty amount of $100
to be appropriate.

V.               
ORDER

The Respondent, New
NGC, Inc., is ORDERED to pay the Secretary of Labor the sum of $100.00
within 30 days of this order.[1]
The associated notice of contest proceeding CENT 2015-37 is DISMISSED.

/s/
David P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution: (U.S. First Class Mail)

Maria C. Rich, Conference and Litigation Representative, U.S.
Department of Labor, 1100 Commerce Street, Room 462, Dallas, TX 75242 

Mary Cobb, Solicitor, U.S. Department of Labor, 525 South
Griffin Street, Suite 501, Dallas, TX 75202

Justin Winter, Conn Maciel
Carey PLLC, 5335 Wisconsin Ave., NW, Suite 660, Washington, DC 20015

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Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390