Secretary of Labor v. Arnold Stone, Inc.

Plain-English summary

Arnold Stone removed a touch-screen control from a large saw, leaving electrical wires exposed while the power disconnect was unlocked and untagged. A supervisor later energized the saw and left it on while miners had access to the building. Judge Margaret A. Miller held that the repair remained mechanical work until the screen was replaced or the opening was covered, so the saw had to remain deenergized and locked out. She found the violation significant and substantial, highly negligent, and an unwarrantable failure because managers knew of the condition, it lasted more than a month, and contact with the energized components could cause severe burns or electrocution. The judge affirmed the order but reduced the proposed penalty from $21,335 to $18,000 after considering the small operator's financial condition.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.12016
• Outcome: The S&S, high-negligence, unwarrantable-failure order was affirmed and an $18,000 penalty was assessed.
• Key point: Lockout protection must remain in place throughout an equipment repair when exposed electrical components can be reenergized before the work is complete.

Full text (FMSHRC public release)

Federal Mine
Safety and Health Review Commission

Office of
Administrative Law Judges

721 19 th
St., Suite 443

Denver, CO 80202-2500

Office: (303)
844-5266/Fax: (303) 844-5268

April 11, 2017

SECRETARY OF LABOR,                               
:    CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH                      
:

ADMINISTRATION, (MSHA),                       
:    Docket No. CENT 2016-0540

Petitioner,                         
:    A.C. No. 41-04407-416881

:

v.                                                  
:   

:   

ARNOLD STONE INC,                                     
:

Respondent.                     
:    Mine: Arnold Stone Inc

DECISION AND
ORDER

Appearances:               John
M. Bradley, Attorney, United States Department of Labor, Office of the
Solicitor, Dallas, Texas, for Petitioner;

Jules P. Slim, Attorney, Irving,
Texas, for Respondent.

Before:                                    Judge Miller

This case is before me upon a petition for
assessment of a civil penalty filed by the Secretary of Labor pursuant to Section
105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d)
(“the Act”). This docket involves one citation issued on April 12, 2016, pursuant
to Section 104(d)(1) of the Mine Act with a proposed penalty of $21,335.00. The
citation was modified to a 104(d)(1) order prior to the filing of the penalty petition.
The parties presented testimony and evidence regarding the citation at a
hearing held in Dallas, Texas, on February 8, 2017.

I.       
FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Arnold Stone mine is a surface limestone
mine located in Hill County, Texas. The parties have stipulated that Arnold
Stone, Inc., is an “operator” as defined in Section 3(d) of the Mine Act, 30
U.S.C. § 803(d, and that the mine is subject to the provisions of the Mine Act
and the jurisdiction of the Commission. Jt. Stips. ¶¶ 1-2, 5.

Order No. 8861391 was issued for a violation
of 30 C.F.R. § 56.12016 for an exposed electrical component on a saw that was
not locked out. The Secretary alleges that the violation was highly likely to
cause a fatal injury, was significant and substantial, was the result of high
negligence, and was an unwarrantable failure to comply with the relevant
standard. The Secretary proposed a penalty of $21,335.00. For the reasons set
forth below, I find that the Secretary has proven that a violation occurred as
alleged, that the violation was significant and

substantial, was the result of high negligence, and was an
unwarrantable failure to comply with the standard.

The findings of fact detailed below
are based on the record as a whole and my careful observation of the witnesses
during their testimony.  In resolving any conflicts in testimony, I have taken
into consideration the interests of the witnesses, corroboration or the lack
thereof, and consistencies and inconsistencies in each witness’s testimony and
among the testimonies of the various witnesses. Any failure to provide detail
on each witness’s testimony in this decision should not be deemed a failure on
my part to have fully considered it. The fact that some evidence is not discussed
does not indicate that it was not considered. See Craig v. Apfel , 212
F.3d 433, 436 (8th Cir. 2000).

Inspector James Redwine has worked
for MSHA for four years as an inspector. He has been in the mining industry for
30 years, working in safety as well as production and as a supervisor. On April
12, 2016, Redwine traveled to the Arnold Stone mine to conduct a regular
inspection. He met Chris Crawford at the mine office, who identified himself as
the supervisor and person in charge at the mine. The mine has several saws used
to process limestone, and Redwine examined at least two of them as part of his
inspection. The Eagle II saw, which is the subject of this citation, was
located up a hill in a separate building from the mine office. Crawford
indicated that he and some of the miners had been in that building working in
the last few weeks, so Redwine included the saw in his inspection. The Eagle II
saw is as big as a large room and can be moved forward and backward using a
fixed control panel. The saw has a large blade that is used to cut up very
large rocks into more manageable pieces so they can be moved to another saw. The
controls for the saw include a 9 by 12 inch touch screen located on the
operations panel. Prior to the inspection, the touch screen had been removed
for repair, exposing various wires inside. The Secretary’s Exhibit 1 is a
photograph of the 9 by 12 inch area with electrical wiring exposed as observed
by Redwine at the inspection. Redwine used a tic tracer to determine if the
exposed wires were energized and found that they were. Crawford informed
Redwine that the voltage of the saw was 480 volts, but the tic tracer used by
Redwine does not provide a voltage reading. Redwine observed a disconnect box
20 or 30 steps from the control panel and saw that the handle was in the on
position. He asked Crawford to put the handle in the off position. He then re-tested
the panel with the tic tracer and determined that the wires were no longer
energized. The Secretary’s Exhibit 3 shows the disconnect box, as observed by
Redwine, with the handle in the on position with no lock and tag or warning
sign.

Crawford explained to the inspector
that he had removed the touch screen control panel several weeks prior to the
inspection, and that he had deenergized the control panel and put a lock on the
electrical disconnect box while removing the screen. A shipping invoice from
the mine indicated that the screen had been removed on March 4, 2016, over a
month prior to the inspection. See Resp. Ex. I. However, once the control
panel screen was removed, Crawford removed his lock, but left the disconnect
box in the off position so that the exposed wires on the saw panel were not
energized. Crawford explained that he removed his lock because he had only one and
needed it for other pieces of equipment. There was no warning on the disconnect
box or on the saw control panel to indicate the presence of exposed wires or
ongoing work.

In addition to Crawford, the
inspector spoke to other miners who worked at that location, including Tyler
Colson, the assistant plant manager. Colson explained to the inspector that he
and several others miners had been sent to the Eagle II saw to clean the area. It
was unclear from the testimony exactly when the miners were assigned to work in
the Eagle II building, but it was sometime after the touch screen had been
removed, and the lock on the power switch removed. While cleaning around the
saw, Colson had thrown the handle of the disconnect box into the on position
because he planned to move the saw using the toggles below the exposed wires of
the touch screen. He was unable to move the saw but left the power in the on
position and the exposed wires energized. The Secretary’s Exhibit 6 shows that
the toggles were located directly below the missing touch screen. Thus Colson
was directly in front of the touch screen area within a few inches of the
energized wires when he tried to operate the toggles. Colson did not explain
why he left the equipment energized, but clearly there was no lock on the
machine and no tag to prevent him from energizing the equipment. The building
was not locked and was accessible to anyone at the mine. No one was working in
the saw building at the time of the inspection, but there were six miners on
the property that day. Redwine testified that a person would be electrocuted
and receive burns if he touched the energized wires.

The mine presented testimony from Michael
Arnold, the owner of the operation. Arnold testified that he has worked in the
business for 18 years. At one time the Arnold Stone mines employed nearly 100
miners, but today there are only eight employees. Crawford and Colson are no
longer employed by the company. Arnold testified that in fact Colson left his
job with Arnold Stone the week of April 3, 2016, prior to the inspection. Respondent’s
Exhibit D shows Colson’s pay dates but is unclear as to when his employment
ended.

Arnold was not present at the mine
at the time of the inspection but testified that the building housing the saw was
not being used at the time of the inspection. The company was in the process of
shutting down the mine, and Arnold had the touch screen panel removed from the
Eagle II saw for repair in order to prepare it for sale. Arnold asserts that he
instructed an electrician to shut down the transformer to the Eagle II saw on
April 5, 2016, thereby reducing the voltage on the saw from 480 to 110. The
mine produced an invoice for the work but the invoice does not clearly indicate
that the transformer was shut down or where the work was performed. See
Resp. Ex. J. Arnold testified that while the saw operated on 480 volts, because
the transformer was shut down on the day of inspection, it was operating on
only 110 volts that day. He explained that it was his belief that Colson could
not move the saw by using the toggles because only 110 volts remained. He did
not discuss whether 110 volt wires would cause injury to a person who touched
them. Arnold did state, however, that the wires in the box that were exposed
after the screen was removed were insulated and therefore would not cause
electric shock. Arnold explained that Crawford had access to more than one
lock, as Arnold had purchased several locks in February after a separate MSHA
inspection found issues at the mine with locking out equipment. Crawford, on
the other hand, told the inspector that he purchased locks in April, shortly
after the inspection for purposes of abatement.

A.     The
Violation.

Based on his observations at the mine, Redwine issued Citation No. 8861391
for an exposed electrical component on equipment that was not locked out. The
Secretary alleges a violation of 30 C.F.R. § 56.12016, which provides:

Electrically
powered equipment shall be deenergized before mechanical work is done on such
equipment. Power switches shall be locked out or other measures taken which
shall prevent the equipment from being energized without the knowledge of the
individuals working on it. Suitable warning notices shall be posted at the
power switch and signed by the individuals who are to do the work. Such locks
or preventive devices shall be removed only by the persons who installed them
or by authorized personnel.

The Commission has stated that “electrically
powered equipment” includes any equipment whose power source is electricity. Cleveland
Cliffs Iron Co ., 4 FMSHRC 2141, 2143 (Dec. 1981) (interpreting a former
standard identical to § 56.12016). The purpose of the standard is to protect
against electrocution. Northshore Mining Co. v. Sec’y of Labor , 709 F.3d
706, 710 (8th Cir. 2013); Phelps Dodge Corp. v. Fed. Mine Safety &
Health Review Comm'n, 681 F.2d 1189, 1192 (9th Cir. 1982). Thus, to
establish a violation of § 56.12016, the Secretary must demonstrate that a
hazard of electrical shock was present. See Northshore , 709 F.3d at 710;
see also Ray, emp’d by Leo Journagan Constr. Co. , 20 FMSHRC 1014,
1023-26 (Sept. 1998); Magruder Limestone Co ., 35 FMSHRC 1385, 1401-02
(May 2013) (ALJ).

Here, Inspector Redwine observed that
the touch screen had been removed from the electrically powered saw, leaving energized
wires exposed. He learned that the screen had been removed several weeks prior
to the inspection and at some point during those weeks the power was restored
to the saw. The supervisor at the mine, Chris Crawford, explained that he had
deenergized the saw and locked it out while he removed the screen. However, he had
removed his lock when he completed the work. Crawford told the inspector that
he had left the power to the saw in the off position. Later, the assistant
plant manager, Colson, entered the saw building with other workers to clean the
saw area and turned the power to the saw back on in order to move it. The power
was on and the saw energized when Redwine observed it. There were no warning
notices posted at the power switch or in any other location in the area of the
saw, and there was no lock or tag on the power center. Redwine believed that
the exposed wires presented a risk of electric shock.

Arnold Stone argues that no
violation of the standard occurred because when Redwine observed the saw, there
was no “mechanical work” being done. Resp. Br. at 2. The term “mechanical work”
is not defined in the regulations, but the Commission has found that the
relocation and installation of light fixtures, including taking the fixtures
down, handling them, and rehanging them, constitutes “mechanical work” within
the meaning of this standard. Cleveland Cliffs , 4 FMSHRC at 2143. Consistent
with the Commission language, I find that the removal and repair of the touch
screen on the saw constituted mechanical work, and that work was not complete
until either the screen was replaced or a suitable cover was put over the
energized wires. To comply with the standard, the power switches needed to be
locked out for that entire time. I am not persuaded by the company’s argument
that “other measures” were taken to eliminate the hazard, in that the saw
building was isolated from the rest of the mine, and only Crawford and Colson
had access to the saw. I credit the inspector’s findings that several employees
had entered the building to clean the area, and anyone could access the saw and
turn the power on.  

The company also argues that the
Secretary has failed to prove that the voltage present in the exposed wires
exceeded the minimum amount allowed by MSHA’s regulations. Resp. Br. at 3. A
related standard to the one at issue provides that “The potential on bare
signal wires accessible to contact by persons shall not exceed 48 volts.” 30
C.F.R. § 56.12012. The company infers from this that exposed components with a
voltage amount below 48 volts are permissible, and that the Secretary must
therefore prove that a greater voltage was present in order to prove a
violation of a standard relating to an electrical hazard. See Resp. Br.
at 3. However, Redwine determined based on his conversations with the employees
at the mine that the voltage in the wires when they were energized was at a
minimum 110 volts, but 480 before the power to the saw was partially
disconnected, nearly a month after the screen was removed. I credit the
inspector’s findings and thus find that the company’s argument is not
applicable.

Finally, Arnold Stone argues that a
violation has not been proven because none of the exposed parts posed a risk of
electric shock. Resp. Br. at 3. However, Redwine testified that the exposed
wires, even those that were insulated, posed a risk of shock and electrical
burns. I credit the inspector’s testimony and find that the Secretary has
proven a violation.

B.      Significant
and Substantial

A “significant and substantial”
(“S&S”) 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 S&S “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 Div., Nat’l Gypsum Co. , 3 FMSHRC
822, 825 (Apr. 1981).

In Mathies Coal Co. , the
Commission established the standard for determining whether a violation is
S&S:

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.

6 FMSHRC 1, 3-4 (Jan. 1984).

The second element of the Mathies
test addresses the likelihood of the occurrence of the hazard the cited
standard is designed to prevent. Newtown Energy, Inc ., 38 FMSHRC 2033,
2036 n.8 (Aug. 2016). The Commission has explained that “hazard” refers to the
prospective danger the cited safety standard is intended to prevent. Id.
at 2038. In Newtown , for instance, for a violation of a standard
requiring that equipment be locked out and tagged out while electrical work is
being performed, the Commission considered the hazard of a miner working on
energized equipment. Id . The likelihood of the hazard occurring must be
evaluated with respect to “the particular facts surrounding the violation.” Id. ;
see also McCoy Elkhorn Coal Corp ., 36 FMSHRC 1987, 1991-92 (Aug.
2014); Mathies , 6 FMSHRC at 4. At the third step, the judge must assess
whether the hazard, if it occurred, would be reasonably likely to result in
injury. Newtown , 38 FMSHRC at 2037. The existence of the hazard is
assumed at this step. Id .; Knox Creek Coal Corp. v. Sec’y of Labor,
811 F.3d 148, 161-62 (4th Cir. 2016). As with the likelihood of occurrence of
the hazard, the likelihood of injury should be evaluated with respect to
specific conditions in the mine. Newtown, 38 FMSHRC at 2038. Finally,
the Commission has held that the S&S determination should be made assuming
“continued normal mining operations.” McCoy , 36 FMSHRC at 1990-91. The
Commission has recognized that the opinion of an experienced MSHA inspector
that a violation is S&S is entitled to substantial weight. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998).

Redwine indicated that this
violation was significant and substantial because the electrical disconnect box
was not locked and tagged out and the switch had been moved to the on position,
thereby energizing the exposed electrical wires. The energized wires were
exposed in an opening of 9 by 12 inches in an easily accessible area. When
Colson attempted to move the saw, he was within inches of the exposed energized
wires. In Redwine’s view, it was highly likely that someone could contact those
energized wires and suffer a severe burn or electrocution.

Arnold Stone argues that the
violation was not S&S because no miners were present at the time of the
inspection. Further, even if a miner came into contact with the exposed
electrical wires that were energized, he would not be injured because the wires
were insulated and contained only 110 volts.

The information Redwine received from Crawford at
the inspection was that the exposed electrical wires contained 480 volts. Arnold
Stone disputes the voltage amount for part of the time the wires were exposed,
arguing that the exposure was only to 110 volts, and that a voltage of 110
would not cause injury to a person who came into contact with the energized
wires. There is no dispute that the usual power source to the saw was 480 volts.
But Arnold asserts that at some point after Crawford removed the screen, the
transformer to the building was deenergized, removing the 480 volt power source
and leaving only a 110 volt power source to the saw control panel. The mine
supports its position with a receipt from an electrician, Exhibit J, showing
only that one hour of work was performed at the mine sometime prior to April 5,
2016, and that a GFI was replaced. Arnold also suggested that when Colson tried
to move the saw while cleaning the saw area, he was unable to because the
voltage to the saw was only 110 volts. I do not find Exhibit J to be reliable,
but even if I take Arnold at his word, the electrical work was done a month
after Crawford removed the screen. It is clear that the control panel had 480
volts flowing into it after the screen was removed on March 4, 2016, for
several weeks.  Neither Crawford nor Colson was called to testify by
Respondent, and the only witness, Arnold, was not present at the mine at the
time of the inspection, so I rely on the information provided to the inspector
and find that the machine had 480 volts at the time Crawford removed the screen
and at the time miners were working and cleaning up in the area.

Applying the Mathies
criteria, the Secretary has proven a violation of § 56.12016, satisfying the
first element. I find that the Secretary has also demonstrated a discrete
safety hazard contributed to by the violation. The standard is designed to
prevent miners from coming into contact with energized wires or otherwise being
electrocuted while working on energized equipment. Here, I find that the work
was ongoing. Although Crawford had removed his lock and left the area, the
repair work continued while the wires remained exposed until the touch screen was
replaced, and the equipment was returned to its normal operating condition. Failure
to deenergize and lock out the machine exposed miners to the energized wires
and components in the uncovered 9 by 12 inch area. The manual controls were
located just below the touch screen area. Regarding the likelihood of injury, Redwine
spoke to several miners and learned that several people had been working in the
saw building while the electrical parts were not locked and tagged out. One
miner had actually turned on the power, energizing the exposed wires and
components. The exposed area was easily accessible to anyone working in the
area. At a height of 58 inches, the miners who were assigned to clean the saw
building could easily have tripped or fallen or otherwise come into contact
with the wires. Redwine explained the severity of potential injury, for at
least part of the time, was great because the exposed wires and components were
energized by 480 volts. Touching or grabbing live wires at 480 volts would be
reasonably likely to seriously injure or kill a miner.  

Finally, I credit Redwine’s finding
that the violation was S&S. Redwine is certainly experienced and reviewed a
number of fatalgrams regarding the danger of working around 480 volts and
energized wires. While the mine asserts that the area around the saw was not
busy, and that it was unlikely that anyone would come into contact with a bare,
exposed wire, I credit the testimony of Inspector Redwine. There were people
working in and around the saw while it remained unlocked and while it was
energized. The miners were exposed to energized wires and components in a
location that was easily accessible. Hence, I find the violation to be
significant and substantial.

C.     Negligence
and Unwarrantable Failure

The Commission has recognized that
“[e]ach mandatory standard … carries with it an accompanying duty of care to
avoid violations of the standard, and an operator's failure to meet the
appropriate duty can lead to a finding of negligence if a violation of the
standard occurs.” A.H. Smith Stone Co. , 5 FMSHRC 13, 15 (Jan. 1983). In
determining whether an operator met its duty of care, the judge must 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.”   Newtown Energy, Inc. ,
38 FMSHRC 2033, 2047 (Aug. 2016); Brody Mining, LLC , 37 FMSHRC 1687,
1702 (Aug. 2015); U.S. Steel Corp. , 6 FMSHRC 1908, 1910 (Aug. 1984).

The standard of care is higher for
mine management. Newtown , 38 FMSHRC at 2047. The Mine Act places primary
responsibility for maintaining safe and healthful working conditions in mines
on operators, and they are thus expected to set an example for miners working
under their direction. Id. ; Wilmot Mining Co. , 9 FMSHRC 684, 688
(Apr. 1987); see also 30 U.S.C. § 801(e). “Such responsibility not only
affirms management’s commitment to safety but also, because of the authority of
the manager, discourages other personnel from exercising less than reasonable
care.” Wilmot , 9 FMSHRC at 688.

The negligence of an operator’s
agent is imputable to the operator for penalty assessment and unwarrantable
failure purposes. Nelson Quarries, Inc ., 31 FMSHRC 318, 328 (Mar. 2009);
Whayne Supply Co ., 19 FMSHRC 447, 450 (Mar. 1997); Rochester &
Pittsburgh Coal Co ., 13 FMSHRC 189, 194 (Feb. 1991). The Mine Act defines
an “agent” as “any person charged with responsibility for the operation of all
or a part of a coal or other mine or the supervision of the miners in a coal or
other mine.” 30 U.S.C. § 802(e). In analyzing whether an employee is an agent
of an operator, the Commission has considered factors including “the ability of
the employee to direct the workforce, whether the employee holds himself out as
a person with supervisory responsibilities and is so regarded by other miners,
and whether the actions of the employee in directing the workforce have an
impact on health and safety at the mine.” Nelson Quarries , 31 FMSHRC at

328. In the instant case, there is no dispute that Crawford was the person in
     charge at the mine, and an agent of Arnold Stone.

The inspector designated the citation at issue as
resulting from high negligence. The Secretary also argues that the violation
was the result of the operator’s unwarrantable failure to comply with a
mandatory standard.

The unwarrantable failure
terminology is taken from Section 104(d) of the Act, 30 U.S.C. § 814(d). The
Commission has explained that unwarrantable failure is “aggravated conduct
constituting more than ordinary negligence. [It] is characterized by conduct
described as ‘reckless disregard,’ ‘intentional misconduct,’ ‘indifference,’ or
a ‘serious lack of reasonable care.’” Consol. Coal Co ., 22 FMSHRC 340,
353 (Mar. 2007) (citing Emery Mining Corp. , 9 FMSHRC 1997, 2001-04 (Dec.
1987)) (citations omitted). In determining whether a violation is an
unwarrantable failure, the Commission has instructed its judges to consider all
of the relevant facts and circumstances in the case and determine whether there
are any aggravating or mitigating factors. Id. Aggravating factors to be
considered include

the length of
time that the violation has existed, the extent of the violative condition,
whether the operator has been placed on notice that greater efforts were
necessary for compliance, the operator’s efforts in abating the violative
condition, whether the violation was obvious or posed a high degree of danger,
and the operator’s knowledge of the existence of the violation.

IO Coal Co. , 31 FMSHRC 1346, 1352 (Dec. 2009); see
also Consol ., 22 FMSHRC at 353. Additionally, Section 104(d) of the Act
requires that a 104(d)(1) withdrawal order like the one in this case be
preceded by a separate 104(d)(1) citation within 90 days. The so-called
“predicate citation” in this case is No. 8867117, which became a final order of
the Commission on June 15, 2016.

In this case, Crawford, a
supervisor, left electrical wires and components exposed without locking and
tagging out the equipment. Colson, who was also a supervisor, later energized
the equipment and left it energized with the wires exposed for some time. The
violation existed for a long period of time and nothing was done until the
inspector advised the mine to deenergize and lock and tag out the equipment. Based
upon the factors enumerated by the Commission, I find that the Secretary has
proven an unwarrantable failure in this case.

Length of time that the
violation has existed . In IO Coal Co. , the Commission emphasized
that the duration of time that the violative condition existed is a “necessary
element” of the unwarrantable failure analysis. 31 FMSHRC at 1352. However, the
brief duration of a violative condition is not a mitigating factor. Knight
Hawk Coal, LLC , 38 FMSHRC 2361, 2371 (Sept. 2016). Even where the record
does not permit the judge to make a conclusive finding as to the duration of
the condition, “imperfect evidence of duration in the record should be taken
into account.” Coal River Mining, LLC , 32 FMSHRC 82, 93 (Feb. 2010). The
condition in IO Coal had existed for four or five days, and the
Commission remanded to the judge to consider whether such a duration was an
aggravating factor. 31 FMSHRC at 1352. The Commission noted that analysis of
the duration factor may be affected by the operator’s good-faith, reasonable
belief that the condition did not exist. Id . at 1352-53.

Here, Crawford removed the control screen to
have it repaired near the beginning of March. Although he deenergized the
equipment, he did not lock and tag it out after the screen was removed. At some
point before the inspector arrived more than a month later, the saw had been
energized. The equipment was not locked or tagged out for more than a month,
and it was energized for a part of that time. I find that the violation existed
for a long period of time and that this was an aggravating factor.

Extent of the violative condition .
The extent factor is intended to “account for the magnitude or scope of the
violation” in the unwarrantable failure analysis. Dawes Rigging & Crane
Rental , 36 FMSHRC 3075, 3079 (Dec. 2014). Facts relevant to the extent of
the condition include the size of the affected area and the number of persons
affected. Id . at 3079-80. In Dawes , the Commission found that where
only one miner endangered himself by walking under a suspended load, the
violation was not extensive. Id . at 3080. Here, the inspector testified
that all persons working at the mine were exposed to the violation. The saw
house was open and available to everyone, and the two managers, along with
several other miners, were told to work in the saw house during the time the
screen from the control panel was missing. I consider that the violation was
somewhat extensive.

Whether the operator has been
placed on notice that greater efforts were necessary for compliance . A
mine operator may be put on notice that it has a recurring safety problem in
need of correction where there is a history of similar violations. Black
Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012); IO Coal ,
31 FMSHRC at 1353; Peabody Coal Co., 14 FMSHRC 1258, 1264 (Aug. 1992). Prior
violations may be relevant even though they did not involve the same regulation
or occur in the same area of the mine within a continuing time frame. IO
Coal , 31 FMSHRC at 1354; San Juan Coal Co ., 29 FMSHRC 125, 131 (Mar.
2007); Peabody , 14 FMSHRC at 1263. It is not required that the past
violations were the result of unwarrantable failure. IO Coal , 31 FMSHRC
at 1354; Consolidation Coal Co ., 23 FMSHRC 588, 595 (June 2001). Past
discussions with MSHA can also serve to place the operator on notice that
greater efforts were necessary to assure compliance with the safety standard. Consolidation
Coal Company, 35 FMSHRC 2326, 2342 (Aug. 2013) (citing cases). Evidence
that a particular standard is frequently cited in the industry as a whole is
not relevant to the operator’s notice. San Juan Coal Co ., 29 FMSHRC 125,
131 (Mar. 2007).

Exhibit 8 is a copy of a citation
that was issued to Crawford at this mine in February, just a month before he
removed the touch screen. The citation indicates that a saw had not been
blocked against motion prior to work on the blades. This citation put the mine
on notice that greater efforts were necessary in complying with regulations
regarding equipment repairs, including the lock out and tag out requirements.

Operator’s efforts in abating
the violative condition . An operator’s efforts in abating the violative
condition are also relevant as to whether a violation is unwarrantable. Consol .,
35 FMSHRC at 2342; IO Coal , 31 FMSHRC at 1356; San Juan, 29
FMSHRC at 134. Abatement efforts prior to or at the time of the
inspection may support a finding that the violation was not unwarrantable. Utah
Power & Light Co ., 11 FMSHRC 1926, 1933-34 (Oct. 1989). Conversely, where
the operator has notice of a condition, such as through previous violations or
conversations with an inspector, a failure to remedy the problem weighs in
favor of an unwarrantable failure finding. Consol ., 35 FMSHRC at 2343; Enlow
Fork Mining Co ., 19 FMSHRC 5, 17 (Jan. 1997). A lack of abatement efforts
may be excusable if the operator had a reasonable, good faith belief that the
condition did not exist. See IO Coal , 31 FMSHRC at 1356. Abatement
efforts relevant to the unwarrantable failure analysis are those made prior to
the issuance of the citation or order. Consol. , 35 FMSHRC at 2342; IO
Coal , 31 FMSHRC at 1356.

Here, Arnold Stone made no effort
to abate the violation prior to the inspection. While Crawford initially locked
out the saw while he removed the touch screen, he then removed the lock and
left the machine unlocked for several weeks. Arnold had purchased locks for the
mine after a previous MSHA inspection, but the staff on site did not realize
that other locks may have been available to them. Crawford, instead, left the
mine to purchase another lock in order to abate the April violation.

Whether the violation posed a
high degree of danger . A high degree of danger posed by a violation can
be an aggravating factor that supports an unwarrantable failure finding. IO
Coal , 31 FMSHRC at 1355-56. In some cases, the degree of danger may be “so
severe that, by itself, it warrants a finding of unwarrantable failure. However,
the converse of this proposition—that the absence of significant danger
precludes a finding of unwarrantable failure—is not true.” Manalapan Mining
Co. , 35 FMSHRC 289, 294 (Feb. 2013). The degree of danger is greater when
there is a chronic problem that is ignored. Consol. , 35 FMSHRC at 2343.

The condition observed by Redwine
posed a high degree of danger to anyone working or passing through the area. There
were six workers at the mine on the day of the inspection, and the saw building
was open for anyone to enter. Some miners had been assigned to clean up the
building, and while they were there, someone had energized the touch screen
panel with the exposed electrical components. Redwine had equipment to
demonstrate that the wires were energized, but miners in the building did not
have the same equipment, and might have assumed that the power was off. Further,
someone could have tripped and touched the wires by accident. A miner who
touched the energized wires could be shocked or receive a severe burn.

Whether the violation was
obvious . The obviousness of the violative condition is an important
factor in the unwarrantable failure analysis. IO Coal , 31 FMSHRC at
1356. However, when a condition is non-obvious because of actions of the
operator, the Commission generally does not recognize lack of obviousness as a
mitigating factor. Consol. , 35 FMSHRC at 2343 (upholding judge’s
unwarrantable failure finding where the operator deliberately ignored testing
requirements in the mine’s ventilation plan).

Here, both Crawford, who removed
his lock and left the panel without a cover, and Colson, who energized the
equipment, could see the obvious exposed wires and the potential for someone to
energize the wires and to come into contact with energized wires.

Operator’s knowledge of the
existence of the violation . In IO Coal, the Commission
reiterated the well-settled law that an operator’s knowledge of the existence
of a violation may be established not only by demonstrating actual knowledge,
but also by showing that the operator “reasonably should have known of the
violative condition.” IO Coal Co., 31 FMSHRC 1346, 1356-1357 (Dec. 2009);
see also Drummond Co ., 13 FMSHRC 1362, 1367-68 (Sept. 1991); E.
Associated Coal Corp ., 13 FMSHRC 178, 187 (Feb. 1991); Emery Mining Corp .,
9 FMSHRC 1997, 2002-04 (Dec. 1987).

In this case, Crawford, a
supervisor, knew of the condition because he was the person who removed the
screen and left the power supply unlocked. This knowledge is imputed to the
operator and shows that the condition should have been abated much sooner. See
San Juan Coal Co ., 29 FMSHRC 125, 134 (Mar. 2007) (finding that knowledge
of a condition is “critical to the evaluation of the operator's subsequent
efforts, or lack thereof, in abating the violative condition”).

In conclusion, I find that
supervisory personnel at Arnold Stone knew of the violation at issue but failed
to abate it. The violation posed a high degree of danger to numerous people at
the mine, and based on the violation history at the mine, management should
have been aware of the need to correct it. Based on this analysis, I find 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 duty of
proposing penalties is delegated to the Secretary. 30 U.S.C. §§ 815(a), 820(a).
The Secretary calculates penalties using the penalty regulations set forth in
30 C.F.R. § 100.3 or following the guidelines for special assessments in 30
C.F.R. § 100.5. When an operator notifies the Secretary that it intends to
challenge a penalty, the Secretary then petitions the Commission to assess the
penalty. 29 C.F.R. § 2700.28. Commission Judges are not bound by the
Secretary’s penalty regulations or his special assessments. Am. Coal Co .,
38 FMSHRC 1987, 1990 (Aug. 2016). Rather, the Act requires that in assessing
civil monetary penalties, the judge must consider six statutory penalty
criteria: the operator’s history of violations, its size, whether the operator
was negligent, the effect on the operator’s ability to continue in business,
the gravity of the violation, and whether the violation was abated in good
faith. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the
Commission has held that judges must make findings of fact on the statutory
penalty criteria. Sellersburg Stone Co ., 5 FMSHRC 287, 292 (Mar. 1983), aff'd ,
736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings have been made, a
judge’s penalty assessment for a particular violation is an exercise of
discretion “bounded by proper consideration of the statutory criteria and the
deterrent purposes underlying the Act’s penalty scheme.” Id . at 294; see
also Cantera Green , 22 FMSHRC 616, 620 (May 2000). The Commission requires
that its judges explain any substantial divergence from the penalty proposed by
the Secretary. Am. Coal , 38 FMSHRC at 1990. However, the judge’s
assessment must be de novo based upon her review of the record, and the
Secretary’s proposal should not be used as a starting point or baseline. Id .

The history of assessed violations
has been admitted into evidence and shows 15 violations that became final
orders in the 15-month period prior to Redwine’s inspection. Sec’y Ex. 10. The
mine also received a citation in February 2016 for a violation of a standard
similar to the one at issue here, although that citation is currently under
contest. The negligence and the gravity of the violation have been discussed
above. Arnold Stone did not raise the issue of ability to pay prior to the
hearing and therefore did not provide the Secretary with information to
determine its financial situation. However, Arnold Stone argues that the
financial impact of the proposed penalty is significant and supplied a
financial statement illustrating their financial position. Resp. Ex. M. The
company has recently emerged from bankruptcy, reduced its work force, and is in
the process of closing some operations. I take from the limited evidence provided
that the mine is a small operation and the proposed penalty of $21,335.00 may
be difficult to pay.  Therefore, I deviate slightly from the Secretary’s
proposed amount and assess a penalty of $18,000 for the violation.

III. ORDER

Respondent is hereby ORDERED
to pay the Secretary of Labor the sum of $18,000.00 within 30 days of the date
of this decision for the violation at issue here.

/s/
Margaret A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution: (U.S. First Class Certified Mail)

John M. Bradley, Attorney, Office of the Solicitor, U.S.
Department of Labor, 525 Griffin St, Suite 501, Dallas, TX 75202

Jules Slim, Attorney, P.O. Box 140307, Irving, TX 75014