Secretary of Labor v. Martin Marietta Materials Southwest, Inc.

Plain-English summary

Martin Marietta operated the Beckmann Quarry, where an MSHA inspector found loose boulders and back breakage above an area used by a loader. Judge David P. Simonton found that the highwall had not been adequately scaled and that the falling-material hazard existed where a miner worked. He credited the inspector's testimony that rock was reasonably likely to strike the loader and could enter its cab, causing a serious injury. The Judge affirmed the citation as significant and substantial and found high negligence because inspecting and scaling after each blast was standard industry practice. He assessed the proposed $1,806 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.3131
• Outcome: Citation No. 9356617 was affirmed as S&S and highly negligent, with a $1,806 penalty.
• Key point: Loose rock and back breakage must be corrected before mobile equipment works below a quarry highwall.

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

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

December 12, 2018

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH    

ADMINISTRATION, (MSHA),

Petitioner,

v.

MARTIN
MARIETTA MATERIALS

SOUTHWEST,
INC.,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. CENT 2018-0228

A.C. No. 41-01335-459015

Mine: Beckmann Quarry

DECISION

Appearances:               Christopher D. Lopez-Loftis, Esq., U.S.
Department of Labor, Office of the Solicitor, Dallas, Texas, for Petitioner;

Benjamin J. Ross, Esq.,
Jackson Kelly PLLC, Denver, Colorado, for Respondent.

Before:                        Judge Simonton

I.       
INTRODUCTION

This case is
before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, pursuant to
the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 801. [1]
This case involves Citation No. 9356617 issued to Martin Marietta Materials
Southwest, Inc. (“Martin Marietta” or “Respondent”), in August 2017. The
Secretary proposed a penalty of $1,806.00. The citation was designated as
significant and substantial (S&S), reasonably likely to result in an injury
causing lost workdays or restricted duty, and involving high negligence on the
part of the operator. 

A hearing was held
on September 12, 2018, in San Antonio, Texas. MSHA Inspector Emilio Perales
testified for the Secretary. Howard Evans, the
primary superintendent at the Beckmann Quarry, testified for Martin Marietta. After fully considering the testimony and evidence
presented at hearing, I find that the Secretary met his burden of proof in
establishing the violation as issued. I assess the proposed penalty of
$1,806.00.

II.     STIPULATIONS
OF FACT

The parties
entered the following stipulations of fact into the record at hearing:

1. Martin
   Marietta Materials Southwest, Inc. (hereinafter, “Respondent”) was at all times
   relevant to this proceeding engaged in mining activities at the Beckmann Quarry
   Mine.

2. Respondent’s
   mining operations affect interstate commerce.

3. Respondent
   is subject to the jurisdiction of the Federal Mine Safety and Health Act of
   1977, 30 U.S.C. § 801 et. seq. (The “Mine Act” or “Act”).

4. Respondent
   is an “operator” as that word is defined in section 3(d) of the Mine Act, 30
   U.S.C. § 803(d), at the Beckmann Quarry Mine (Federal Mine I.D. No., Mine ID
   41-01335) where the contested citation in this proceeding was issued.

5. The
   Administrative Law Judge has jurisdiction over this proceeding pursuant to
   section 105 of the Act.

6. On
   or about August 29, 2017, Mine Safety and Health Administration (“MSHA”)
   Inspector Emilio Perales was acting as a duly authorized representatives [sic]
   of the United States Secretary of Labor, assigned to MSHA, and was acting in
   his official capacity when conducting the inspection and issuing the citation
   from docket CENT 2018-0228, at issue in this proceeding.

7. The
   citation at issue in this proceeding was properly served upon Respondent as
   required by the Act and was properly contested by Respondent.

8. The
   citation at issue in this proceeding may be admitted into evidence by
   stipulation for the purpose of establishing their [sic] issuance. Materials published
   on MSHA’s website or otherwise published by MSHA may also be admitted into
   evidence by stipulation for the purpose of establishing their issuance and
   availability. The truthfulness or relevancy of any statements asserted therein
   is not stipulated to by the parties.

9. Respondent
   demonstrated good faith in abating the violations.

10. The penalties proposed by
    the Secretary in this case will not affect the ability of Respondent to
    continue in business.

III. FINDINGS
OF FACT AND SUMMARY OF TESTIMONY

On August 29, 2017, MSHA Inspector Emilio
Perales [2]
visited the Beckmann Quarry to conduct an inspection. Tr. 11. He met with
Robert Deware, the acting plant manager, and Howard Evans, the supervisor for
the primary section of the mine. Tr. 11. Perales explained the general
operation at the mine: workers drill holes in a pattern at the top of the wall,
then fill them with explosives; they initiate a blast, which causes material to
come down from the wall; and loaders pick up the material to be hauled away and
processed. Tr. 17, 27. Before workers are allowed near the wall, the operator must
check the area for stability and address any loose materials. Tr. 16, 27. In a
process known as scaling, miners use a rock breaker to knock down any loose
material. Tr. 14, 30. Perales explained that scaling is practiced industry-wide
and must be done after every shot. Tr. 26, 27. The scaling process is the
subject of this citation.    

Perales and the inspection party began the
inspection at the highwall. Perales observed loose, unconsolidated material in
several places on the highwall. A portion of the highwall had already been
mucked out, and Perales observed loose unconsolidated rock on the corner that
had not been scaled. Tr. 12. There was also a “back break” to one side of the
corner. Tr. 12. Perales explained that “back breakage” refers to a crack in the
rock indicating that energy has gone back into the highwall, causing material
to loosen. Tr. 16. He observed a significant amount of loose material in the
breakage. Tr. 16. Adjacent to the highwall was an inactive section, and Perales
observed loose rock there, as well. Tr. 12.

The Secretary’s Exhibits 2-1 and 2-2 are
photographs taken from the southwest [3]
corner of the lower pit bench. There are loose boulders apparent in both
photos. Sec’y Exs. 2-1, 2-2. Exhibit 2-1 shows the surface of the bench and
overlooks the inactive south wall. Tr. 13-14. Exhibit 2-2 overlooks the west
wall, the active area. [4]
Tr. 15. The back breakage is located along the active side. Sec’y Ex. 2-2. Perales
observed that material had been removed from the active area after blasting,
which would have required a loader to make repeated trips to the face. Tr. 15. A
loader is visible in Exhibit 2-2, and Perales observed someone operating it at
the time of the inspection. Sec’y Ex. 2-2; Tr. 19. Respondent’s Exhibit D-5
shows a closer view of the area in Exhibit 2-2. There are tire tracks from a
loader close to the highwall. Resp. Ex. D-5; Tr. 21, 30, 45. Perales observed
the loader going back and forth to load material, which exposed the operator to
the highwall repeatedly. Tr. 23. There were no photographs introduced to show
the highwall above where the loader was working. Tr. 28. Respondent’s Exhibits
D-7 and D-8 are photographs of the inactive wall shown in Exhibit 2-1. Tr. 21,
31, 32. There is a berm at the end of the wall, but most of the length of the
wall is not bermed. Resp. Exs. D-7, D-8. At the inspection, Perales discussed
the condition with Evans, who told him the plant manager had directed the crew
to clean up the area. Tr. 24. Perales interpreted this to mean that Evans had
directed miners to remove the berms. Tr. 21, 24, 30. Perales explained that
berms are used to keep people away from an inactive highwall. Tr. 21. They are
placed some distance away from the highwall so that if any rock falls, it will
fall behind the berm. Tr. 21, 22. A loader operator working to remove the berms
would be exposed to rock falls from the inactive highwall. Tr. 15.

Perales explained that a loader operator working
near the highwall would be exposed to hazardous conditions. Tr. 15, 23. He was
concerned that material could fall from the highwall and hit the cab of the
loader. Tr. 24. A rock could potentially come through the windshield, and
depending on the size of the rock, it could cause serious injury. Tr. 24, 25. He
noted that some large loose rocks were visible in the photos. Tr. 25.

To terminate the violation, the operator
installed berms along the inactive part of the pit and used a rock breaker to
scale the active area. Tr. 19. The Secretary’s Exhibit 2-3 shows the highwall
after it was scaled. Tr. 19.

Howard Evans, the superintendent for the primary
section of the mine, was present during the inspection and testified at
hearing. He had been in that position for eight months at the time, but it was
his first inspection as a superintendent. Tr. 35. He believed there had been a
misunderstanding with the inspector regarding the berms in the inactive area. Tr.

35. Evans recalled telling the inspector that his boss, Chance Allen, had
    instructed him to clean the area. Tr. 35. But the area Allen was referring to
    was the catch bench between the upper level and the floor. Tr. 36; see
    Resp. Ex. D-8. The purpose of the catch bench is to catch material that may
    fall from the upper bench to keep it from falling to the floor. Tr. 36. Allen
    wanted the catch bench cleaned because that part of the mine had been mined out
    and was designated for reclamation. Tr. 36. Evans testified that no berms were
    removed in the area. Tr. 37. He stated that miners had begun construction on a
    berm in the inactive area prior to the inspection, but that it takes several
    days to build a berm. Tr. 37. He did not see anyone working in the inactive
    area other than the miners building the berm. Tr. 45. He admitted that there
    was loose material in the area and it looked like the wall had not been scaled.
    Tr. 51-52. Regarding the active wall, Evans believed that the back breakage
    observed by the inspector did not pose a hazard. Tr. 39. He said that back
    breakage is common, and only poses a problem if it is deep, which this was not.
    Tr. 39, 47, 49. He stated that the wall had been scaled to a 45-degree angle
    using a rock breaker, and he believed this would prevent any material from
    falling. Tr. 40. However, he later admitted that there were loose rocks in the
    Secretary’s Exhibit 2-1 showing the southwest corner and said that that area
    had probably not been scaled. Tr. 51-52. He stated that as far as he could
    recall, the wall further down where the loader was working was “in pretty good
    shape” with no loose material, and he did not believe it posed any danger to
    the loader operator shown in Exhibit 2-2. Tr. 40, 41. No other work was being
    done along the west wall at the time. Tr. 42. Evans also testified that miners
    are trained to watch the highwall as they are loading and to stay at a 45-degree
    angle to the wall. Tr. 41. He noted that the loaders are 60 feet long with 26
    feet from the tip of the bucket to the front of the cab. Tr. 42. The large
    loaders are used in that area in order to keep the loader operators farther from
    the wall. Tr. 42.

IV. ANALYSIS

A.     The Violation

Perales
cited the mine for a violation of 30 C.F.R. § 56.3131. That standard requires
that

In places where persons work or travel in performing
their assigned tasks, loose or unconsolidated material shall be sloped to the
angle of repose or stripped back for at least 10 feet from the top of the pit
or quarry wall. Other conditions at or near the perimeter of the pit or quarry
wall which create a fall-of-material hazard to persons shall be corrected.

30 C.F.R. § 56.3131.

The inspector
testified that he observed loose material and back breakage along the lower
bench in the corner of the pit. The photographs from the day of the inspection
clearly show large loose boulders on the west wall. Sec’y Ex. 2-1, 2-2; Resp.
Ex. D-1, D-4, D-5, D-9, D-10. The photographs also show obvious cracks or back
breakage along the west wall. I credit the inspector’s testimony that the back
breakage created a fall-of-material hazard. Tr. 16. While Evans at one point testified
that the west wall had been scaled to a 45-degree angle, he later acknowledged
that there were loose rocks indicating that the area had not been scaled. See
Tr. 40, 51-52; Resp. Br. 6. The angle of repose is not readily apparent from the
photographs. Even if the area was indeed scaled, the scaling was not adequate. There
was still loose material present that created a hazard to miners working below.

Martin
Marietta argues that there was no one working in the area because it had
already been mucked out. Resp. Br. 5. However, the witnesses’ descriptions of
the mining cycle indicate that the loose rocks would most likely arise during
blasting. Tr. 16-17, 39. Thus, they were most likely present when the loader
approached the corner to remove material, leaving the tire tracks observed by
the inspector. Moreover, there was nothing to prevent the loader observed on
the day of the inspection from approaching the corner. The area where that
loader was working was part of the same active wall. The fall-of-material
hazard was present in an area where a miner was working.

The
inspector based his violation in part on information indicating that miners had
been working to remove berms near the south wall. The testimony of Evans
indicated that in fact the mine was in the process of constructing berms in
that area. Resp. Br. 5. Thus, I base my findings on the activity of the loader
and the loose rocks and back breakage on the west wall. Those conditions
created a hazard to the loader operator working below, and I find that a
violation occurred.

B.      Significant and Substantial

The
Secretary alleges that the violation was reasonably likely to cause injury resulting
in lost workdays or restricted duty and was S&S.

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, Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In order to
uphold a citation as S&S, the Commission has held that 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). The Commission has held that the second element of
the Mathies test addresses the extent to which a violation contributes
to a particular hazard. Newtown Energy, Inc. , 38 FMSHRC 2033, 2037 (Aug.
2016). Analysis under the second step should thus include the identification of
the hazard created by the violation and a determination of the likelihood of
the occurrence of the hazard that the cited standard is intended to prevent. Id .
at 2038. At the third step, the Secretary must prove there was a reasonable
likelihood that the hazard contributed to by the violation will cause an
injury, not a reasonable likelihood that the violation, itself, will cause
injury. Musser Eng'g, Inc., 32 FMSHRC 1257, 1280–81 (Oct. 2010); see
also W. Ridge Res., Inc. , 37 FMSHRC 1061, 1067 (May 2015) (ALJ). Evaluation
of the four factors is made assuming continued normal mining operations. U.S.
Steel Mining Co. , 6 FMSHRC 1573, 1574 (July 1984).

Here, the Secretary has proven a
violation of a mandatory safety standard, 30 C.F.R.
§ 56.3131. The hazard addressed by the standard is that of loose material
falling from the wall when a miner is working below. Perales testified that a
vibration could cause material to come down. He observed the loader working in
the area, and there were tire tracks from a loader close to the cited area. I
find that it was reasonably likely that material would fall while the loader
was working below, satisfying the second Mathies element.

The
third Mathies element requires proof that the hazard created was
reasonably likely to result in injury. Musser Eng'g, Inc., 32
FMSHRC at 1280–81. Respondent argues that injury was unlikely because no one
was assigned to work directly below the loose rocks. Resp. Br. 8. Respondent
further argues that even if a miner did enter the area, loader operators are
required to move at a 45-degree angle, allowing them to see any falling
material, and the length of the loader would keep the operator at least 26 feet
from the wall. Resp. Br. 8-9. Even accepting that a
miner was unlikely to enter the area before the next blasting cycle, the tire
tracks indicate that a loader operator did approach the wall while the hazard
was present. The inspector and Evans gave differing opinions on whether a
loader operator would be exposed to injury from a falling rock. I found the
inspector to be a credible witness and accept his testimony on this point.  Based
on the proximity of the tire tracks to the wall, I find that it was reasonably
likely that a rock would strike the loader if it fell. The inspector noted that
a rock could come through the window of the loader and strike the operator. The
rocks were of varying sizes, but he testified that even a small rock could
contribute to a fatal injury. I credit his explanation and find that the
violation was reasonably likely to result in a reasonably serious injury. I
find that the violation was S&S and affirm the gravity as issued.

C.     Negligence

The
Secretary alleges that the violation involved high negligence on the part of
the operator.

In evaluating negligence, the
Commission employs a traditional negligence analysis based on whether an
operator failed to meet the requisite standard of care. Brody Mining, LLC ,
37 FMSHRC 1687, 1702 (Aug. 2015). Operators are held to a high standard of care
under the Mine Act. Am. Coal Co ., 38 FMSHRC 2062, 2083 (Aug. 2016); Brody ,
37 FMSHRC at 1702. The Commission considers what actions a reasonably prudent
person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation would have taken under the same
circumstances. Brody , 37 FMSHRC at 1702. High negligence “suggests an
aggravated lack of care that is more than ordinary negligence.” Id. at
1703 (quoting Topper Coal Co. , 20 FMSHRC 344, 350 (Apr. 1998)).

The inspector testified that it is
an industry-wide practice to inspect the highwall and scale after every shot
before work can proceed. The loose rocks and breakage here were obvious and
should have been noticed and addressed before the loader was allowed to work in
the area. I affirm the high negligence designation. 

V.     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 Co. , 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).

The Secretary
proposed a penalty of $1,806.00. The mine has not been cited under this
standard in the past 15 months. Sec’y Ex. 3. The parties stipulated that the
violation was abated in good faith and the proposed penalty will not affect
Respondent’s ability to remain in business. Jt. Stips. ¶¶ 9, 10. As discussed
above, the violation was reasonably likely to cause an injury resulting in lost
workdays or restricted duty and involved high negligence on the part of the
operator. I find that the proposed penalty of $1,806.00 is appropriate to the
violation.

VI. ORDER

Respondent
is hereby ORDERED to pay the Secretary of Labor the total sum of $1,806.00 within 30 days of this order. [5]

/s/
David P. Simonton

David
P. Simonton

Administrative
Law Judge

Distribution: (U.S. First Class Mail)

Christopher D. Lopez-Loftis,
U.S. Department of Labor, Office of the Solicitor, 525 Griffin Street, Suite
501, Dallas, TX 75202

Karen L. Johnston, Benjamin J. Ross,
Jackson Kelly PLLC, 1099 Eighteenth Street, Suite 2150, Denver, CO 80202

[1] In this decision, the transcript, the joint
stipulations, the Secretary’s exhibits, and Respondent’s exhibits are
abbreviated as “Tr.,” “Jt. Stips.,” “Sec’y Ex. #,” and “Resp. Ex. #,”
respectively.

[2] Emilio Perales has worked as a mine inspector for
MSHA for 20 years. Tr. 8. Prior to that he was employed in the mining industry
for 16 years in shipping, production, and as a safety manager. Tr. 9. His work
experience was at the Beckmann quarry, the mine that is the subject of this
proceeding. Tr. 8-9. As a safety manager, Perales managed the safety aspects of
drilling, loading, and blasting on highwalls, and he has inspected many mines
with highwalls. Tr. 10. Perales has also completed the course of regular
training required of inspectors. Tr. 8.

[3] Perales referred to this corner as the southeast
corner, while Evans called it the southwest corner. Tr. 13, 37. I will refer to
it as the southwest corner for consistency.

[4] There was some confusion in the witnesses’ testimony
as to the meaning of the terms “active” and “inactive” and which areas of the
mine were active. The inspector referred to the area with the partial berm
shown in Exhibits 2-1, D-7, and D-8 as “inactive.” Tr. 13-14, 21, 32. He
referred to the other area, where there was a loader, tire tracks, and back
breakage, as “active.” Tr. 23, 32. Evans at first referred to the area with the
partial berm as “done,” “inactive,” and “mined out.” Tr. 36, 38, 48. He then
stated that that area was “part of the active mine,” and later that it was the
same area as the area with the loader, but seen from a different angle. Tr.
52-53. In response to further questions, he referred to the area with the
loader as both active and inactive. Tr. 54-56. Evans then claimed he had been
confused about the definition of “active,” and had only meant that miners were
not presently digging and mucking in some areas. Tr. 56. In terms of whether
mining would continue on the wall, he stated that only the south wall was
completely inactive. Tr. 56. The inspector’s testimony was more consistent, and
I credit his account. I find that the south wall was “inactive” in the sense that
mining would not continue in that direction, while the west wall was actively
being mined.

[5] 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