Central Sand and Gravel Company

Plain-English summary

Central Sand and Gravel operated a sand and gravel facility in Nebraska. The ALJ found that a stockpile had been built too close to overhead high-voltage powerlines, violating the clearance requirements in 30 C.F.R. § 56.12045. An 11-year-old boy entered the property, climbed the stockpile, contacted a powerline, and died, and the ALJ found the violation significant and substantial. The ALJ found ordinary negligence rather than unwarrantable failure because the operator had not been given more specific notice about stockpile clearances and had posted and fenced the property. The proposed $25,000 penalty was reduced to $6,000.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.12045
• Outcome: The citation was affirmed, the unwarrantable-failure allegation was rejected, and a $6,000 civil penalty was assessed.
• Key point: A temporary stockpile is an installation for purposes of overhead powerline clearance requirements, but the record did not establish aggravated negligence.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3868
Telephone: 202-653-5454
Telecopier: 202-653-5030

                                      June 30, 2000

CENTRAL SAND AND GRAVEL : CONTEST PROCEEDING
COMPANY, :
Contestant : Docket No. CENT 98-230-RM
v. : Citation No. 7926022; 7/15/98
SECRETARY OF LABOR, :
MINE SAFETY AND HEALTH : Pit No. 77 Grand Island
ADMINISTRATION (MSHA), : Mine ID 25-00686
Respondent :
:
SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. CENT 99-242-M
Petitioner : A. C. No. 25-00686-05515
v. :
CENTRAL SAND AND GRAVEL, : Mine: Pit No. 77 Grand Island
COMPANY, :
Respondent :

                                       DECISION

Appearances:
Mark E. Novotny, Esq., Lamson, Dugan & Murray, LLP, Omaha,
Nebraska, for Contestant;
Mark W. Nelson, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for Respondent.

Before: Judge Barbour

    These are contest and civil penalty proceedings that arise under Section 105 of the Federal

Mine Safety and Health Act of 1977 (30 U.S.C. §815) (Mine Act or Act). They involve one
citation issued to Central Sand and Gravel Company (Central Sand) at the company’s Pit No. 77,
a sand and gravel extraction and processing facility in Hall County, Nebraska. The citation was
issued after a fatal accident that occurred at the mine on July 1, 1998.

                                              779


    The accident took the life of a 11-year-old boy. Personnel from the Hall County Sheriff’s

Department, the City of Grand Island Utility Department, and the Secretary of Labor’s Mine
Safety and Health Administration (MSHA) conducted investigations. As a result of its
investigation, MSHA issued to the company the subject citation. It charges the company with a
violation of 30 C.F.R. § 56.12045, a mandatory safety standard for surface metal and non metal
mines requiring installation of overhead powerlines as specified by the National Electric Code
(NEC). It also charges that the violation was a significant and substantial contribution to a mine
safety hazard (S&S) and was the result of Central Sand’s unwarrantable failure to comply with
Section 56.12045.1 In contesting the validity of the citation the company argues that the cited
conditions do not constitute a violation, or if they do, the violation is neither S&S nor
unwarrantable. Finally, in her civil penalty petition the Secretary proposes the assessment of a
penalty of $25,000 for the violation. She asserts, among other things, the company’s high
negligence justifies the amount.

   These cases were consolidated for hearing and decision. After extensive discovery, they

were heard in Grand Island, Nebraska. Counsels have submitted helpful briefs.

                                        THE ISSUES

  The primary issues are whether the company violated either Section 56.12045 or Section

56.12030, and if so whether the violation is S&S and unwarrantable. If a violation is found, the
amount of the civil penalty also is at issue.

                                   THE STIPULATIONS

   The parties stipulated as follows:

                  l. [Central Sand] is engaged in the mining and selling of
           sand and gravel . . . [a]nd its mining operations affect interstate
           commerce.

                  2. [Central Sand] is the owner and operator of Pit No. 77[,]
           Grand Island Mine.

                 3. [Central Sand] is subject to the jurisdiction of the . . .
           Mine Act.

                     4. [T]he Administrative Law Judge has jurisdiction in this
           matter.


   1
     Subsequently, the Secretary amended her petition to charge in the alternative a violation

of 30 C.F.R.§ 56.12030, a mandatory standard requiring that “[w]hen a potentially dangerous
condition is found it shall be corrected before . . . wiring is energized.”

                                             780


                  5. [Citation No. 7926022] was properly served by a duly
           authorized representative of the Secretary upon an agent of
           [Central Sand] on the date and placed stated there[on].

                   6. The exhibits offered by the parties are stipulated to be
           authentic but [the parties] make no stipulation as to the relevance
           or the truth of the matter[s] asserted therein.

                    7. [T]he proposed penalty [of $25,000] will not affect the
           ability of [Central Sand] . . . to continue in business.

                  8. [Central Sand] is a mine operator with 12,638 hours of
           work at Pit No. 77 . . . in 1998 . . . [a]nd with 259,746 total hours
           of work . . . in 1998.

                  9. [A] copy of the MSHA Assessed Violation History
           Report accurately reflects the history [of previous violations] of this
           mine for . . . two years prior to the date of . . . [C]itation No.
           7926022 (Tr. 9-10).

   Based on the stipulations counsel for the Secretary characterized Central Sand as a large

operator with a moderate to small history of previous violations (28).

                                       THE FACTS

                                         The Mine

     No. 77 Pit is a sand and gravel mine that encompasses between forty and fifty acres (Tr.

315). A lake abuts the southern edge of the land portion of the mine. The company owns almost
half of the lake. The company’s dredge is on the lake. The dredge suctions sand and gravel from
the lake bottom. A pipeline carries the sand and gravel across the lake to a screening plant. The
plant is north of the lake shoreline. The material is processed at the plant, and a conveyor belt
carries it to a radial stacker. The stacker deposits the sand and gravel in one of six stockpiles that
are maintained north of the stacker. The maximum height of a stockpile made by the stacker is
approximately 45 feet (Tr. 161-162, 292). A front end loader is used to transfer the processed
material from the piles to customers’ trucks (Tr. 331-332).

    Official access to the mine is gained through an entrance gate on the western side of the

property. A gravel access road runs along the northern side of the property. The road leads from
the gate, to the mine office, the maintenance building, and the stockpiles. The road traverses the
property in a generally west to east direction. High voltage powerlines run somewhat parallel to
the road. They cross the road in at least two places before they make a turn to the south, cross
the road again, and proceed to an electrical shed and transformer. Before arriving at the shed and

                                             781

transformer, the lines pass over the western side of one of the stockpiles. The accident occurred at
this stockpile. Although it is located where previous stockpiles existed, the particular stockkpile
was there for less than two weeks before the accident (Tr. 122).

   The powerlines are carried on utility poles. At the point where they cross the stockpile

they consist of two parallel high voltage lines and one static line. The static line runs above the
high voltage lines (See Gov. Exh. 1; Tr. 69).

   The northern side of the access road to the stockpiles is bermed with three to four feet

sand berms (Tr. 226, Exh. C 15 at CSG 210, GSC 216). Immediately north of the berms is a
zone of dense brush and other vegetation. Here the land falls to the southern bank of a river.
Across the river is another zone of dense brush and vegetation, as well as a barbed wire fence.
The fence marks the northen extremity of mine property. A trailer court of privately owned
mobile homes is located adjacent to the property (Tr. 123-124, See generally Gov. Exh. G 1, Exh.
C 3).

    Entry to the mine is restricted. A vehicle coming into the mine must proceed through the

gate, which is secured at the end of the business day, and must pass the mine office. The mine is
posted with "no trespassing" signs, including signs located along the northern side of the road,
between the river and the stockpiles (Tr. 221-222, 227, 229; Exh. C 11 at CSG 201, CSG 206,
GSG 221, CSG 222, CSG 235, CSG 237, Exh. C 3). Although additional signs were added after
the accident, several were in place before it occurred (Tr. 294).

     Despite the gate, fence, and signs, unauthorized entry is possible. At points between the

trailer court and the mine, the fence is down or otherwise in need of repair (Tr. 176-178). In
addition, because the lake cannot be fenced, both the dredge and mine property that borders the
lake can be visited by boaters (Tr. 214).

                                       The Accident

  On the evening of July 1, 2000, Deputy Frank Bergmark, an investigator of the Hall

County Sheriff’s Office was called at home and told there had been an accident at Pit No. 77.
Bergmark immediately went to the pit, where he was met by an officer of the Grand Island Police
Department.

     Bergmark and the officer went to the accident site. Although the rescue squad already had

removed the victim, Bergmark learned that the boy involved in the accident was a resident of the
trailer court. After the close of work, the victim and a friend left home and crossed the fence onto
mine property (Tr. 124). The boys traveled across the river and walked through the brush to the
access road. They then began to "meander" about the pit. As the boys wandered they left
footprints. By observing the footprints, Bergmark was able to determine that the victim and his
friend ultimately arrived at the subject stockpile and ascended it. Looking at the stockpile
Bergrmak saw that the high voltage powerlines were “very close” to the pile (Tr. 41). Bergmark

                                             782

was told that as the victim started to descend the western side of the pile, he contacted one of the
powerlines (Tr. 42-43).

    Bergmark’s scenario of the boys’ travels and of the events of July 1, generally agreed with

that of Lloyd R. Caldwell, an MSHA inspector who was assigned to investigate the accident for
the agency and who arrived at the mine on the morning of July 2.2 However, Caldwell was able
to provide some additional details concerning what happened.

    Caldwell testified that reaching the river was not that difficult for the boys because the

fence was pushed down in several places and paths ran through the dense vegetation between the
fence and the river. He observed that after they crossed the river and walked up its south bank
through the brush to the access road, the boys passed, but clearly did not heed, a "no trespassing"
sign (Tr. 124, 220-221). He learned that the boys were playing a game of “007", which involved
chasing one another, perhaps with water guns (Tr. 125).

    John Brezina, Central Sand’s mine manager, traveled with Caldwell during most of

Caldwell’s on-site investigation (Tr. 303-304, 306-307). Brezina testified that the footprints
indicated the boys first attempted to climb a stockpile other than the one where the accident
occurred, but gave up because they could not keep their footing (Tr. 307).

     All agreed that when the boys came to the subject stockpile they were able to ascended to

its top (Tr. 125-126). Once at the top, the victim started down its western side. The sand and
gravel acted “like a pile of roller bearings”(Tr. 123) and the victim began to slid. Bergmark
surmised that the victim, who was approximately 5 feet tall, must have seen the powerlines, which
were about 10 feet below the summit of the stockpile (Tr. 57, 62). Realizing he was fast
approaching the lines, the victim leaned backward, trying to go feet-first under them. Part of his
body cleared, but one of his hands moved upward and touched the powerline closest to the
stockpile (Tr. 30, 45, 123; See Gov. Exhs. 3F, 3G). The victim was electrocuted. Subsequently,
his body slid down the pile, until he come to rest about 15 feet above ground level.

   In the meantime, the victim’s friend ran back to the trailer court and told the victim’s

mother to come quickly, that her son was hurt. She raced to the scene where she found the boy.
A short time later rescue personnel arrived and attempted to revive him. The victim was rushed to
the hospital where he was pronounced dead (Tr. 58).

                           The Powerlines and The Stockpile

    Bergmark determined that during the time between the accident and his arrival no rescue

personnel nor other persons had been to the top of the stockpile. Nor had anyone been on the pile
at the point where the victim touched the powerline (Tr. 58). Therefore, when Bergmark

   2
     Following the investigation, Caldwell retired. Therefore, when he testified Caldwell no

longer worked for the agency.

                                            783

measured the distance from the powerlines to the stockpile, he believed his results reflected
conditions as they existed at the time of the accident. It was difficult for Bergmark to make the
measurements because when he moved or walked near the points he was trying to measure, the
sand and gravel shifted and slid down the pile (Tr. 44, 53-54, 57). Nevertheless, Bergmark found
that the vertical distance (or clearance) from the nearest line to the surface was 29 inches and that
the horizontal distance was 60 inches (Tr. 44, 56).3

    The powerlines where installed in 1978, by the City of Grand Island Utility Department.

They had not been altered or changed since (Tr. 31, 92, 93-94, 213, See also Tr. 294). The
powerlines carried three-phase, 13,899 volts of electricity, which was described by Rober Smith,
the assistant director of the department, as "standard primary voltage" (Tr. 67).

    On the morning of July 2, Smith went to the mine with other utility department employees

and with the Grand Island city attorney. The group wanted to determine the role played by the
powerlines in the accident (Tr. 65). A bucket truck was brought to the scene. A utility
department employee went up in the bucket and measured the height of the lines from the ground
(Tr. 66). He determined that the powerlines were 25 feet, 5 inches from the ground and that the
static wire above the lines was 29 feet, 10 inches from the ground. The employee also measured
the height of the stockpile, which he found to be 35 feet, 7 inches high (Tr. 69, Gov. Exh. 4)).

                Inspector Caldwell, The Investigation, and The Citation

     In addition to being an inspector and accident investigator, Caldwell is a certified

electrician. When he worked for MSHA, Caldwell’s duties included the training of inspectors
with regard to the meaning and application of MSHA’s electrical regulations (Tr. 103-105).

   Caldwell’s July 2, investigation of the accident was interrupted by the July 4, weekend.

Caldwell and another MSHA employee returned on July 7 and July 8 (Tr. 106-108). At the
conclusion of the investigation the men submitted a written report to MSHA (Tr. 110; Gov. Exh.
8).

     During the investigation Caldwell relied on Bergmark’s measurements (See Tr. 116, 117-

119, 170-171; See also n. 3 supra). In Caldwell’s view, the clearances Bergmark measured did
not meet those required by the NEC (Tr. 129-130, 137). Therefore, he issued Citation 7926022
to Central Sand, charging the company with a violation of Section 56.12045. In addition,
although the regulation states compliance with the code is required when the powerlines are
"installed", Caldwell testified he “looked at the installation not as the physical work to install . . .
[the powerlines], but as the installation as a unit that was there at the time that [he] viewed the
operation” (Tr. 127).

    3
      Caldwell also noted the instability of the pile. In fact, he found that it was so unstable he

did not climb it to measure the vertical and horizontal clearances (Tr. 116).

                                              784


    Caldwell found that the violation was “S&S” because “the accident occurred and the

accident was fatal" (Tr. 139). He further found that the company’s negligence was “high”
because “the company knew or had good reason to know that the violation existed and . . . would
cause injury" (Tr. 142). As for the company’s unwarrantable failure to comply with Section
56.12045, he stated “unwarrantable failure means there ain’t no damn excuse for it happening .
And that it just exactly the way I felt about it” (Tr. 141).

                                   THE VIOLATION

   In charging a violation of Section 56.12045, Citation No. 7926022 states:

                    On July 1, 1998 at approximately 8:45 p.m., an eleven-year-
           old boy was electrocuted when he contacted a bare power line.
           The victim was sliding down the road gravel stockpile when he
           made contact with one phase conductor of the 3-phase 13.8 KV
           power line which ran to the plant substation. The power line was
           originally installed in compliance with the national code by the local
           utility. Production personnel at the mine had allowed the road
           gravel stockpile to build under the radial stacker so that the pile
           was more than 10 feet higher than the power line and the west side
           of the pile was less than 2 feet from the line. Failure to maintain
           adequate clearance between this high power line and the stockpile
           constitutes more than ordinary negligence and is an unwarrantable
           failure to comply with a mandatory safety standard (Gov. Exh. G-
           9).


   Section 56.12045, is worded in a straightforward manner. The powerlines must be

“overhead”, they must be “high-potential”, and they must “be installed” according to the
requirements of the NEC.

    Here, the powerlines clearly were "overhead". Smith testified without dispute that the

lines were 25 feet, 5 inches above the ground, which is "overhead" by any definition of the word
(Tr. 69). Also, the lines were "high potential". Section 56.2 (30 C.F.R. §56.2) defines "high
potential” powerlines as lines that carry more than 650 volts. Smith testified, again without
dispute, that the lines in question carried electricity far in excess of 650 volts (Tr. 67).

    Were the powerlines installed as required by the NEC? Both former inspector Caldwell

and city utility department assistant director Smith agreed that the NEC incorporates by reference
the National Electric Safety Code (NESC). They also agreed it is the NESC that mandates how
high-potential powerlines must be installed, including requirements for the various clearances that
must be maintained (Tr. 59, 63-64, 79, 131; Gov. Exh. 6 at 70-31, 70-57 FPN). I accept their
undisputed testimony.

                                            785


    Turning to the NESC (Gov. Exh. 7), I find that although it does not specifically reference

stockpiles as points of departure for determining required clearances, a reasonable operator
parsing the code would conclude stockpiles come within its broader categories.

     A purpose of the NESC is to institute "safety rules for the . . . maintenance of overhead

electric supply . . . lines" (Gov. Exh. 7 at 59). Clearance requirements for such lines are among
the code’s specified safety rules. The requirements are found in Section 23 (Gov. Exh. 7 at 69),
which is divided into various subsections containing tables specifying the clearance for conductors
carrying various voltages when the conductors are located above and around various facilities and
surfaces.

     An operator attempting to comply with the code first would note that Section 23, “covers

all clearances . . . involving overhead supply . . . lines” and would recognize the lines in question
are overhead supply lines (Gov. Exh. 7 at 69). Next, the operator would note that Section 23,
applies to “[p]ermanent and [t]emporary installations” (Id.) and would know that the stockpile is
"temporary" in that it is built up in order to be depleted. Further, the stockpile is an "installation",
in that it is "installed". To install is to set up for use (Webster’s Third New International
Dictionary (1986) at 1171)), and stockpiles, including the stockpile in question, are set up as
repositories for material that later is sold, loaded, and usually is used elsewhere.

    Having determined that Section 23, applies to the powerlines and to the stockpile, an

operator attempting to comply with the NESC would review the subsections of Section 23, to
determine which is applicable. In so doing, an operator would find that Subsection 231, the first
subsection, applies to "[s]upporting structures, support arms and equipment attached thereto, and
braces” (Gov. Exh. 7 at 71). The operator would know that the stockpile is not a "supporting
structure" for the overhead conductor nor is it a "support arm” or a “brace” for the powerlines in
question (Id.).

    The operator would proceed to Subsection 232, which is titled, Vertical Clearance of

Wires, Conductors, Cables, and Equipment Above Ground, Roadway, Rail, or Water Surfaces.
The operator rightly would know that the stockpile in question is not a "roadway" (no vehicles
travel over it). It is not a "[r]ail or [w]ater surface". Nor is it "ground" as the word usually is
used, for although it is made up of earth, it is not a surface upon which persons normally stand
nor upon which they move, dwell, nor upon which objects naturally rest (See Webster’s at 1002).
Rather, a stockpile is a purposefully constructed feature of the mine, a "heap of material formed
to create a reserve for loading or other purposes" (American Geological Institute, Dictionary of
Mining, Mineral, and Related Terms (1996) at 540)). Therefore, the operator would find that
Subsection 232, is inapplicable.

    The operator’s finding would be confirmed when the operator examined the tables that set

forth the precise requirements of Subsection 232. They specify areas for which clearances are
required. In so doing they refer to areas that are subject to regular or restricted traffic by
pedestrians, sailors, swimmers, or vehicles. Front-end loaders load material into trucks from the

                                              786

base of the stockpile, and the witnesses agreed that neither loaders, other vehicles, miners, nor
anyone else travel or work on the stockpile so that it is not subject to traffic of any kind.

   The next subsection, Subsection 233, is titled, Clearance Between Wires, Conductors, and

Cables Carried on Different Supporting Structures (Gov. Exh. 7 at 84). The operator would
know that the question is not the proper clearance between the conductors but rather the proper
clearance from the surface of the stockpile to the conductors. In addition, the operator would
know that the conductors under consideration are carried on common (not on different)
supporting structures.

      It is at Subsection 234, that the operator would find the clearance requirements for the

stockpile. The subsection is titled, Clearance of Wires, Conductors, Cables and Equipment from
Buildings, Bridges, Rail Cars, Swimming Pools, and Other Installations. As I have noted, a
stockpile is an installation. This being the case, the operator would use Table 234-1, to find the
clearances prescribed (Gov. Exh. 7 at 101). The table is itself divided into two categories, the
first is "[b]uildings" but the stockpile is not a building. The second is "[s]igns, chimneys,
billboards, radio and television antennas, tanks, and other installations not classified as buildings
or bridges" (Id.). Realizing that the stockpile can only be one of the "other installations" and
therefore that the second category of Table 234 -1 applies, the operator would determine that for
"supply conductors over 750 v[olts]" a vertical clearance of 8 feet and a horizontal clearance of 7
½ feet is required. Then, noting that the horizontal clearance requirement bears a footnote that
allows the requirement to be reduced by two feet when no maintenance is required on the
installation (Gov. Exh. 7 n. 1 at 102), the operator further would determine that the actual
horizontal clearance required is 5 ½ feet because no maintenance is required on the stockpile
(Gov. Exh. 7 at 101 (Table 234-1 n. 1 at 102)).4

    Does the evidence establish that on the July 1, 1998, Central Sand failed to maintain a

vertical clearance of 8 feet and a horizontal clearance of 5 ½ feet? No one who witnessed the
accident testified. Therefore, clearances at the time of the accident must be inferred from
testimony regarding conditions both before and immediately after the event.

   4
     It should be obvious at this point that despite the straightforward wording of the

standard, by incorporating the NEC and the NESC into the standard, the Secretary has adopted
an approach to regulation that is not "user friendly" — to say the least. It takes diligence to sift
through the many sections, subsections, and tables of the codes and find applicable requirements.
Indeed, the difficulties inherent in the approach are evidenced in this case in that even those most
familiar with the codes, Smith and Caldwell, seemed unsure at times as to which particular
provision applied (See Tr. 74-75, 89-90, 132-133, 156-157, 159, 168-169, 188). This said,
despite their complexity the codes are not impossible to understand and to apply. Although there
may be a more direct and less difficult way to regulate required clearances, the Secretary’s
approach is not impermissible. Therefore, it is the duty of each operator to have a thorough,
working knowledge of the codes’ contents and applications.

                                            787


    Central Sand did not offer any reliable evidence regarding the clearances as they existed

prior to the accident. The company’s inspection reports do not reference the clearances (Tr. 268-
269) and although the mine manager, Brezina claimed that the “rule of thumb” at the mine is to
maintain clearances of at least 10 feet (Tr. 270-271, 339), the way he determined the distances —
by eyeballing them, frequently from inside a moving vehicle (Tr. 339) — is not conducive to
accurate measurement. As he stated, it is “just kind of guess judging” (Tr. 340).

    On the other hand, sound inferences that the required clearances were not maintained can

be drawn from the accident and the post-accident observations of the investigators. The most
important fact is that the victim touched the wire. Obviously, a five-foot tall, eleven-year-old boy
would not have done so had there been a vertical clearance of 8 feet. Second, when a vertical
clearance of 29 inches and a horizontal clearance of 60 inches were measured by Bergmark on
July 2, no one had been on the pile and disturbed the accident site between the time the accident
occurred and the time Bergmark measured (Tr. 58). Further, Bergmark emphasized that in
reaching the site to make the measurements he disturbed conditions as little as possible (Tr. 41).

     Moreover, there is no dispute that on July 2, the stockpile was 35 feet, 7 inches high (Tr.

69). The company hypothesizes that on the previous day the stockpile had been 45 feet high (the
maximum height of a stockpile built by the radial stacker) (Tr. 292-293)); that the high voltage
lines had adequate clearance on July 1; but that the victim pushed sand and gravel ahead of him
as he slid down the slope toward the powerlines (Tr. 161-162, 299). Sand and gravel lost at the
top reduced the height of the stockpile, built up under the powerlines, and altered the clearance to
less than required.

    Caldwell rejected this theory. In his view the top of the stockpile had not been disturbed

after the stacker last added to the pile. Caldwell based his opinion on his observation of the
stockpile, and he testified that photographs the government entered into evidence confirm what he
had seen. He stated, “Very quickly you can look at the photographs and you can see that the top
of the pile has not been disturbed” (Tr. 162).

    I find Caldwell’s testimony compelling, for as he pointed out, the photographs clearly

depict undisturbed water streaks from the wet sand and gravel the stacker last put on the
stockpile. Since the stockpile was not added to after the accident or before the photographs were
taken, I agree with Caldwell that the top of the pile was not significantly reduced prior to the
accident (Tr. 162-163; Gov. Exh. 3b, Gov. Exh. 3e). Further, although Caldwell agreed that
there could have been movement of material on the side of the pile (Tr. 162), he did not believe
movement occurred in the immediate accident area, and he testified that the photographs of the
area did not reveal any signs of significant movement (Tr. 165). Again, I agree.

   Given the testimony and the exhibits, I conclude that while some movement of sand and

gravel may have been caused by the boys, the material was not moved to such an extent that
otherwise permissible clearances went out of compliance. Rather, I find that the evidence and
testimony permit the inference that the clearances were out of compliance with the NESC prior to

                                            788

and at the time of the accident.

     The final question is whether the powerlines were "installed" according to the code.

Caldwell stated that the phrase “shall be installed” meant that the powelines not only had to be
fixed in position for use according to the code, they also had to be maintained in compliance (Tr.
126). Caldwell’s construction is logical. To read the phrase as applicable only to the original
positioning of the lines would negate much of regulation’s protective intent. Powerlines, once
installed, tend to be permanent, whereas conditions around and under them frequently are subject
to change. For these reasons I conclude that because the subject powerlines were not maintained
in compliance with the NESC, they were not “installed as specified”. Therefore, Central Sand
violated Section 56.12045 as cited.5

                                   S&S and GRAVITY

    A violation is significant and substantial, if based on 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 (Arch of Kentucky, 20 FMSHRC 1321, 1329
(December, 1998); Cyprus Emerald Resources, Inc., 20 FMSHRC 790, 816 (August 1998);
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981)). In Mathies Coal Co., 6 FMSHRC 1
(January 1984), the Commission held that in order to establish a S&S violation of a mandatory
standard the Secretary must prove: (1) the existence of an underlying violation; (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 the injury in question will be of a reasonable serious nature.

    The Secretary met her burden. The violation existed as charged. The hazard contributed

to by the failure of the company to maintain the required clearances is the danger that a person
will touch the powerline and be shocked, burned or electrocuted. When, as here, clearances for
an unguarded high voltage powerline are reduced to the point where a boy of eleven can not
proceed upright past and under them without contacting the lines, there is a reasonable
likelihood that the lines will be touched and serious injury or death will result.

    The Commission recently has reemphasized that the focus of the gravity criterion is on

"the effect of the hazard if it occurs" (Hubb Corp., 22 FMSHRC 606, 609 (May 2000) (quoting
Consolidation Coal Co., 18 FMSHRC 1541, 1550 (September 1996)). In this case, the hazard
occurred, and its effect was lethal. This is a very serious violation.

                UNWARRANTABLE FAILURE and NEGLIGENCE



   5
     In view of this conclusion I need not reach the issue of whether the company violated

Section 56.12030.

                                            789


   The Commission has defined unwarrantable failure as aggravated conduct constituting

more than ordinary negligence (Emery Mining Corp., 9 FMSHRC 1997, 2001 (December
1987)). The Commission also has stated that unwarrantable failure is conduct that is
characterized by reckless disregard, intentional misconduct, indifference or a serious lack of
reasonable care (Emery, 9 FMSHRC at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC
189, 194 (February 1991)).

    Several factors must be considered in analyzing whether a violation results from

unwarrantable failure, among these are: "the extensiveness of the violation, the length of time
that the violative condition has existed, the operator’s efforts to eliminate the . . . condition, and
whether [the] operator has been placed on notice that greater efforts are necessary for
compliance" (Mullins and Sons Coal Co., 16 FMSHRC 192, 195 (February 1994)). The
culpability determination required for a finding of unwarrantable failure is similar to gross
negligence or recklessness. It is more than a "knew or should have known" test (Virginia Crews
Coal Co., 15 FMSHRC 2103, 2107 October 1993)).

     In view of these and other factors, I conclude that Central Sand did not unwarrantably

fail to comply with Section 56.12045. First, the violation was not easy to detect. To determine
whether the company was in compliance, the mine examiner had to judge the horizontal and
vertical distance between the lines and the slope of the stockpile from ground level, either while
driving past the pile or while out of the vehicle and on the ground. In the case of the subject
stockpile this meant making a judgement call from 29-feet or more below and at an angle to the
lines (Tr. 44. 330, 340). This method of determining compliance, while difficult, was
reasonable given the size of the mine and the location of the powerlines. There is nothing in the
record to suggest that MSHA advised the company to measure the distance from another
location (for example from the top or side of the stockpile) or always to estimate the distance
while standing at the base of the stockpile.

    Second, it is the nature of stockpiles that they are not necessarily built at one time.

Material may be deposited on them over a series of shifts or even days. Although the subject
stockpile had been in existence for up to nine days prior to the accident (Tr. 315, See also Tr.
122), the Secretary did not bring forward evidence to establish when the size of the pile reached
the point where the vertical and horizontal clearances went out of compliance. Thus, it may well
be that the violation existed for a very shot time prior to the accident (Tr. 314-315).

   It is clear from Caldwell’s testimony that MSHA was concerned about clearances for

high voltage powerlines where the lines crossed mine roads or ran above areas where trucks
were loaded or unloaded (Tr. 134-135, 161). It is also clear the agency’s concern extended to
clearances above stockpiles. Stanley Benke, the company safety director, admitted that at joint
MSHA/industry workshops it was Caldwell who warned company representatives about the
hazards of powerlines and high voltage wires above stockpiles.

   Benke testified that Caldwell "said . . . its a recommended practice -- safe practice to try

and keep stockpiles and materials away from powerlines [and that] [i]f you’re not within the

                                             790

mandated requirements as far as clearances that it could result in a citation" (Tr. 252). However,
Caldwell’s warning was general in nature and was directed to all operators at the meetings.
Central Sand was not singled out and told that it needed to exert greater efforts to ensure
compliance with regard to clearances above stockpiles at its mines. In fact, other stockpiles had
existed at the location of the cited stockpile, and the Secretary offered no evidence that the
company was cited previously for a violation of the clearance requirements with respect to its
stockpiles. The subject incident may represent the one and only time prior to July 1, that
powerlines ran too close to a stockpile at the mine.

   Based on the testimony and the lack of any evidence regarding previous violations of

Section 56.12045, I conclude that although Central Sand was aware it was required to comply
with the clearance requirements in situations where high voltage lines ran above its stockpiles, it
was not on notice that greater efforts were needed to ensure compliance.

    Finally, Central Sand had no reason to think a person would come near the lines. Miners

never worked nor traveled on the stockpile. The only person the company might have
anticipated would be endangered is a trespasser, and Central Sand posted and fenced its property
to prevent unauthorized entry. While it is true that it might have posted a greater number of "no
trespassing" signs and might have better maintained its fence (Tr. 176), the company’s lack of
care was not such as to be gross or reckless.

    The testimony revealed the company experienced one prior instance of trespassing, one

that involved vandalism to the dredge on the lake, but the company’s safety director, who is
likely to know, could think of no prior incident that involved the stockpile or that occurred
anywhere near it (Tr. 215). Moreover, while the victim’s mother testified the victim played on
mine property prior to the accident and she had warned him not to go there again, there is no
evidence she alerted the company to the fact (Tr. 38, See also Tr. 309).

    Given all of these factors and the lengths to which the boys had to go to place themselves

in harm’s way — pass the fence, travel through dense brush, cross the river, walk past at least
one “no trespassing” sign, and climb to the top of the stockpile — I cannot find that Central
Sand’s lack of care was aggravated or more than ordinary. Rather, the company failed to exhibit
the ordinary care that was required by the circumstances, and in this way it was negligent.

                              CIVIL PENALTY CRITERIA

     I have found that the violation was very serious and was the result of the company’s

failure to exercise the care required. In assessing a civil penalty, the Act mandates that I also
consider Central Sand’s history of previous violations, the size of its business, the effect of the
penalty on the company’s ability to continue in business, and its good faith in attempting to
comply rapidly after being charged (30 U.S.C. §820(i)).

   As noted above, Counsel for the Secretary characterized Central Sand’s history of

previous violations as moderate to small and the company’s size as large (Tr. 28). The parties

                                             791

agreed that a penalty of up to $25,000 would not affect the company’s ability to continue in
business (Stipulation 7). The company abated the violation in a timely fashion and with good faith
by trimming the stockpile to obtain the clearances required (Gov. Exh. 9).

   Considering all of these factors, and taking note especially that the company’s negligence

was not aggravated, I conclude that a civil penalty of $6,000 is warranted. It is important to
understand that while the assessment faithfully reflects the statutory civil penalty criteria, serves as
an incentive for future compliance, and conforms in all respects to the law under which it is
imposed, it is not a valuation of the life that was lost or of the great pain that was and will
continue to be inflicted by this accident. Such things are beyond the Act.

                                           ORDER

   Within 30 days of the date of this Decision, Central Sand is ORDERED to pay a civil

penalty of $6,000. Upon payment of the penalty, these proceedings are DISMISSED.

                                                    David F. Barbour
                                                    Chief Administrative Law Judge

Distribution: (Certified)

Ann M. Noble, Esq., Associate Regional Solicitor, Office of the Solicitor, U.S. Department of
Labor, 1999 Broadway, Suite 1600, Denver, CO 80202-5716 6

Mark E. Novotny, Esq., Lamson, Dugan & Murray, LLP, 10306 Regency Parkway Drive,
Omaha, NE 68114-3743

/wd

    6
     Because trial counsel Mark W. Nelson since has left the Office of the Solicitor, the

decision is being distributed to the Associate Regional Solicitor.

                                              792