Secretary of Labor v. Hanson Aggregates Midwest, LLC

Plain-English summary

Hanson Aggregates operated the Upton Quarry, a surface limestone mine in Kentucky. MSHA cited a broken pressure gauge on a portable air tank, the absence of a visible no-smoking sign at a used-oil fire hazard, and defective access steps on a haul truck. Judge Michael E. Zielinski affirmed all three litigated violations and found the unstable haul-truck steps significant and substantial because regular use made a serious fall reasonably likely. He reduced the penalties for those citations to $925 after finding lower gravity for two violations and determining that MSHA's violation-history calculation overstated the operator's record. Hanson had withdrawn its contest of a fourth citation carrying a $392 penalty. The judge ordered Hanson to pay $1,317 in total penalties.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.13011, 56.4101, and 56.14100(c)
• Outcome: Three litigated citations were affirmed, one with amended gravity, and the operator was ordered to pay $1,317 including the uncontested citation.
• Key point: A defect that makes frequently used haul-truck access steps unstable can be significant and substantial when continued use makes a serious fall reasonably likely.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, D.C. 20004-1710

July 16, 2013

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner

v.

HANSON AGGREGATES MIDWEST, 

LLC, 

Respondent 

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CIVIL PENALTY PROCEEDING

Docket No. KENT 2012-1310-M

A.C. No. 15-00045-292005

Mine: Upton Quarry

DECISION

Appearances:  Ryan L. Pardue, U.S. Department of Labor, Denver, Colorado, on behalf of the Secretary of Labor; Charles M. Sellards, Lawrenceburg, Kentucky, on behalf of Hanson Aggregates
Midwest, LLC.

Before:            Judge Zielinski

This case is before me upon a Petition for Assessment of 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 petition alleges that Hanson Aggregates Midwest, LLC (“Hanson”), is liable for
four violations of the Secretary’s Safety and Health Standards for Surface Metal and Nonmetal
Mines, and proposes the imposition of penalties in the amount of $2,480.00. A hearing was held
in Louisville, Kentucky. Respondent withdrew its contest of Citation No. 8640966, leaving three
alleged violations at issue. Tr. 8-9. The parties elected to make closing arguments in lieu of
filing post-hearing briefs. For the reasons that follow, I find that Hanson committed the
violations and impose civil penalties in the amount of $925.00 for the litigated violations.

Findings of Fact - Conclusions of Law

Citation No. 8640965

Citation No. 8640965 was issued by Donald Gabbard

at 9:40 a.m. on May 8, 2012,
pursuant to section 104(a) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.13011 which
requires that “[a]ir receiver tanks . . . shall be equipped with indicating pressure gauges which
accurately measure the pressure within the air receiver tanks.” The violation was described in the
“Condition and Practice” section of the citation as follows:

The portable air receiver tank in the back of company pickup #30994 did not have
a functioning indicating pressure gauge. This exposed persons using this
equipment to the hazard of working with unknown pressures. The tank may be
used about once every two months. Injury can occur from over-pressurizing
vessels or hoses.

Ex. G-1.

Gabbard determined that the violation was unlikely to cause a permanently disabling
injury, that one person was affected, and that the operator’s negligence was moderate. A civil
penalty in the amount of $392.00 was assessed for the violation.

The Violation

On May 8, 2012, Gabbard inspected Respondent’s Upton Quarry, a surface limestone
mine. Tr. 18. He traveled with Eugene “Sam” Coats,

the supervisor of the mine, in Coats’ truck.
Tr. 19. When they reached the top of the highwall, Gabbard exited the truck. Tr. 19, 20-21. As
he walked around the truck, he noticed a faulty gauge on an air tank, located in the back. Tr. 19.
Commonly called an air baum, the tank was used to provide supplemental compressed air to
perform tasks such as filling tires or “blowing out a radiator.” Tr. 18. The tank was filled using
an air hose attached to a compressor. Tr. 28. A pop-off valve on the tank, if working properly,
would open and release air if the pressure reached a certain level of pounds per square inch (psi).
Tr. 38, 40.

Gabbard determined that the air gauge on the tank was broken because its lens was
missing and the face piece behind the needle, marked with graduations and used to read the air
pressure, was sitting abnormally. Tr. 19, 24-25; Ex. G-3. As a result, the needle, located on the
face piece, “was all the way past the highest pressure point lodged down close towards zero . . . .”
Tr. 19. Gabbard did not test the other components of the tank, such as the pop-off valve, but
Coats stated that the valve was working a few weeks before. Tr. 21, 52-53; Ex. G-18 at 3.

Respondent argued that the gauge on the air tank was in fact working properly, and
introduced a photograph that depicted the face piece correctly situated and the needle at the 40
psi mark. Tr. 14, 34, 35, 161; Ex. R-1. However, the photograph was taken by Coats after taking
the tank off of the property and it did not depict the condition of the gauge at the time that the
citation was issued. Tr. 48; Ex. R-1, G-3. Gabbard asserted that because the lens cover was
missing, a miner would be able to manipulate the face of the gauge and the needle, making it
non-functional and unreliable. Tr. 36-37, 38. In addition, Gabbard stated that Coats admitted the
gauge was not working in the close-out conference. Tr. 32, Ex. G-18 at 3.

The standard clearly states that air tanks must be equipped with gauges that accurately
measure the pressure within the tanks. The gauge’s lens was missing and the face piece was
disoriented and open to manipulation which prevented it from accurately measuring the pressure
in the tank. I find that Respondent violated section 56.13011.

Gravity and Negligence

Gabbard marked the likelihood of injury as unlikely because he believed the tank was
used infrequently, “about once every two months.” Tr. 26; Ex. G-1. Coats told Gabbard that he
would lend it to others for personal use and that he was not aware the air tank was on his truck.
Tr. 20. In addition, Gabbard did not know the air pressure in the tank. Tr. 38. One person, who
would have been filling the tank with air, was found to be affected. Tr. 23. Based on this
information, I find that Gabbard properly determined the likelihood of injury and number of
persons affected.

Gabbard conducted research into accidents involving pressurized vessels and found that
lack of maintenance led to injuries from flying metal debris, though, it is unknown how many of
the accidents occurred from over-pressurizing the vessel. Tr. 21, 22, 41-42. Gabbard asserted
that if the tank over-pressurized, it could have ruptured and spread shrapnel. Tr. 22. He
determined that the injury expected to occur was permanently disabling because the shrapnel
could have caused alterations to a miner’s tissue, muscle, or skin, resulting in a scar. Tr. 23;

Ex. G-1. Gabbard stated, “[MSHA] dictate[s] if you have, like I say, burns and it alters your
tissue, your muscle or your skin and it leaves a scar, that it is permanently disabling. A scar
counts as permanently disabling.” Tr. 23.

A direction by MSHA to find a scar from a cut or burn permanently disabling would be
inconsistent with the Secretary’s regulations, which define a permanently disabling injury as
“[a]ny injury or illness which would be likely to result in the total or partial loss of the use of any
member or function of the body.” 30 C.F.R. § 100.3, Table XII-Gravity: Severity. It is highly
improbable that a scar on a miner’s skin, caused by shrapnel, would result in total or partial loss
of a member or function of his body. However, shrapnel could sever a finger or nerve, or strike a
miner’s eye, causing a permanently disabling injury. I find that the violation was unlikely to
result in a permanently disabling injury.

Gabbard determined the level of negligence to be moderate because, while Coats was not
aware that the air tank was on his truck or how long it may have been there, it was his truck and
he should have known about the tank and its condition. Tr. 20, 27, 28. I find that Coats should
have known that the tank was in the back of his truck and that the gauge was not accurately
measuring pressure. Therefore, a determination of moderate negligence was appropriate.

Citation No. 8640967

Citation No. 8640967 was issued by Gabbard at 11:41 a.m. on May 8, 2012, pursuant to
section 104(a) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.4101 which requires that
“[r]eadily visible signs prohibiting smoking and open flames shall be posted where a fire or
explosion hazard exists.” The violation was described in the “Condition and Practice” section of
the citation as follows: 

A readily visible warning sign prohibiting smoking or open flames was not posted
at the oil retrieval system. Approximately 50 gallons of oil was stored in a tank
behind the fuel storage building where filters are drained to collect the used oil.
In the event this oil became ignited, it would expose workers in the area to the
hazard of oil fires. This area is used only for infrequent maintenance work. Burn
injury can occur when encountering oil fires. 

Ex. G-9. 

Gabbard determined that the violation was unlikely to cause a permanently disabling
injury, that one person was affected, and that the operator’s negligence was moderate. A civil
penalty in the amount of $392.00 was assessed for the violation.

The Violation

Hanson has a “fuel lube” building on-site where different types of oil and lubricants,
including diesel, motor oil, and hydraulic oil are stored. Tr. 55, 65. In the back of the building,
there was an oil storage tank, used for the disposal of oil, a canister, and a catch drum used when
performing preventative maintenance. Tr. 57, 64, 65. Gabbard observed that the catch drum was
open and contained approximately 8 gallons of used motor oil. Tr. 57; Ex. G-7. A pile of leaves
measuring about 10-12 inches tall was located at the base of the building and surrounded the
canister, creating what Gabbard believed to be a fire hazard. Tr. 56, 57, 66; Ex. G-7. Gabbard
stated that there was “no readily visible sign at all indicating a fire hazard, no smoking or open
flames.” Tr. 55; Ex. R-3.

The building was marked with three obvious fire hazard signs: one on the front of the
building and one on either side. Tr. 57, 62-63, 78; Ex. R-2A-C. Gabbard posited that most
access to the building would be from the front, where the sign measured approximately 8.5-10
inches x 11-12 inches. Tr. 57, 60; Ex. R-3. There were also signs inside the building. Tr. 100.
Gabbard did not remember seeing any sign located on the back of the building or any evidence
that there had once been a sign present. Tr. 58. The back of the building was approachable from
either side. Tr. 59. While a miner would pass a sign on his way from the front of the building to
the rear, a sign would not be in view once he reached the back. Tr. 61, 74, 80-81, 84, 86, 97,
100; Ex. R-2B. In addition, Gabbard stated that at the closeout conference, Coats “agreed with
the citation, the condition did exist.” Tr. 72.

The pile of dry leaves around the open catch drum of oil did pose a fire hazard in the back
of the building as Gabbard concluded. While a miner would have passed one or more signs on
his way to the back of the building, there was no “readily visible” sign where the fire hazard
existed. I find that Respondent violated section 56.4101.

Gravity and Negligence

Gabbard designated the likelihood of injury as unlikely because there were other signs
posted in and around the building, and there were no ignition sources present in the area. Tr. 64,

70. In addition, the one miner affected experienced minimal exposure because preventative
    maintenance was not conducted every day. Tr. 70. I find that Gabbard correctly determined an
    injury was unlikely to occur and one person was affected.

Gabbard marked the injury expected to occur as permanently disabling because a fire
could have caused burns, resulting in flesh and tissue alterations, i.e., scars. Tr. 68. However,
Gabbard stated that it was very unlikely that the motor oil would explode if a fire started. Tr. 87.
The oil tank lid was closed, there were fire extinguishers on-site, and miners were trained on the
hazards of oil and fuel and to “[m]ostly retreat from fires” unless they were very small. Tr. 74,
96, 97, 99; Ex. G-12.

As stated above, it is highly improbable that a scar would result in total or partial loss of a
member or function of a miner’s body. Given that an explosion was highly unlikely, fire
extinguishers were nearby, and miners were trained to retreat from fires, I find that, at most, a
miner would have suffered minor burns resulting in lost workdays or restricted duty.

Gabbard assessed the level of negligence as moderate because the back of the building
was somewhat secluded and not frequently accessed by employees. Tr. 70-71. While pre-shift
and on-shift examinations were required for the building, Gabbard did not look at those records.
Tr. 66. However, based on the testimony given, the open oil container and leaves at the rear of
the building posed a fire hazard and there was no sign at that location. Respondent should have
known about the violative condition. Therefore, I find that the level of negligence was properly
marked as moderate. 

Citation No. 8640968

Citation No. 8640968 was issued by Gabbard at 9:00 a.m. on May 9, 2012, pursuant to
section 104(a) of the Mine Act. It alleges a violation of 30 C.F.R. § 56.14100(c) which requires
that “[w]hen defects make continued operation hazardous to persons, the defective items
including self-propelled mobile equipment shall be taken out of service and placed in a
designated area posted for that purpose . . . to prohibit further use until the defects are corrected.”
The violation was described in the “Condition and Practice” section of the citation as follows:

The ladder steps accessing the operator’s station of the #98107 haul truck were
broken at the contact anchor points in two places. This defective condition
exposed persons using the ladder steps to hazards of falling in event the ladder
broke free of the truck. The truck had been used today and the operator had just
exited the truck via this route. Falls can result in injury when faulty ladders are
used. The truck was removed from service and repairs were immediately
conducted. 

Ex. G-13. 

Gabbard determined that the violation was reasonably likely to cause lost workdays or
restricted duty, that one person was affected, and that the operator’s negligence was moderate.

A civil penalty in the amount of $1,304.00 was assessed for the violation.

The Violation

During Gabbard’s inspection of Hanson’s #98107 A25 Volvo Haul Truck, he climbed a
set of steps used to access the cab. Tr. 107, 108, 132. When he reached a height of about 3 feet,
he felt the steps unnaturally sag several inches. Tr. 107, 108, 110, 153. Gabbard immediately
withdrew from the steps and examined them. Tr. 153.

The steps consisted of one floating, i.e., freely swinging, step on the bottom and three
rigid steps above.

Tr. 105. The rigid steps were one unit, welded to a rectangular metal frame.
Tr. 133; Ex. G-15, R-6. The frame was bolted to the fender of the truck. Tr. 109, 110, 136, 152;
Ex. G-15. There was also a bolt through the side of the top step, that connected the step
assembly to the upper frame of the truck. Tr. 122, 133, 134; Ex. G-15B. Gabbard was unsure if
all of the bolts provided structural support. Tr. 122. The weld in the upper right corner of the
framework where the top step was attached was fractured. Tr. 137-38; Ex. G-15A. There was
also a fractured weld where the second step from the top had been connected to a piece of angle
iron that was attached to the truck’s lower frame.

Tr. 106, 140-41; Ex. G-15. Based on his
observations, Gabbard concluded that the steps had previously been loose and had been repaired
with low-quality welds. Tr. 106, 113; Ex. G-15A.

The steps were the only means of access to the cab of the truck and the truck was in use at
the time of the inspection. Tr. 108, 109, 142. While Gabbard agreed that the framework being
attached to the fender could have accounted “for some true give[,]” there was excessive
movement of the steps because of the fractures in the welds. Tr. 135, 147, 152. He maintained
that the framework could have broken loose because it was not mounted to the truck in a way
that would safely support his or the operator’s weight, creating a hazardous condition for the
operator climbing the steps. Tr. 107, 117, 129, 147, 149. Gabbard stated that he discussed the
citation during the close-out conference and Coats agreed with it. Tr. 117.

Respondent argued in its prehearing report that the broken weld between the second step
and the angle iron attached to the truck’s lower frame was not a defect. Coats asserted that the
angle iron attachment was not per the manufacturers standards, citing to the depiction from the
parts catalogue discussed above as well as a photograph of an allegedly identical haul truck
Respondent had on-site that did not have an angle iron bracket. Tr. 124-25, 132-33, 135; Ex. R-5, 6. He stated that the bracket would have been added because “[t]he steps were a little
loose. It would have been a lot better if you added a bracket onto it . . . to keep it from breaking
off.” Tr. 135. Gabbard did not look at the specifications for the haul truck and could not confirm
that Respondent’s picture of the “identical” truck was in fact the same model. Tr. 127, 128.

Based on the above testimony by Coats, I find that the angle iron bracket was previously
connected to the second rigid step for the safety purpose of preventing excessive movement of
the steps, or to keep them from breaking off the truck. It is the operator’s responsibility to
maintain the truck in a safe manner while it is in use. Tr. 142-43. The angle iron bracket’s
detachment from the step and the fracture in the weld of the main step framework constituted a
defect, excessive movement and instability of the steps, creating a hazardous condition for the
operator. I find that Respondent violated section 56.14100(c).

Significant and Substantial

The Commission reviewed and reaffirmed the familiar Mathies

framework for
determining whether a violation is S&S in Cumberland Coal Res., 33 FMSHRC 2357, 2363-65
(Oct. 2011):

The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. §
814(d), and refers to more serious violations. A violation is S&S 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. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In
Mathies, 6 FMSHRC 1, the Commission further explained:

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 contribu ted to will result in an injury;
and (4) a reasonable likelihood that the injury in question will be of
a reasonably serious nature.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133,
135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable
likelihood of injury should be made assuming continued normal mining
operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The
Commission has emphasized that it is the contribution of a violation to the cause
and effect of a hazard that must be significant and substantial. U.S. Steel Mining
Co., 6 FMSHRC 1834, 1836 (Aug. 1984).

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. . . .

The Commission recently discussed the third element of the Mathies test
in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81
(Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine
map). The Commission held that the “test under the third element is whether
there is a reasonable likelihood that the hazard contributed to by the violation, i.e.,
[in that case] the danger of breakthrough and resulting inundation, will cause
injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove a
reasonable likelihood that the violation itself will cause injury.” Id. The
Commission also emphasized the well-established precedent that “the absence of
an injury-producing event when a cited practice has occurred does not preclude a
determination of S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec.
2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).

The fact of the violation has been established. It contributed to a discrete hazard,
a detached angle iron bracket and fractures on the truck steps that allowed for excessive
movement, potentially resulting in a miner falling. Whether the violation was S&S turns
on whether the hazard was reasonably likely to result in an injury causing event and
whether it was reasonably likely that an injury would be of a reasonably serious nature.

Gabbard determined that an injury was reasonably likely because of the operator’s
repetitive exposure to the hazard. Tr. 117, 121. The haul truck was used on a daily basis
and the operator would exit and enter the cab, walking up and down the steps, multiple
times a day. Tr. 104-05, 108-09, 117. Gabbard concluded that the injury would have
been serious and could have reasonably been expected to result in lost workdays or
restricted duty from a broken or sprained ankle, torn ligament, or injury to the back
caused by falling off the steps. Tr. 117; Ex. G-13. He also took into consideration the
weight of operator, i.e., the person who would have been affected, when assessing the
type of injuries. Tr. 117, 118, 119.

Given the high exposure of the operator to the hazardous steps and the amount of
movement, I find that Gabbard correctly determined that injury was reasonably likely to
occur. The injuries that Gabbard described were reasonable considering the height of the
fall and the size of the operator. Any of those injuries could have caused the operator to
be out of work for several days and would have been reasonably serious in nature.
Therefore, I find that the violative condition was significant and substantial. 

Negligence

Gabbard marked the level of negligence as moderate. Ex. G-13. He stated that
the truck operator noticed the steps sagging but did not report it for maintenance. Tr. 115.
Gabbard did not verify the operator’s statement by checking the pre-shift examination
books, but the vehicle did require a pre-shift and on-shift examination. Tr. 116. He also
based his decision on the fact that the broken weld on the angle iron bracket was polished
from the vibration of the truck, indicating that the condition had existed “multiple shifts.”
Id. Further, Gabbard believed that the weld fractures were obvious when the area was
examined closely. Tr. 111.

While it is uncertain whether the truck operator reported the condition, pre-shift
and on-shift examinations of the truck were required and the condition had likely existed
for multiple shifts. I find that Respondent should have been aware of the violative
condition and that a finding of moderate negligence is appropriate. 

The Appropriate Civil Penalties

As the Commission recently reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763 (Aug. 2012):

Section 110(i) of the Mine Act grants the Commission the authority to
assess all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further
directs that the Commission, in determining penalty amounts, shall consider:

the operator's history of previous violations, the appropriateness of
such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's
ability to continue in business, the gravity of the violation, and 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).

Under this clear statutory language, the Commission alone is responsible
for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at
1151-52 (“[N]either the ALJ nor the Commission is bound by the Secretary’s
proposed penalties . . . we find no basis upon which to conclude that [MSHA’s
Part 100 penalty regulations] also govern the Commission.”). While there is no
presumption of validity given to the Secretary’s proposed assessments, we have
repeatedly held that substantial deviations from the Secretary’s proposed
assessments must be adequately explained using the section 110(i) criteria. E.g.,
Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge need
not make exhaustive findings but must provide an adequate explanation of how
the findings contributed to his or her penalty assessments. Cantera Green, 22
FMSHRC at 622. In addition to considering the statutory criteria, the judge must
also set forth a discernible path that allows the Commission to perform its review
function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006).

Good Faith - Operator Size - Ability to Continue in Business

The parties did not stipulate that Hanson demonstrated good faith in abating the
violations, but based on the facts above, I find that it did. It was stipulated that paying the
proposed penalties would not affect Hanson’s ability to remain in business. Stipulations. The
parties did not stipulate to the size of Hanson as an operator. However, the form reflecting
calculations of penalty assessments, filed with the petition, indicates that Hanson is a small
operator, and I so find. Overall, these factors are slightly mitigating.

History of Violations

Hanson’s history of violations is reflected in a report generated from MSHA’s database,
the “R-17.” Ex. G-19. The report lists violations issued at the Upton Quarry mine and reflects
that 13 violations became final between February 8, 2011 and May 7, 2012. I accept the figures
reflected in the report as accurate. However, the overall violation history set forth in the exhibit
is deficient in that it provides no qualitative assessment, i.e., whether the number of violations is
high, moderate or low. See Cantera Green, 22 FMSHRC at 623-24.

Some qualitative violations’ history information can be found on the forms reflecting
calculations of the proposed assessments. The Secretary’s Part 100 regulations for regular
penalty assessments take into account two aspects of an operator’s violation history, the “total
number of violations and the number of repeat violations of the same citable provision of a
standard in a preceding 15-month period.” 30 C.F.R. § 100.3(c). Only violations that have
become final are used in the calculations. For total violation history, points used in the penalty
calculation are assigned on the basis of the number of violations per inspection day, ranging from
0 points for 0 to 0.3 violations per day to 25 points for in excess of 2.1 violations per day. The
assessment forms for the three litigated violations reflect an assessment of 25 points for overall
violation history and 0 points for repeat violations. However, the penalty point calculation for
overall violation history, in this case, is skewed. First, because the mine is small, the number of
inspection days is low,

allowing even a small number of violations to total in excess of 2.1
violations per day. Second, the regulations provide that “[p]enalty points are not assigned for
mines with fewer than 10 violations in the specified history period.” 30 C.F.R. § 100.3(c)(1). In
this case, three section 104(a) citations caused the number of penalty points assigned for
violation history to drastically increase from 0 to 25 points. Accordingly, I reject the implication
that Hanson has a high violations history and find that Hanson’s overall history of violations, as
relevant to these violations, was moderate, and should be considered a neutral factor in the
penalty assessment process.

Citation No. 8640965 is affirmed. A civil penalty in the amount of $392.00 was proposed
for this violation. Considering the factors itemized in section 110(i) of the Act, I impose a
penalty of $200.00 for this violation.

Citation No. 8640967 is affirmed as a violation. However, the injury that would have
been reasonably expected to occur was lost workdays or restricted duty. A civil penalty in the
amount of $392.00 was proposed for this violation. Considering the factors itemized in section
110(i) of the Act, I impose a penalty of $125.00 for this violation.

Citation No. 8640968 is affirmed as a violation. A civil penalty in the amount of
$1,304.00 was proposed for this violation. Considering the factors itemized in section 110(i) of
the Act, I impose a penalty of $600.00 for this violation.

The penalties imposed above, totaling $925.00, are lower than the $2,088.00 in penalties
assessed for the violations for which Hanson was found liable. The reductions are the result of
findings of lesser gravity and a determination that the penalty point numbers for overall violation
history were excessive.

SETTLEMENT

The Respondent withdrew its contest of Citation No. 8640966. Accordingly, it will be
ordered to pay the assessed penalty of $392.00 for the violation.

ORDER

Based on the foregoing, it is ORDERED that Citation Nos. 8640965 and 8640968 are
AFFIRMED, and that Citation No. 8640967 is AFFIRMED, as amended.

It is FURTHER ORDERED that the operator pay total penalties of $1,317.00 within 45
days of this decision.

/s/ Michael E. Zielinski

Michael E. Zielinski

Senior Administrative Law Judge 

Distribution (Certified Mail):

Ryan L. Pardue, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite
800, Denver, CO 80202

Charles M. Sellards, Area Safety Manager, Hanson Aggregates Midwest, LLC, 1645 Tyrone
Road, Lawrenceburg, KY 40342