Secretary of Labor v. Hanson Aggregates Midwest, LLC

Plain-English summary

An MSHA inspector found a large loose boulder about 40 feet above a travel route at Hanson Aggregates' limestone quarry. Judge Kenneth R. Andrews held that the operator violated 30 C.F.R. § 56.3200 because the boulder created a crushing hazard, work-related travel occurred below it, and the area lacked the required warning sign even though access had been barricaded. He found an injury unlikely but potentially fatal to one person. Because the boulder was difficult to see, recent rain may have loosened it, the bench had been inactive and barricaded, and material at the highwall base caught it during scaling, he reduced negligence from moderate to low. The proposed $127 penalty was reduced to $100.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.3200
• Outcome: The violation was affirmed, negligence was reduced from moderate to low, and a $100 penalty was assessed.
• Key point: Barricading an inactive bench does not excuse loose ground when work-related travel resumes and the affected area lacks the required warning.

Full text (FMSHRC public release)

FEDERAL MINE
SAFETY AND HEALTH REVIEW COMMISSION

OFFICE
OF ADMINISTRATIVE LAW JUDGES

7
PARKWAY CENTER, SUITE 290

875
GREENTREE ROAD

PITTSBURGH,
PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

SECRETARY OF LABOR,

MINE SAFETY AND
HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

HANSON AGGREGATES
MIDWEST, LLC,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. KENT 2013-931-M

A.C. No. 15-12905-324282

Mine: Laurel Quarry

DECISION
AND ORDER

Before:                 
 Judge Andrews

Appearances:   Emily
O. Roberts, Esq., Office of the Solicitor, U.S. Department of Labor,

Nashville,
TN, Representing the Secretary of Labor

Margaret S.
Lopez, Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,

Washington,
D.C., Representing Respondent

STATEMENT OF THE CASE

This case is before the undersigned Administrative
Law Judge on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor against Respondent, Hanson Aggregates Midwest, LLC (“Hanson Aggregates”
or “Respondent”) pursuant to Section 104(a) of the Federal Mine Safety and
Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). Citation No. 8724144 was issued
on December 5, 2012, with an assessed penalty of $127.00. A hearing was held in
Middlesboro, Kentucky on July 17, 2014, at which the parties presented
testimony and documentary evidence. After the hearing, Post Hearing Briefs and
Respondent’s Reply Brief were submitted and have been fully considered.

ISSUES

The issues to be determined are whether the citation
was validly issued; whether the violation was the result of the operator’s moderate
negligence; and whether and in what amount the assessment of a civil penalty
against the operator is appropriate.

JOINT STIPULATIONS

The parties agreed to the following stipulations,
submitted and marked as Government Exhibit 1 at the hearing:

1.      Hanson
Aggregates Midwest, LLC, owns and operates Laurel Quarry, I.D. No. 15-12905, a
limestone surface mine, which is located in Pulaski County, Kentucky;

2.      Laurel
Quarry is a “mine” as that term is defined in Section 3(h) of the Mine Act. 30
U.S.C § 803;

3.      Respondent
is subject to the Federal Mine Safety and Health Act of 1977;

4.      Respondent
is subject to the jurisdiction of the Federal Mine Safety and Health Review
Commission, and the presiding Administrative Law Judge has the authority to
hear this case and issue a decision;

5.      At
all times relevant to these proceedings, Laurel Quarry had an effect on
interstate commerce within the meaning and scope of Section 4 of the Mine Act,
30 U.S.C. § 803;

6.      Laurel
Quarry is small, with 37,584 hours worked in 2012;

7.      Copies
of the citation in contest in this case are authentic and a copy was served on
the Respondent by an Authorized Representative of the Secretary employed by the
Mine Safety and Health Administration;

8.      The
Respondent timely contested the violation;

9.      MSHA’s
Proposed Assessment Data Sheet and “Exhibit A­—Docket Number KENT 2013-931M”
accurately set forth (a) the number of assessed penalty violations charged to
Respondent for the period stated and (b) the number of inspection days per
month for the period stated;

10.  The
penalty proposed will not affect the Respondent’s ability to continue in
business;

11.  The
Respondent abated the citation timely and in good faith.

EVIDENCE

Testimony of Donald
Michael Gabbard

Donald Michael Gabbard (“Gabbard”) is a mine
inspector with the Department of Labor, Mine Safety and Health Division. He has
both a four-year degree in education and a two-year degree in mining from
Morehead State University. (Tr. 14)[1].
Gabbard attended the Mine Academy where he was trained to be an authorized representative
of the Secretary of Labor in 2009. (Tr. 14). He has been employed with MSHA as
either a mine inspector or trainee for approximately six years. (Tr. 14). Before
working for MSHA, Gabbard worked on a surface coal mine for approximately six months
and at an underground limestone mine for close to 28 years. (Tr. 15, 84). While
at the limestone mine, Gabbard worked as a surveyor, a fill-in supervisor, and
performed scaling operations. (Tr. 15). He held a blasting license for
approximately 28 years. (Tr. 15). His experience includes roof control operator,
running a bench and a face drill, maintenance, and production. In total, he has
worked for approximately 35 years in the mining industry, including his time
with MSHA. (Tr. 15-16).

On December 5, 2012, Gabbard inspected Laurel
Quarry, which is an open pit quarry that produces limestone. (Tr. 16-17). During
his inspection, Gabbard issued a citation for loose ground, which consisted of
a large boulder that he estimated to be approximately 5ft x 5ft x 3ft perched
on a 40 foot highwall. (Tr. 17-18, 23). The citation was for a violation of
standard 56.3200, which requires loose ground to be taken down or supported
before work or travel is permitted in any area that could be affected by it. (Tr.
19). The standard also requires a warning or barricade to be in place until the
loose ground condition is corrected. (Tr. 19).

Gabbard testified that the condition cited had been
driven past while he and Respondent’s Agent James Kirby (“Kirby”) were on the
bench road to inspect an excavator. (Tr. 19–20). The bench had been barricaded
off with a berm that had to be moved in order for them to gain access to check
the excavator. (Tr. 20-21, 115-117). He did not see the loose boulder as they
drove by, due to the curvature of the road that goes around to the active
bench. (Tr. 20). However, when they were on their way back from the excavator
inspection, Gabbard explained that he could see the large boulder with air
coming through the cracks around and behind it. (Tr. 20). He discussed the
boulder with Kirby, who was adamant that he had not seen it before. (Tr. 21). They
also discussed the need to have the boulder taken down since daylight could be
seen around it. (Tr. 21). Gabbard could not recall whether Kirby agreed the
boulder needed to be taken down, but testified Kirby understood it would have
to be tested. (Tr. 21).

Gabbard explained that if the berm at the base of
the wall had been properly constructed to 25 percent of the height of the wall
away from the base of the wall, he would have found the boulder’s condition to
be safe even though it was loose. (Tr. 21-22). He testified that the berm was
nowhere near the required 25 percent, and part of it was totally missing and
banked up against the face of the highwall above it. (Tr. 22). Gabbard
explained that this would make a ramp, which could cause the boulder to speed
up and possibly cross the bench or fall into the work area over 100 feet below.
(Tr. 22). He estimated that the rock on the highwall was about 40 feet high from
the bench. (Tr. 22, 25). Gabbard further explained that he knew the boulder was
loose because it was setting(sic) loose independently and he could see air or
daylight behind the fractures on the side of the rock. (Tr. 23). Given the
approximate size of the boulder, he estimated it weighed around 11,000 pounds.
(Tr. 24, 111). Gabbard believed the condition of the loose boulder was “absolutely,
100 percent” a hazard, and if it if had come down it could have crushed people
using the roadway below causing fatalities. (Tr. 25, 87).

Gabbard stated that the road below the boulder was
relatively narrow and there was a berm on the outside of the roadway to prevent
falling over the bench to the lower work level. (Tr. 25). On the highwall side
of the roadway, there was a partial berm in place, but some sections were nowhere
near the required distance of 10 feet away from the base of the highwall. The
back of the berm almost touched the highwall. (Tr. 26). Gabbard did not measure
the width of the road; however he estimated that it was approximately 17 feet
wide. (Tr. 112). According to Gabbard, the area affected by the loose material
would definitely include the travel route to the bench and possibly even the
workstation below because the bench was so narrow. (Tr. 26).

Gabbard opined that the condition had existed for a
minimum of several weeks depending on when the bench had last been blasted or the
last time there were severe rains. (Tr. 29). He could tell there had recently
been rain because the bench was very muddy. (Tr. 29). The bench was in
existence when Gabbard previously inspected the mine several months prior. (Tr.
30). He also testified that this particular bench was exposed to scaling
materials, drills, loaders, and supervisor’s trucks as well as foot traffic
from blasters. (Tr. 31). He believed that if the excavator was located on the
bench and it had been used, then it was an active machine that would have been
on the bench during the time the loose condition existed. (Tr. 32). Gabbard only
saw the miner who accompanied him on the inspection in the affected area, but testified
that the area was active because it contained a running machine that had been
operated. (Tr. 32).

After spotting the condition, Gabbard stated that
for about 40 minutes he and Kirby discussed getting the scaler off the bench and
not exposing any miners to the loose condition. (Tr. 33). He testified that it
was correct that he and Kirby were together at the time of the scaling. (Tr.
200). From where they were standing, he could not see where the boulder fell or
any pieces of rock that might have fallen with it. (Tr. 200). Gabbard testified
that the scaled material landed in the end of the berm that was right at the
base of the highwall. (Tr. 35-36, 87). He testified the boulder did not clear
the berm and that Kirby responded to this by saying, “it didn’t clear the berm;
it’s not a violation.” (Tr. 36). Gabbard believed it was still a violation but
was influenced to lower it from Significant and Substantial (“S&S”) to
non-S&S. (Tr. 36).

Gabbard explained that it was still a violation
because it could have cleared the inadequate berm had it bounced even the least
bit to the west. (Tr. 37). Gabbard stated that based on his experience as a
miner and as an inspector, it would not be possible to predict exactly how a
loose boulder or loose material would fall. (Tr. 133). Gabbard suggested that
if the boulder had fallen 10 separate times, it would not have fallen and
landed the same way each time depending on what it hit, how much loose it
knocked off, and what corner struck the wall. (Tr. 110). He believed they were
very fortunate the pile of muck located right up against the face of the highwall
was so soft and that the boulder went into this soft material. (Tr. 37). He
testified that when the boulder fell into the leftover muck material, it sucked
it in like “dropping a rock in the mud.” (Tr. 37). He also stated that approximately
10 rocks did clear the berm and did come into the roadway although this was not
in the citation. (Tr. 38, 87-88, 90). And, in reference to the large boulder at
issue, he stated that it could have “absolutely” fallen in a different way,
depending on its trajectory and how it struck the wall. (Tr. 39). Had the rock
not been scaled, Gabbard testified that “something very ugly could have happened,”
with a potentially fatal accident due to vehicles and foot traffic on the bench.
(Tr. 40-41).

Gabbard would have expected only one miner to have
been affected by the situation, as there would usually only be one person going
past the dangerous situation at a time whether it was a driller, supervisor, or
mechanic. (Tr. 41-42, 122). He stated there was no warning sign posted indicating
loose. (Tr. 42-43). There was, however, a barrier of muck in place at the bench
entry. (Tr. 42).

Gabbard designated the citation as moderate
negligence because the loose boulder was not highly obvious from one direction
and could be overlooked. (GX-3, Tr. 44-45).[2]
He explained that he was not able to observe the boulder until he was on his
way out of the bench. (Tr. 45). Gabbard found this to be a mitigating
circumstance, which prevented a finding of high negligence. (Tr. 45). He also
stated that Kirby was adamant that he was unaware of the loose boulder and Gabbard
believed him. (Tr. 45).

Gabbard is required to take notes during an
inspection and he takes such notes from the time that he steps out of his
vehicle until the time that he gets back in. (Tr. 45). These notes then become
part of the report that he turns into his field office supervisor.[3] (Tr. 45). Gabbard
took field notes during his inspection of Laurel Quarry in December 2012. (Tr.
46.) His notes contain in pertinent part:

Loose ground
conditions were above the roadway to the upper . . . ABC bench. Access to this roadway
had been bermed off but was opened so the equipment on the bench could be
inspected. The workers’ pickup and the supervisor’s pickup both travel past the
loose, which was hard to see from the entry view. Upon exiting the bench, this
AR spotted and pointed out loose ground overhanging the roadway. The rock was
approximately five foot by five foot by three foot cubed and was cracked loose
to where open sky . . . could be seen behind the loose in one section. . . . The
area was barricaded immediately. The excavator operator moved the berm with a dozer
and drove a pickup past the loose. . . . When scaled, the loose was caught by
the berm. The boulder did scale easily but did not clear the berm and enter the
roadway.

(Tr.
48-49, GX-4).

His notes further indicated (1) that he had marked
injury or illness as reasonably likely, but after further discussion he changed
his marking to unlikely, (2) that the inspection party had travelled past the
loose – this being the exposure, and that if left in this condition, it would
be traveled past again, (3) the injury would be fatal by a crushing injury from
a falling boulder, (4) the number of persons affected would be one – the next
person in the area, and (5) the negligence was moderate due to the lack of
visibility when approaching the bench, recent rains could have loosened
material around the boulder, and the agent was adamant he was unaware of the
condition. (Tr. 49-50; GX-3, 4)

Gabbard testified regarding details from the Regular
Inspection Information form, which is an official U.S. Department of Labor,
Mine Safety and Health Administration document. (GX-6). In the document
citation number 8724144 was considered a non S&S violation because the
boulder did not cross the protective berm when it was scaled and only smaller
pieces entered the roadway. (Tr. 55). Gabbard explained that he referenced the
protective berm in the citation because the berm was supposed to be 10 feet
away from the base of the highwall, but in this case it was only four or five
feet away. (Tr. 55-56). He stated the boulder ended up falling into the berm, but
smaller rocks did enter the roadway. (Tr. 56). He only mentioned these rocks in
his typed closeout notes. (Tr. 100).

Gabbard took photos of both the violation and its
abatement. (Tr. 56). These photographs comprised Government Exhibit 7, A-J.
(Tr. 57.). During Gabbard’s testimony, he gave a description of and explained
what was portrayed in each photo. GX-7A was described as a picture of the
boulder at issue. It showed how the sky could be seen on the left side where
there was a crack, and how it appeared that nearly 70 percent of the boulder was
not supported. (Tr. 58, GX-7A). GX-7B captured the boulder’s profile where a
crack could be seen with air going through it. (Tr. 58; GX-7B). GX-7C displayed
a profile picture of the wall itself and other rocks that were protruding from
it, which could have potentially affected the trajectory of the boulder when it
was taken down. Gabbard explained that this particular photograph was also
taken to show the road condition, the loose material, and to give perspective
on the distance because it was deceiving. (Tr. 59-60). After examining GX-7C
and RX-5, Gabbard explained that the berm ended before the end of the highwall
and part of the slope shown in the photographs had to be treated as a highwall
because it was so significant, and there was no berm at that point. (Tr. 202). Gabbard
testified that the boulder came down pretty much right at the junction where
the berm ended and the muck material began. (Tr. 204). Gabbard stated that
there was no distance between the boulder and the face of the highwall and that
nowhere in GX-15 could you see a definitive berm pulled out from the face at
least 10 feet. (Tr. 205).

Gabbard testified that GX-7D was basically the same
photograph as GX-7C except that it showed muck material at the bottom of the
wall. (Tr. 63). Gabbard stated that on this side of the wall there was no berm
whatsoever, only the muck pile, which could have caused any material that fell
to gain speed. (Tr. 63).

He stated GX-7E was taken from the intake side to
show that not only was the bottom of the boulder not connected to the wall, but
also that there was a crack on the boulder’s right side which extended back to
where the boulder was not connected on the right side. (Tr. 64).

Gabbard testified that GX-7F depicted the boulder
near the left of the picture and how the berm was nearly non-existent below the
wall. (Tr. 65). He stated that most of the material near the base of the wall
was primarily muck which could help the rock speed up, and in the far low right
corner of the picture you could see where the berm began. (Tr. 65)

He said GX-7G showed the highwall after the boulder
had been removed. (Tr. 66). Gabbard described GX-7H as a picture of the boulder
after it was scaled from the highwall. (Tr. 67). He explained that the boulder
landed approximately four to six feet away from the wall and that only half of
it could be seen as the rest was buried in the soft muck. (Tr. 67).

Gabbard described GX-7I as an additional picture of
the boulder where it landed in the loose material. (Tr. 68). Finally, he
testified about GX-7J and explained that this photo was taken to show how there
was not a proper berm in place and that additional rocks did fall into the
roadway after the boulder was scaled. (Tr. 68) Red circles were drawn around
the rocks in GX-15 since he did not have anything in writing describing which
rocks had fallen in the road. (Tr. 102-103). Gabbard knew these rocks cleared
the berm because they were fresh and not the same texture or color, and were
drier, making it fairly obvious they came off the highwall with the boulder.
(Tr. 69, 102-103). This exhibit showed all the pieces as they were right after
the boulder was scaled, except for one rock that had been moved out of the
roadway. (Tr. 69, 107).

Gabbard testified that “the citation would not have
been issued if the berm had been the proper distance back and the proper height
up in order to prevent the boulder from clearing the berm.” (Tr. 71-72). To be
considered an adequate barrier, the berm would have to have been the required
25 percent from the wall to where it began. (Tr. 72). Estimating the highwall
at approximately 40 feet would require the beginning of the berm to be at least
10 feet from the base of the wall. (Tr. 72). Gabbard explained that there was
not enough room on the bench to create an adequate berm because the road was so
narrow. (Tr. 73). MSHA provides an online handbook as well as policies on CD
that can be referenced for guidance on how to properly build berms, and they
are updated frequently. (Tr. 73–74).

The Haul Road Inspection Handbook provides guidance
on how to use berms to protect miners from rock falls. (Tr. 76). Gabbard read
from page 3 to explain how as a rule of thumb, “a barricade should be placed a
distance out from the wall of either 15 feet, or one-fourth of the wall height,
whichever value is greater.” (Tr. 76). The handbook also provides that the
height of the barricade should be at least four feet; and where the highwall
height exceeds 60 feet, barricades should be at least six feet high. (Tr. 76; GX-8).
Gabbard testified that the protective berm was not four feet high in all places;
in some instances the muck was more than four feet high, but there was not a
constructive berm that was more than four feet high. (Tr. 76). He explained
that in order for the berm to have met the 25 percent requirement, it should
have been a minimum of 10 feet from the base of the wall to where the back side
of the berm begins. (Tr. 77). According to Gabbard, the berm on the highwall
side and below the loose ground conditions did not resemble these minimum
dimensions at all. (Tr. 77). Gabbard further testified that he also uses the
Highwall and Pit Enforcement Guidance document dated April 21, 2010, for
guidance on how to use berms to protect from rock falls. (Tr. 79; GX-9). This
document reduced to writing MSHA’s policy that a protective berm should be out
from the base of the highwall a distance of 25 percent of the height of the highwall.
(Tr. 79).

Testimony of James
Ollie Kirby

James Ollie Kirby is a plant manager for Lehigh
Hanson, which includes Hanson Aggregates Midwest. (Tr. 138). He is the plant
manager at Laurel Quarry in Somerset, Pulaski County, Kentucky where he is
responsible for communicating with his employees, safety, and ensuring the
plant operation runs okay. (Tr. 138). He sometimes operates machinery himself
and supervises a total of 16 employees. (Tr. 138-39). Kirby has been with
Hanson Aggregates for 39 years. (Tr. 139). He has worked in the mining industry
since 1997 and was in the construction business for the remainder of the time. (Tr.
139-40). In addition to working as a plant manager, Kirby also worked as a
maintenance mechanic and an equipment operator. (Tr. 140). Most of his
experience has been with surface mining. (Tr. 140).

Kirby was familiar with the highwall that was cited
in this case, and he accompanied the Inspector during the inspection. (Tr.
140-41). Laurel Quarry is a surface mine that mines limestone aggregate. (Tr.
141). Production generally begins by removing the overburden to get to the
rock, which is then drilled and blasted. (Tr. 141) Laurel Quarry has multiple highwalls,
some are active and others are inactive. (Tr. 141-42). Kirby testified that
there is a safety program at the mine including weekly toolbox meetings, annual
safety audits, emails on safety concerns, and MSHA fatality alerts. (Tr. 142).

Kirby testified that when at the mine he examines
the active highwalls every day to ensure that they are safe, meaning no loose
rock material and adequate berms. (Tr. 143). If Kirby
is unavailable, other employees are trained in highwall safety and will sometimes
help with the examinations. (Tr. 143-144). Kirby reviews all workplace
examinations after they are conducted and if conditions needing correction are
found, they are corrected. (Tr. 144).

Kirby described the highwall at issue, which was
located on the north side of the pit. (Tr. 145). He said it was the highest
wall at the mine. The AT bench was located right in front of the wall. (Tr.
145). There was also a wall on the bench below, the ABC bench. Kirby explained
the layout -- first you have the overburden, then the AT bench, and then the
ABC bench below the AT. (Tr. 146). The boulder at issue was on the highwall above
the AT bench. (Tr. 146).

Kirby testified that he had recently measured the
distance between the berm and the wall in the area where the boulder was
located. (Tr. 146). He said that the berm and the wall had been untouched since
the time of the inspection. (Tr. 147). Kirby measured a distance of 15 feet
from the inside of the berm to the base of the wall and 18 feet from the center
of the berm to the base of the wall. (Tr. 147). He estimated that the wall was
anywhere was from 35-40 feet tall. (Tr. 147). With that estimation, the
measurements he took would be approximately 30 percent of the height of the
wall, which was more than the required 25 percent. (Tr. 147). Kirby also
measured the width of the roadbed from the inside edge of the base of both
berms and found it to be 25 feet wide. (Tr. 148-49). He testified that the road
was not used very much given that it was inactive. (Tr. 149).  Kirby remembered
last being there on November 1, 2012 based on his blasting and drill logs,
which he had just recently looked at within the last few weeks. (Tr. 150).

At the time of inspection, the whole bench was
blocked off by a berm. (Tr. 150-51). Kirby stated that when the bench was last
used in early November whoever was working would have been on a different part
of the bench in an area past where the boulder was located. (Tr. 151-52). He explained
that the bench dead-ends approximately 100 to 125 feet past where the boulder
was located. (Tr. 152).

Kirby explained that they drove onto this bench
during the inspection because of an excavator that was parked on the other side
of the berm barricade that Gabbard wanted to inspect. (Tr. 153-54). The
barricade had to be opened in order for them to get through to the excavator,
which was located on the east end of the bench. (Tr. 154-55). Kirby asked his
excavator operator to come up and start the excavator so it could be inspected.
(Tr. 155). During the trip, they first crossed the barricade and then saw the
excavator before they approached the area where the boulder was located. (Tr.
155). The last time that the excavator had been used was in late October when
it was used for removing material from the wall for the ABC bench. (Tr. 155-56).
He stated that somebody would have had to cross in front of the boulder in that
early part of November. (Tr. 176) Kirby testified that the excavator had been
parked in that area because it was a “pretty good size” and they did not have
another need for it so they let it sit. (Tr. 156). Gabbard did not issue any
citations for the excavator. (Tr. 156).

After the inspection, the excavator operator left,
leaving only Kirby and Gabbard. (Tr. 157). Gabbard wanted to drive out on the
bench while they were still up there, which they did, and Gabbard began
inspecting the highwall. (Tr. 157-58). Neither Kirby nor Gabbard saw the
boulder when driving past the highwall for the first time. (Tr. 158). It was
not until they were on their way back that they could both see the crack behind
the boulder. (Tr. 158-59). Gabbard told Kirby that they had a problem, and
Kirby agreed. (Tr. 160). Kirby reminded Gabbard that he had a berm, but Gabbard
did not think the berm could catch the boulder. (Tr. 160). Kirby asked Gabbard
to let him get the excavator and push the boulder off the wall and see where it
would land. (Tr. 160). Gabbard agreed to that plan. (Tr. 160).

Kirby testified that they had a lot of rain in
October and November and speculated that the gap behind the boulder was due to
the rain. (Tr. 160-61). He stated that he had previously examined this highwall
and had not seen the boulder in that condition. (Tr. 161). According to Kirby,
Gabbard never mentioned the berm being inadequate during their discussions. (Tr.
161).

The excavator operator was called back up to do the
scaling; he had to go all the way around the pit to the west side and come up
to get to the boulder. (Tr. 162). The excavator did not have to drive past the
boulder to get to this position. (Tr. 162). When the operator had the excavator
in position, he was told to go ahead and push it off. (Tr. 163). Kirby
estimated that he and inspector Gabbard were about 350 yards from the boulder
when it was scaled. (Tr. 164). Due to the elevation, they could not see whether
any other rocks fell along with the boulder. (Tr. 164-165). Kirby took a
photograph on July 7, 2014 of the area on the wall where the boulder came off,
and he testified that the area had been inactive up until the date of the
photograph. (Tr. 168, Rx-4)

After the scaling was completed, Kirby and Gabbard
went to inspect the boulder without making any other stops. (Tr. 169). Kirby
testified that he saw where the boulder had fallen behind the berm, but did not
see any rocks that had fallen into the roadway. (Tr. 170-171). He did not move
any rocks from the roadway and did not know of anybody else moving any rocks.
(Tr. 171-72). Kirby testified that the inspector was surprised to see that the
boulder stayed behind the berm; basically that the berm did its job. (Tr. 172).
Kirby believed the berm was in the right position to protect the miners because
it was the right height and distance from the highwall. (Tr. 172, 174).

When asked about GX-7C, Kirby testified that it
showed a pile of sandstone, shale and dirt that was piled up against the wall.
(Tr. 185). He agreed that there was no space between that material and the wall
and that it was sloped towards the road. (Tr. 185). Kirby also agreed that
there was supposed to be a space between the wall and where the berm started.
(Tr. 185). He explained that what was shown in GX-7C was not a picture of a
highwall and was not the same wall the boulder was located on. (Tr. 186). He
marked GX-16 to show where he saw a berm. (Tr. 187).

Kirby identified GX-14 as a picture of the scaled
boulder. (Tr. 189). He agreed that there was material directly up against the
wall, but that it was not part of the berm which was located on the south side
of the picture. (Tr. 189). Kirby also examined GX-7C in comparison with RX-4
and noted that you could see the same area in displayed in GX-7C in RX-4. (Tr.
192). Kirby could not see the edge of the berm displayed in GX-7C in RX-4. (Tr.
192). He could, however, see where the highwall ended out past the boulder in
both exhibits. (Tr. 193). Kirby marked on RX-4 where the highwall ended and the
material began to slope up against the wall. (Tr. 196, Rx-5). He testified that
the sloped material began after the highwall ended. (Tr. 196).

Kirby told the inspector he did not agree with the
citation because the berm held the boulder. (Tr. 173). Kirby did not think the
boulder was loose. (Tr. 174). Kirby examined exhibit GX-7A and testified that
the he could see sky through the crack behind the rock, and felt that the rock
was not secure but he would not say it was loose. (Tr. 182).

CONTENTIONS OF THE
PARTIES

The Secretary contends that Respondent violated 30
C.F.R. § 56.3200, that the violation could have resulted in a fatal injury to
one miner, that the violation resulted from the operator’s moderate negligence,
and that the assessed penalty of $127.00 is appropriate in light of the six
110(i) criteria. See Sec’y Post-Hearing Brief at pp. 6-11.

Respondent contends that it did not violate 30
C.F.R. § 56.3200 because there was no hazardous ground condition. Assuming arguendo
that there was a hazardous ground condition, Respondent asserts that no
employees would have been exposed to the hazard because the workbench was
inactive. See Respondent’s Post-Hearing Brief at pp. 8, 17.

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

The findings of fact are based on the record as a whole
and the undersigned’s careful observation of the witnesses during their
testimony. In resolving any conflicts in testimony, the undersigned has taken
into consideration the interests of the witnesses, or lack thereof, and
consistencies, or inconsistencies, in each witness’s testimony and between the
testimonies of the witnesses. In evaluating the testimony of each witness, the
undersigned has also relied on his demeanor. Any failure to provide detail as
to each witness’s testimony is not to be deemed a failure on the undersigned’s
part to have fully considered it. The fact that some evidence is not discussed
does not indicate that it was not considered. See Craig v. Apfel, 212
F.3d 433, 436 (8th Cir. 2000)(administrative law judge is not required to
discuss all evidence and failure to cited specific evidence does not mean it
was not considered).

Respondent Violated 30
C.F.R. § 56.3200

On December 5, 2012, at 1355 hours MSHA Inspector
Donald Michael Gabbard issued this citation with the following Condition or
Practice:

Loose
Ground conditions were observed above the access road to the ABC level
workbench. An approximate 5ft x 5ft x 3ft loose boulder was approx. 40 ft. above
the travel route. This condition would expose persons using the route to
crushing hazards if the boulder cleared the berm at the base of the highwall
when falling. The roadway was used today to access the excavator on the bench.
Crushing injury from falling material can be fatal.

The Termination
Action indicated that the boulder was effectively scaled down. It did not cross
the berm and enter the roadway. The Citation was terminated at 1405 hours. (Gx-3).

The cited standard, 30 C.F.R. §56.3200 provides the
following:

Ground
conditions that create a hazard to persons shall be taken down or supported
before other work or travel is permitted in the affected area. Until corrective
work is completed, the area shall be posted with a warning against entry and,
when left unattended, a barrier shall be installed to impede unauthorized
entry.

There is no general requirement that a violation of
a regulation must create a safety hazard for a valid citation to issue. If
conditions exist which violate the regulation, a citation is proper. Allied
Products, Inc., 666F.2d 890, 892-893 (5th Cir. 1982). Commission
case law is consistent with this principle in that section 56.3200 “requires
that operators restrict miners’ access to areas where hazardous conditions
exist, whether or not it is likely that the hazard will result in an injury.” Cyrpus
Tonopah Mining Corp., 15 FMSHRC 367, (March 1993). In order to establish a
violation of section 56.3200, the Secretary must demonstrate the operator’s
failure to maintain highwall stability by correcting hazardous conditions
before work or travel is permitted in an affected area. See Connolly-Pacific
Co., 36 FMSHRC 1549, 1553 (June 2014). Whether a violation has occurred is
measured against the standard of whether a “reasonably prudent person” familiar
with the factual circumstances would recognize that a hazard existed within the
purview of the applicable standard. Id. (citing Spartan Mining Co.,
30 FMSHRC 699, 711 (Aug. 2008).

The Commission has affirmed the determination of an
ALJ that §56.3200 was violated where a high spoil pile and a slope had not been
taken down to prevent rocks from falling and miners were allowed to work and
travel in an adjacent area. Bellefonte Lime Company, Inc., 20 FMSHRC
1250, 1251 (Nov. 1998). In a case involving rocks on top of a highwall that
were in danger of falling in an area that was not barricaded Judge Manning
found there was a violation of §56.3200. I agree with his analysis of the two
parts of the safety standard:

The
safety standard provides that “[g]round conditions that create a hazard to
persons shall be taken down or supported before other work or travel is
permitted in the affected area.” (Emphasis added). The second part of the
safety standard provides that “[u]ntil the corrective work is completed,
the area shall be posted with a warning against entry and, when left
unattended, a barrier shall be installed to impede unauthorized entry.” Secretary
v. Lehigh Southwest Cement Co., 33 FMSHRC 340, 349 (Feb. 2011)(Emphasis
added).

In Secretary v. Hoover, Inc., 33 FMSHRC 751,
756 (Mar. 2011) Judge Miller found that where there was loose material on a
highwall and the area had not been bermed-off or barricaded there was a
violation of §56.3200. The Judge pointed out that the mine could have
barricaded the area if it did not want to scale the highwall, but failed to do
so.

In the instant case the AT bench had been barricaded
with a berm. Along the highwall side of the bench, there was muck material also
referred to as a berm. However, the presence of muck or berm at the base of a
highwall does not change the fact of a hazard presented by loose unconsolidated
material, such as the large boulder, high on the face of the highwall. It
follows that I do not find persuasive decisions suggesting that muck or berm at
the base of a highwall means the loose material on a highwall that has not
fallen does not constitute a hazard.[4]
This is because in any given fall of rock the path and presence of obstacles
that could change the path or trajectory of the rock, including the shape and
size of the rock itself, would preclude precise prediction of the final resting
spot.

The serious nature of
the loose boulder observed by Gabbard is underscored by the overall conditions
on the AT bench that day. Gabbard went to great lengths at hearing to establish
that the berm that did exist did not meet MSHA’s safety standards. (Tr. 22, 26,
44, 68, 71-73). Gabbard’s testimony and the photographs support a finding that
the berm material was not 10 to 15 feet from the base of the highwall to the
beginning of the back of the berm. The road was narrow and there was not enough
room for these dimensions to be met. I credit Gabbard’s estimates that the
bench was only 17 feet wide considering the outside berm, and hence there was
insuffient width to accommodate an adequate berm pulled out 10 feet from the
base of the highwall (GX-7C, GX-7D, GX-7F, GX-7J, GX-15). Kirby’s reported
measurements suggesting a much wider bench were taken long after the date of
the citation, just before the hearing. His testimony is not supported by the
contemporaneous photographs, and exactly where he made any such
measurements was not documented. Certainly, the photographs in RX-4 and
RX-5 are from a distance and not helpful. It is for these reasons that I place
greater weight on the observations and estimates made by Inspector Gabbard at
the time of the citation than the attempt by Kirby to discredit Gabbard’s conclusions.

It was fortunate in this case that the large boulder
happened to land in muck that was soft enough to absorb the impact and hold it
against further bounce or travel. But the result could have been different, had
it landed on a more solid pile of material and bounced, or been projected by
obstacles in its path to go beyond the muck. Further, the photographs and
testimony do show that some smaller rocks did fall onto the roadway. The
presence of these fresh smaller rocks on the bench roadway supports the opinion
of Inspector Gabbard that the berm was not adequate and the path of falling
rock cannot be precisely predicted. To prevent violation of the safety
standard, where there is loose unconsolidated material on a highwall, the area
must be barricaded and a warning sign posted until such time as scaling is performed
and completed.

The barricade to the bench was removed and the
inspection party travelled along the AT and under the boulder before any
scaling took place. As observed by Judge Lewis, under strict liability
standards, Respondent “had the responsibility to ensure that its mine site was
safe and that any hazardous highwall condition be corrected.” Secretary v.
Tulsa Stone Company, 35 FMSHRC 3392, 3398 (Nov. 2013). When a violation of
the Act is found, operators are mandatorily subject to strict liability
pursuant to section 110(a) of the Act, 30 U.S.C. § 820(a). See Wake Stone
Corp., 2014 WL 1870764 (April 2014). Before, or upon, removal of the
barricade the highwall should have been scaled before any access to the area
was allowed.

The Secretary presented sufficient evidence of a
hazardous condition associated with the highwall above the AT bench at
Respondent’s mine to establish a violation of § 56.3200. In making this
finding, I rely primarily on the testimony of Inspector Gabbard who observed a
loose boulder perched on the side of a highwall that was approximately 40 feet
tall during his inspection of the subject mine on December 5, 2012. (Tr. 16-18,
23). Gabbard reasonably estimated the boulder was approximately 5ft x 5ft x 3ft
in dimension and weighed 11,000 pounds. (Tr. 17-18, 23-24, 111). I credit
Gabbard’s testimony that he knew the boulder was loose because it was sitting
on the highwall independently and he could see air or daylight behind the
fractures on the side of it. (Tr. 23). The boulder was overhanging the roadway,
sitting loose independently, not connected underneath to the wall, and nearly
70 percent was not supported. (TR. 23, 58, 64; GX-5, GX-7E) Given its loose
condition, Gabbard considered it to be a definite hazard, and if it had come
down off the highwall it could have caused a crushing fatality. (Tr. 25). Photographs
of both the hazard and its abatement were taken during Gabbard’s inspection,
which were admitted into evidence at the hearing. (Tr. 56-69). GX-7A clearly
depicted the crack on the left side of the boulder and it does also appear that
nearly 70 percent of the boulder was unsupported. (Tr. 58, GX-7A). There were
smaller rocks that had fallen out beyond any highwall berm and onto the
roadway. (GX-15).

Kirby testified that in his opinion the boulder was
not loose on the day of the inspection even though he agreed air could be seen
coming through the crack. (Tr. 174, 182). His position was that the boulder did
not pose a hazard, although it did need to be “taken care of” because if a rock
that size became unstable it could fall off the highwall. (Tr. 183). However,
unlike Inspector Gabbard, Kirby offered no reasons to support his conclusion
that the rock was not unstable. Rather, his argument rested primarily on his
repeated claim that it needed to be addressed even though it was not loose. Yet,
while maintaining it was not loose, he would not say it was “secure”. (Tr. 182,
183). I do not find his testimony to be credible. The evidence presented
clearly shows that the boulder was was cracking off the highwall because air
could be seen through those cracks. A boulder of that size and magnitude that
has become loosened from the highwall is most definitely a hazardous ground
condition within the meaning of the cited standard.

The evidence further reflects that travel was
permitted in the affected area before the hazardous condition was corrected. Prior
to the inspection, the large boulder had not been removed or supported in any
way. (Tr. 42). Kirby testified that this particular bench had not been used
since the early part of November when they were last blasting, and he had not
previously seen the boulder in this condition. (Tr. 149, 161, 175-76, 197). Perhaps,
as Gabbard believed, Kirby did not know about the overhanging boulder. But
under strict liability he should have known, since it is the responsibility of
the operator to insure the safety of miners at the mine. Yet, during the
inspection, the worker’s truck and the supervisor’s truck were both driven past
the hazardous condition in route to examine the excavator that was located
beyond the boulder thus exposing the excavator operator, the inspector, and the
supervisor to the hazard before the condition was abated. (Tr. 48-49,
115,153-54,).

Inspector Gabbard believed the area had been active;
however, it was inactive on the day of the inspection. The barricade to the AT
was in place until it was opened to give access to the inspection party. (Tr.
115-16, 118, 154-55). Although Kirby testified the area had been inactive about
a month, the excavator had not been tagged out, and he admitted that either he
or the operator would have to travel past the boulder to remove the excavator
if it was needed at another location. (Tr. 120, 180-82). Moving the excavator
would again have resulted in exposure to the hazardous condition. (Tr. 119-120).
Moreover, although the affected area had been barricaded off, there was no
signage posted to warn against entry as required by the cited standard. (Tr.
42, 118).

Considering the loose condition of the boulder,
Gabbard credibly testified that had it fallen on its own it could have taken a
different path based on its trajectory and how it struck the wall. (Tr. 39, 110).
This unstable condition clearly created a hazard to those present during the
inspection and any other worker who may have travelled down the AT bench to
retrieve the excavator or perform other work.

Respondent argues that the boulder did not pose a
hazard because the berm effectively caught it when it was scaled off the
highwall. See Respondent’s Post-Hearing Brief at p. 8. However, this argument
must fail. The hazard existed because of the loose boulder on the highwall that
could have fallen at any time crushing whoever was below; it existed prior to
the scaling. Whether it was effectively scaled and caught by the berm is
after-the-fact and of no consequence to determining if there was a violation of
the cited standard.

The hazardous condition posed by the boulder was not
abated prior to travel in the affected area, and the area was not posted with a
warning sign against entry. As such, I find that the Secretary has established
by a preponderance of the evidence that a violation of the cited standard
occurred.

Gravity and Negligence

The Mine Act requires that the “gravity of the
violation” be considered in assessing a penalty. 30 U.S.C. § 820. Gravity is an
evaluation of the seriousness of the violation. The Secretary has promulgated a
three-factor inquiry to determine the gravity of a citation for purposes of
calculating the penalty. Those factors are the likelihood of the occurrence of
the event against which a standard is directed, the severity of the illness or
injury if the event has occurred or was to occur, and the number of persons
potentially affected if the event has occurred or were to occur. 30 C.F.R. §
100.3(e).

Given the fact that the area had been barricaded off
and the boulder was caught when it was scaled, I agree with Gabbard’s testimony
that it was “unlikely” injury would have occurred. (Tr. 49-50, 92). But I also
agree with Gabbard that had an injury occurred it would have been to one
individual and it would have been fatal by a crushing injury from the falling
boulder. (Tr. 41, 49-50, 122).

Negligence is conduct, either by commission or
omission, which falls below a standard of care established under the Mine Act
to protect miners against the risks of harm. Under the Mine Act, an operator is
held to a high standard of care. Moderate negligence is where the
operator knew or should have known of the violative condition or practice, but
there are mitigating circumstances. Low negligence is where the operator
knew or should have known of the violative condition or practice, but there are
considerable mitigating circumstances. 30 C.F.R. § 100.3(d).

I agree with Inspector
Gabbard’s determination that the difficulty in observing the boulder was a
mitigating factor. He and Kirby did not see the boulder when they drove onto
the AT bench past the highwall for the first time. (Tr. 20, 44-45, 158). It was
not until they were on their way back out that they could see the crack behind
the boulder. (Tr. 45,158-59) Testimony from both Gabbard and Kirby indicated
that there had recently been heavy rains in the area, (Tr. 29, 113, 160-61) and
it is possible the rain either caused or accelerated the loosening of the boulder.
Given that the precarious position and loosened condition of the boulder was
not obvious, the possibility of weather factors, and that Kirby was adamant he
was unaware of the condition, Gabbard determined the negligence to be moderate.

There are however, additional
factors that Gabbard did not take into consideration. The bench beneath the
highwall was barricaded against entry at the time of the inspection and
probably for a period of time before the inspection. (Tr. 20-21, 42, 115-16,
150-51, 175-76). Furthermore, this material was only moved for purposes of the
inspection. (Tr. 115-16). Kirby testified that nobody had even been to the AT
bench since November when they were last blasting. I have found, above, that
Kirby’s testimony was not credible. However, it reasonable to conclude that the
AT bench was inactive for some period of time. It is, simply, that on
this record that period of time cannot be determined with accuracy. Further,
notwithstanding the nonconforming berm material and the narrow bench, the
boulder did not fall onto the road. There was no dispute at hearing that when
the boulder was scaled off the highwall the material at the base of the
highwall on the AT bench did catch the boulder. (Tr. 35-36, 54, 56, 68, 87). While
I am not in agreement, Gabbard did testify that the citation would not have
been issued if there had been a berm meeting the guidlines published. By MSHA.

Based
on the above discussion of mitigating circumstances, I find that Respondent
acted with low negligence when it violated section 56.3200.

Penalty

In this matter, the Secretary proposed a penalty of $127.00
for Citation No. 8274144. When assessing a civil penalty, the Commission has
affirmed that ALJs are not bound by the Secretary’s proposals. See 30
U.S.C. § 820(i); Performance Coal Co., 2013 WL 4140438 (Aug. 2013) (citing
Cantera Green, 22 FMSHRC 616, 620-21 (May 2000)). Rather, the ALJ is
independently responsible for determining the amount of the penalty in
accordance with the six statutory criteria set forth in section 110(i) of the
Act:

[1]
the operator’s history of previous violations, [2] the appropriateness of the
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. Id.

I have considered all six statutory penalty criteria.
Laurel Quarry is a small mine with only 37,584 hours worked in 2012. During the
approximate two years preceding the current violation, Laurel Quarry was only
issued a total of eight citations, none of which were for a violation of
section 56.3200. I find this to be a low history of violations. The parties
stipulated that the Secretary’s proposed penalty amount of $127.00 would not
affect the operator’s ability to continue in business. They further stipulated
that the citation was timely abated in good faith. As discussed supra,
the Respondent acted with low negligence. Therefore, I reduce the civil penalty
assessed to $100 for this violation.

ORDER

For the reasons set forth above, Citation No.
8724144 is MODIFIED to reduce the negligence from moderate to low.
Hanson Aggregates Midwest, LLC is ORDERED TO PAY the Secretary of
Labor the sum of $100.00 within 30 days of the date of this decision.[5]

/s/ Kenneth R. Andrews

Kenneth
R. Andrews

Administrative
Law Judge

Distribution: (U.S.
Certified Mail)

Emily O. Roberts, Esq.,
U.S. Department of Labor, Office of the Solicitor, 211 7th Avenue North, Suite
420, Nashville, TN 37219

Margaret S. Lopez,
Esq., Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 1909 K Street, NW,
Washington, D.C. 20006 

[1] Citations to
the transcript will be labeled “Tr.” followed by the page number(s).

[2]Hereinafter, Government
exhibits will be referred to as “Gx” followed by a number. Respondent’s
exhibits will be referred to as “Rx” followed by a number.

[3]The field notes
are available at GX-4.

[4] See, Chico
Crushed Stone Partnership, 15 FMSHRC 524 (Mar. 1993)(ALJ), Hanson
Aggregates Southeast, 28 FMSHRC 1049 (Nov. 2006)(ALJ), Nelson Quarries,
Inc., 30 FMSHRC 254 (Apr. 2008)(ALJ).

[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