Secretary of Labor v. Ludwig Explosives, Inc. and Tuscola Stone Company

Read the official release (fmshrc.gov)

Plain-English summary

Two blasters worked near the base of a 40-foot highwall made of loose, unconsolidated material after heavy rain and observed rock falls. Judge John Kent Lewis held both Tuscola Stone and blasting contractor Ludwig Explosives responsible under 30 C.F.R. § 56.3200: Tuscola failed to test and scale the wall, while Ludwig entered and remained in the affected area before corrective work. He upheld the imminent-danger order and found both violations S&S, fatal, highly negligent, and unwarrantable failures. Crediting rapid abatement and limited violation histories, he reduced Ludwig's penalty to $15,900 and Tuscola's to $9,000.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.3200
• Outcome: The imminent-danger order was affirmed, both citations were affirmed as modified, and penalties totaling $24,900 were assessed.
• Key point: Both a mine operator and an independent blasting contractor can be liable when miners work beneath an unscaled highwall presenting an obvious falling-rock hazard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER

875 GREENTREE ROAD,
SUITE 290

PITTSBURGH, PA 15220

TELEPHONE: (412)
920-2682

FAX: (412) 928-8689

November 13, 2013

LUDWIG EXPLOSIVES, INC.,

Contestant,

v.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent

CONTEST PROCEEDINGS

Docket No. LAKE 2011-530-RM

Citation No. 6555529; 02/23/2011

Docket No. LAKE 2011-531-RM

Order No. 6555528; 02/23/2011

Mine: Tuscola Stone Company

Mine ID 11-01657 B1N

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

LUDWIG EXPLOSIVES, INC.,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2012-56-M

A.C. No. 11-01657-267325 B1N

Mine: Tuscola Stone Company

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

TUSCOLA STONE COMPANY,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2012-25-M

A.C. No. 11-01657-267815

Mine: Tuscola Stone Company

DECISION

Appearances:               Nadia
A. Hafeez, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for the Secretary of Labor.

Daniel Foltyniewicz, pro se (non-attorney),
Wheaton, Illinois, for Ludwig Explosives, Inc.

Alan R. Shoemaker, pro se (non-attorney), Tuscola, Illinois, for Tuscola Stone Company.

Before: Judge Lewis

STATEMENT OF THE CASE

These civil penalty proceedings are
pursuant to the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §801 et
seq. (the “Act” or “Mine Act”). This matter concerns Citation No. 6555522
issued against Respondent, Tuscola Stone Co., and Citation No. 6555529 issued
against Respondent, Ludwig Explosives, pursuant to Section 104(d) of the Mine
Act. A hearing was held in Springfield, Illinois, on May 6, 2013. After the
hearing, the parties submitted post-hearing briefs, which have been fully
considered.

ISSUES

The issues to be determined are:
whether the 107(a) imminent danger order was validly issued; whether the
Respondents violated 30 C.F.R. § 56.3200; whether the violations were
significant and substantial in nature; and whether the violations constituted
unwarrantable failures.

STIPULATIONS

The parties submitted the
following joint stipulations at hearing:

1)                 
Respondent, Tuscola Stone (“Tuscola”) was, at all relevant times, the
operator of the Tuscola Stone Company Mine; Mine ID: 11-01657.

2)                 
Respondent, Ludwig Explosives (“Ludwig”) was, at all relevant times, a
contractor (Contractor ID B1N) performing blasting activities at the Tuscola
Stone Company Mine; Mine ID: 11-01657.

3)                 
The mine listed above is a mine, as defined in the Mine Act.

4)                 
Tuscola and Ludwig are engaged in mining operations in the United States, and their mining operations affect interstate commerce.

5)                 
Tuscola and Ludwig are subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. §§ 801-965.

6)                 
The Federal Mine Safety and Health Review Commission has jurisdiction
over these matters under the Mine Act.

7)                 
The citations at issue in this matter were issued on the dates indicated
on each.

8)                 
Inspector Peter Ackley, whose signature appears in block 22 of citations
at issue, was acting in his official capacity and acting as an authorized
representative of the United States Secretary of Labor.

9)                 
The Secretary proposed penalties for each citation as listed on Exhibit
A to each of the petitions for penalty assessment filed in these matters and
those amounts are incorporated by reference herein.

10)             
The proposed penalties will not affect Tuscola’s or Ludwig’s ability to
continue in business.

11)             
Tuscola and Ludwig demonstrated good faith in abating the violations.

12)             
The exhibits to be offered by the parties are stipulated to be authentic
but no stipulation is made as to their relevance or as to the truth of the
matters asserted therein.

SUMMARY OF THE TESTIMONY

Peter Ackley

Peter Ackley (“Ackley”) appeared
and testified on behalf of the Secretary.

Ackley had worked for three and a
half years as a safety and health inspector for the Department of Labor, Mine
Safety and Health Administration (“MSHA”) in the metal and nonmetal division.
Tr. 11.[1]

Prior to working for MSHA, Ackley
had worked for a cement plant for approximately 15 years, and before that he
had worked as a heavy equipment operator for 15 years. Tr. 12. At the cement
plant, Ackley did not examine the highwalls of the facility’s pits. Tr. 58. Ackley
served in the Navy as an operating engineer with the Seabees and he had some
community college credits. Tr. 12, 54. He had formal training with the Mine Academy for 26 weeks for entry level inspections. He also had journeyman training;
going out with journeymen inspectors when they performed inspections. Tr. 12. His
normal duties as an inspector included performing regular inspections, doing
hazardous condition complaints, filing reports, going out to mine sites and
visiting and verifying compliance with 30 C.F.R. Tr. 12.

Ackley usually inspects
approximately 70 mines per year, most of which are limestone, sand, and gravel
pits. Tr. 12-13.

Ackley was familiar with
Respondent’s mine, having performed inspections in February, 2011. He
characterized the mine as “mid-range” in size. Tr. 13. As compared to many
mines that had two to three employees, Tuscola Stone employed 12 employees. Tr.

14. The mine used a multiple bench methodology for mining and crushing
    limestone products.[2]
    Tr. 14.

When he performed his inspection in
February, 2011, Ackley followed his normal inspection procedures: driving to
the scale house or office; informing the highest ranking official that he
intended to perform an inspection; going through some standard questions; and
traveling through the mine with the mine operator or representative of the mine
operator, and possibly miner’s representatives. Tr. 14. On February 23, 2011,
Ackley was accompanied by members of the management team, including Rodney
Hatten, Alan Shoemaker, and foreman Jay Carter. Tr. 15. There was no miner’s
representative.[3]
Kevin LeGrand, Ackley’s field office supervisor, also accompanied him. Tr. 15,
55-56.

As a result of his inspection,
Ackley issued Citation No. 6555522 to Tuscola Stone Co. on February 23, 2011,
at 12:48. Tr. 15; SX-4.[4]

Ackley had issued the citation
because miners were working at the base of a high wall that had loose
unconsolidated material, which had not been removed before the commencement of
work. Tr. 16. The rock was fractured and broken vertically and horizontally,
and there were sections that were gapped from the highwall and overhanging. Tr.
16-17.

Ackley used his camera to
photograph the highwall. Tr. 16. He stated that the photograph admitted as SX-5
depicted the blasters at the base of the highwall, where there was loose,
unconsolidated material above them.[5]
Tr. 18. Two miners, a blaster and blaster’s helper, were loading shots at the
base of the high wall.[6]
Tr. 19. They were close enough to touch the highwall, which was located above
them and had cracked vertically and horizontally and had overhang material. Tr.
19-20.

If material fell, it could kill or
injure the miners standing below. Tr. 20. Ackley marked the gravity as “highly
likely” because of the presence of two miners who were exposed to falling
material during a time when material had actually fallen. Tr. 22. While he had
not actually observed the material fall, Ackley had been advised of such by individuals
at the scene, including Robert McAdam, Justin Coner, and Michael Schafer. Tr.
22.

The photograph at SX-6 accurately
depicted conditions at Tuscola Stone that Ackley had observed. This included an
atypical amount of coarse material laying about at the bottom of the wall. Tr.
23-24.

Ackley would not have expected to
see so much material on the ground. He further would have expected to have seen
the wall scaled. The materials should not have been gapped and unconsolidated.
Tr. 25.

Other than a quick visual inspection,
Respondent Tuscola Stone had failed to do anything to correct the conditions of
the wall. Tr. 25. Given the height of the wall and the material, Respondent
should have performed a thorough visual inspection and removed unsafe materials.
Tr. 26. Ackley could not take actual measurements of the unconsolidated
material due to safety concerns, but made estimates of such, as reported in his
citation. Tr. 26; SX-4.

Ackley estimated that the highwall
was approximately 40 feet in height. Tr. 28. The photograph at SX-7 depicted
the whole height of the wall, the bench that miners were working on, and the
ditch dug in front of the blast area. Tr. 28. Because of the ditch’s location,
Ackley had a concern regarding the blaster’s ability to leave the area safely
if material did fall. Tr. 30. He reviewed the photograph at SX-7, which
depicted loose overhanging material, some of which appeared to have already
fallen. The photograph also showed where miners would have been working and
where tools were located, which would later need to be retrieved. Tr. 30-32.

In determining that the hazardous
condition could reasonably be expected to result in fatal injuries Ackley
considered the size of the rock that was loose and unconsolidated, the height of
the highwall, and that there had been fatal impact injuries associated with
highwalls every year in the past. Tr. 34-35.

Referring to MSHA’s Rules to Live
By III, “Preventing Common Mining Deaths,” Ackley noted that MSHA had placed
special emphasis on certain safety standard violations that needed to be
avoided because of the fatalities associated with such. Tr. 35; SX-8, p. 2. MSHA
had gathered statistics regarding the Rules to Live By, and made the results
available to mine operators through its website, discussions during
inspections, and the circulation of brochures. Tr. 36.

Two people would have been affected
by the violation because both the blaster and blaster’s helper were working
under the highwall, and could have been fatally injured by falling rock. Tr.

37. Ackley further explained that once material begins to loosen and fall, more
    than one falling rock is usually involved in an incident. Tr. 37.

The violation was the result of
highly negligent conduct because Respondent, Tuscola Stone, had reason to know
about the hazardous condition of the highwall. Tr. 37.

Respondent’s personnel traveled in
the area as part of normal mining activities and used the haul road. Tr. 37. On
Monday meetings with the blasters, Respondent had been informed that the
highwall was unsafe. Tr. 37-38. Despite being informed of such, the mine
operator failed to take any actions to correct the hazardous highwall
conditions. Tr. 37-38. Ackley concluded that the unsafe conditions had existed
for “a couple of weeks, maybe longer.” Tr. 38.

Ackley issued a 104(d)(1) citation
because the violation was of a mandatory safety standard that was highly likely
to cause serious injuries. The operator had reason to know of the condition and
had failed to take corrective actions. Tr. 38-39.

Because blasters had informed the operator’s
foreman, Rodney Hatten, on Monday that the wall was unsafe, the operator should
have conducted a thorough examination and taken corrective actions before
miners would have been permitted to work underneath the highwall again. Tr. 39.

Three Ludwig employees were working
in the affected area: two by the base of the highwall and one by the explosives
truck. Tr. 39-40. Any miners who would be going down to the pit would have
observed the condition of the highwall. Also, the person who dug the trench
would have been able to see the condition. Tr. 40. Those individuals, however,
would not have been exposed to the same hazard as the two blasters because they
would not have been as close to the highwall. Tr. 40.

Ackley had spoken to both Shoemaker
and foreman Hatten regarding the condition. Shoemaker reportedly informed
Ackley that “it was common during [that] time of year during thaw and freeze
cycles for material to move off the wall.” Tr. 41.

Based upon “the extent of the gap
and breaks in the walls, overhanging material and experience of the miners that
work at Tuscola,” management should have recognized the cited conditions before
the date of inspection. Tr. 41. Due to the high degree of danger posed by the
condition, Ackley issued a verbal imminent danger order to Hatten as he and
Hatten were driving down to the blast area to observe the blasters. Tr. 42.

In order to terminate the citation,
the operator scaled back the highwall, using a crane and excavator.[7]
Tr. 42. In order to retrieve a hose, some boosters and blasters that had been
left behind, Respondent used an unsparking shovel and a pole with a manlift to
scoop the boosters and caps and take them out of the area. Tr. 43-44; SX-9.

Ackley indicated that Citation No.
6555529, which was issued to Respondent, Ludwig Explosives, was essentially
identical to Citation No. 6555522 issued to Respondent, Tuscola Stone. Tr. 47.

Pursuant to MSHA’s procedure
handbook for writing citations under the dual compliance guide, Ackley had
issued two citations, one to each Respondent, for violating §56.3200. When a
cited violation involves both a mine operator and contractor, both may be cited
for the unsafe condition. Tr. 47.

One of the factors considered in
issuing a citation is who has responsibility for the abatement of the citation.
Because Tuscola Stone knew (or should have known) of the hazardous condition
and because Ludwig employed two blasters who were in the affected area and
exposed to the hazardous conditions, both Respondents were cited. Tr. 47.

Under strict liability standards,
Tuscola Stone had the responsibility to ensure that its mine site was safe and
that any hazardous highwall condition be corrected. Even as an independent
contractor, Ludwig still had the duty to ensure that its employees not be
exposed to hazards. Tr. 48.

For the same reasons that he
outlined in his testimony against Tuscola Stone, Ackley had marked Ludwig’s
violation as highly likely to result in a fatal injury. Tr. 49.

Ludwig’s lead blaster also had the
responsibility to examine the highwall and to make certain conditions were safe
for the blasters. When doing a workplace examination he was an agent of the
operator. The person in charge at the mine for the blasters, Ludwig’s employee,
was aware of the fact that rock had fallen from the hole. However, rather than
immediately moving everybody out of the danger area, he continued loading the
hole they were working on. Tr. 49-50.

During an interview with Ackley
after he had been withdrawn from the area, McAdam had reported that he heard a
rock fall but, nonetheless, decided to finish loading the last hole before
withdrawing from the area. Tr. 50.

Ackley opined that the blasters,
upon hearing a rock fall, should have immediately backed away from the
situation and reevaluated it to determine a safe procedure. They should not
have finished loading the hole or moving the tools or explosives out of the way
once they heard something fall. Tr. 51. Without taking the time to back off and
observe the wall, the blasters would not have known whether it was just one
rock falling or the start of continuing material falling. Tr. 51.

Ackley had issued the imminent
danger order to Hatten of Tuscola Stone because he was at the scene. Tr. 51. Ackley
noted that he could have issued additional citations on the date of his
inspection, including one for failure to properly examine the highwall. However,
he was involved with other concerns, such as withdrawing all affected miners
from the highwall and dealing with explosives left at the base of the wall. Tr.
52-53.

The same actions to abate Citation
No. 6555522 were taken to abate Citation No. 6555529. Tr. 53.

Ackley reaffirmed that the lead
blaster had informed him that loose rock had fallen on February 21 and 22,
2011. Tr. 61-65. Ackley had not personally witnessed the falls. Nor did he see
any of the deposited material, depicted in the photograph at SX-4, fall to the
ground. Tr. 65-66.

Ackley spoke with all three of
Ludwig’s blasters—Robert McAdam, Justin Coner, and Mike Payton—who asserted
that they heard material fall on February 23, 2011. Payton heard it fall from
the truck he was standing next to. The blaster and driller heard material
hitting mud close to where they were working. Tr. 66.

The ditch in front of the highwall
was reportedly present on Monday and was dug sometime between Monday, February
21, 2011, and the Wednesday, February 23, 2011, inspection. Tr. 67.

When working near highwalls, miners
should maintain a distance from the base of the highwall of one third of its
height. Such a distance, while not a specific MSHA regulation, was a “rule of
thumb” recognized in the industry. Based upon the subject highwall’s estimated
40-foot height, a miner would therefore need to keep a distance of
approximately 15 feet. Tr. 68-69. Ackley, however, saw miners next to the
highwall, with one actually touching it. Tr. 70.

The mine operator and blasters came
up with a plan to safely remove materials, including explosives, at the base of
the wall by using a JLG manlift. Tr. 74-76. It was safer to use an extension
over a ditch with a tagged out JLG manlift to remove explosives than to allow
miners to approach and remove blasting material on foot.[8]
Tr. 80-81. Ackley agreed that whether individuals were using a JLG or
approaching the affected area on foot, if they determined that conditions were
unsafe, they could both withdraw from the area.[9]
Tr. 82.

Ackley confirmed that MSHA had a
rule that a loaded hole should not be left for an extended period of time
without being shot. Tr. 77.

Ackley conceded that Rules to Live
By III may not have been available when the citation was issued. SX-8; Tr. 86.

On redirect examination, Ackley
testified that he understood that on February 21, 2011 Ludwig had left the site
of the highwall because it was unsafe to blast that day. Tr. 87. He further
received no indication that measures had been taken to abate the unsafe
conditions before work was begun on February 23, 2011. Tr. 88.

Before he was able to get the
miners’ attention, they were approximately five feet from the highwall. Tr. 91;
SX-11.

Other than taking corrective
actions such as scaling the highwall and removing blasting caps, MSHA rules
would not have permitted any other work to continue in the affected area. Tr.
92-93; SX-12.

Ackley denied that he had utilized
Rules to Live By in order to justify his negligence finding. Tr. 94. He had
referred to the Rules only to show that highwalls had been a known problem in the
industry and had involved fatalities in the past. Tr. 94.

On recross, Ackley confirmed that
he had cited the JLG manlift for an auxiliary violation, but had not ordered
such taken out of service. Tr. 95.

On cross examination by Shoemaker,
Respondent Tuscola Stone’s representative, Ackley confirmed that he had not
physically given Tuscola Stone a copy of Citation No. 6555522 on the date of
issuance. Tr. 97-98; SX-4.

Ackley did not think it necessary
to note in the body of the citation that the blasters working at the highwall
were control blasters, or that the lead blaster, Robert McAdam, had informed
him that loose rock had fallen on February 21, 2011. Tr. 98-99.

Ackley was told that the men had left
the shot on Monday, February 21, 2011, because “of heavy rain and the high wall
was unsafe.” Tr. 100.

Even though the JLG manlift had
been cited and tagged, it was a “good” decision on the part of Tuscola Stone to
have taken it out of service in taking corrective actions. Tr. 101.

Ackley agreed it was a “judgment
call” that the highwall he cited contained loose material. Tr. 107. He observed
Tuscola Stone employees use a bucket of an excavator to scale the highwall area
that wasn’t as tall and a crane with dozer track to scale taller areas. A track
attached to a wrecking ball helped to remove some of the material. Tr. 108-109.

Ackley further agreed that
Shoemaker had offered to scale the entire highwall as a safety measure. Tr.
111.

Shoemaker and Hatten were the two
individuals from Tuscola Stone that he had interviewed during his
investigation. Tr. 114. Ackley did not request that the Respondent test the
affected area or prove there was no loose material before issuing his citation.
Tr. 112-113. Tuscola Stone had been cited because it was responsible for the
highwall and issued an unwarrantable failure because it was aware that the
affected area had hazardous conditions that remained uncorrected when the
blasters returned to work. Tr. 117.

On redirect examination, Ackley
stated that Tuscola Stone, as owner/operator of the mine, owed the same degree
of care to its employees and contractor employees to ensure their safety while
they were working at the mine. Tr. 118.

Referring to his general field
notes, Ackley stated that he was told that rock or rock material was seen
coming off the wall on Monday, February 21, 2011.[10]
Tr. 118.

Tuscola Stone had not, in fact,
asked for the opportunity to demonstrate the highwall was sound. Tr. 120.

Referring to his close out
conference summary at SX-13, Ackley indicated that Shoemaker had reportedly
asserted that blasters are trained to recognize highwall standards and should
inform him of any hazardous conditions. It was not his responsibility to check
on the highwalls. Tr. 121-122.

As discussed infra, the
factual issue of whether any of the employees of either Respondent had informed
Ackley that rock had been seen falling on February 21, 2011 was hotly disputed.
Ackley’s field notes indicate that McAdam had reportedly informed Hatten on
February 21, 2011 that “rock was falling from heavy rains on Monday.” See also,
LX-1, p. 18.

Michael Schafer

At hearing, Michael Schafer appeared
and testified on behalf of Respondent, Ludwig Explosives.

Schafer testified that he had gone
to the subject mine on February 21, 2011 to be on the shot. Tr. 125-126. However,
he was telephoned by blaster, Gary Lideras, that “a waterfall [was] coming off
of the top of the highwall,” and that Lideras was not going to load the shot.
Tr. 125-126. Schafer heard no mention of “stone, rock, mud, anything else…” Tr.

127. Schafer felt that the blasters needed to wait for water to stop draining
     before continuing with the shot. Tr. 127. After the water stopped draining,
     they would have to go back in and re-examine the holes. If they were going to
     shoot, they would need to do another workplace examination, check everything
     out, make certain that the area was safe and stable, go back in and reload the
     shot. Tr. 127-128.

Schafer stated that on the morning
of February 23, 2011, he telephoned Hatten and was told that the water had
stopped coming off the face and that it would be “okay to go.” Tr. 128-129.

On cross examination, Schafer
testified that water coming off a wall would not be a hazard in and of itself.[11]
Tr. 129.

Schafer had not been present at
Tuscola Stone on February 21 or 23, 2013, and had therefore not observed any of
the cited conditions firsthand. Tr. 129-130.

On cross examination by Tuscola
Stone’s representative, Schafer described various other reasons why Ludwig’s
blasters had waited for two hours without doing a shot. These included: the
need to fill the trucks’ water tanks, the need to wait for trucks to clear the
ramp, and the need for chips to be delivered. Tr. 131.

Schafer stated that Ludwig blasters
had reported to Hatten that they wanted to reschedule the shot because of the
water washing off the highwall. There was no mention of rock running off the
highwall or overhangs or loose unconsolidated material. Tr. 132.

Robert McAdam

At hearing, Robert McAdam
(“McAdam”) appeared and testified on behalf of Respondent, Ludwig Explosives.

On February 21, 2011, McAdam was
working as the bulk truck operator at Tuscola Stone. Gary Lideras was the lead
blaster. Tr. 134. McAdam stated it was raining “pretty heavily” on February 21,
2011, which led Lideras and McAdam to decide to delay blasting. Tr. 134.

On February 23, 2011, the weather
had changed. McAdam returned to the mine site, this time working on the lead
blaster. He conducted a workplace examination. Also present were Justin Conder and
Mike Payton. Tr. 134-135. A perimeter was established preventing entry into the
blasting zone by unauthorized individuals. Tr. 135.

A ditch had been dug in front of
the wall since February 11, 2011. Tr. 137. McAdam wore a harness to avoid
falling into such if he stumbled. Tr. 138.

While loading for the shot, McAdam
heard “a noise like something had fallen.” Tr. 138. He had “no idea what that
was,” but told Conder that they were going to stop loading the shot and vacate
the area.[12]
They proceeded to the cab of the truck in order to notify supervisor, Mike
Schafer. Tr. 140. While they were in the process of removing equipment,
including a hose and detonating caps, MSHA had arrived on the scene.[13]
Tr. 140.

They were “trying to probably roll
it back up and get it out of the hole.” Tr. 141. If the hose remained in place,
it might have shot or explosive material, all of which could be destroyed,
causing a waste of assets. Tr. 141. There were approximately 10 loaded holes.
Tr. 141.

McAdam could not recall whether
MSHA had instructed him to withdraw from the site. He informed MSHA that the
hose had to be moved and the unused explosive materials had to be picked up
from the remainder of the shot. Tr. 142. MSHA wanted Respondent to come up with
a different plan rather than re-entering the affected area on foot. Tr. 142.

Eventually it was decided to create
something to pick the materials up and bring them out of the area. Tr. 142. McAdam
did not know whose idea it was. Tr. 143.

Tuscola Stone brought down a manlift
and used improvised equipment to scoop up the cast primers and the detonating
caps. Tr. 143.

McAdam stood in the manlift, which
was extended over the ditch. Tr. 143-144. He had some concern for his own
safety in utilizing such a procedure, but was not 100% certain that he
expressed his concern to MSHA. Tr. 144; SX-7.

After removing the supplies, McAdam,
as lead blaster, still had to hook up the explosive caps. The detonators had to
be hooked up so they would detonate properly. At that time they were just
sitting in the hole. McAdam did not believe that MSHA had advised him of the
need to shoot the holes. Tr. 145. After making sure that all was safe, McAdam
fired the shot. Tr. 146.

On cross examination, McAdam
indicated that he had performed a workplace examination, but not a ground
control examination. Tr. 147-148.

After hearing something fall and
calling Schafer about such, McAdam left the area where the hole was located and
the noise was heard. Tr. 148. He remained in front of the high wall. Tr. 148. McAdam
did not recall his conversation with inspector Ackley on February 23, 2011. Tr.
149.

Regarding a prior written statement
that he had given on June 22, 2011, McAdam stated that he had felt unsafe on
February 21, 2011, stating: “that it was raining and just the weather itself
wasn’t great and I’m not 100% sure, but I believe there was a waterfall coming
over the top down.” Tr. 150. The water in and of itself could have made
conditions unsafe, creating such hazards as mud slides and debris falling off
the wall.[14]
Tr. 150.

Regarding his prior written
statement contained at SX-15, p. 3, McAdam stated that he was excited on
February 23, 2011 because he heard a noise. He did not know how close it was,
but it was close enough to have frightened him. Tr. 151-152; see also
Conder statement at SX-6.

McAdam characterized the decision
to use the manlift to retrieve the blast caps as a “collective [one] between
all involved parties.” Tr. 152. MSHA did not require that a manlift be used.
Tr. 152.

McAdam could not recall telling
Inspector Ackley that he had informed Hatten on February 21, 2011 that rock had
been falling due to heavy rain. Tr. 153. By “withdrawing from the area,” McAdam
meant to indicate getting off the shot and getting material out of the way, not
moving away from the highwall. Tr. 154-155.

Upon questioning from the
undersigned, McAdam stated that if the area were immediately evacuated, the
following would have been abandoned: “a hose full of explosive material,”
unused cast primers and detonating caps, and “ten holes loaded with
explosives.” McAdam testified that such abandonment of explosive materials was
dangerous because rock falls or thunderstorms might cause an explosion. Tr.
155-156.

Although the hose containing explosive
material might also be retrieved by detaching such from the truck and pulling
it back like a garden hose, this would have been a very strenuous task and, in
the act of pulling, material might squirt out of the hose onto the ground. Tr.
157.

On cross examination by Tuscola
Stone’s representative, McAdam stated that water coming over the highwall was
in itself a hazardous condition. However, he did not see any rock falls or
cracking or loose rock or unconsolidated material or overhangs on February 21,
2011. Tr. 160.

Stating the corrective action by
Ludwig was to leave the area on Monday and come back on Wednesday, McAdam also
noted no overhangs or loose material on Wednesday. Tr. 162. He did not notify
anybody at Tuscola after he heard the noise on February 23, 2011 and stopped
the shot. Tr. 162-164.

On recross examination, McAdam
stated that he “probably” would not have worked loading shots beneath the area
of highwall depicted in the photograph in SX-5; but, from his vantage point he
had not seen the cracks depicted in the photograph. Tr. 165.

Michael Payton

At hearing, Michael Payton appeared
and testified on behalf of Respondent, Ludwig Explosives.

Payton was a member of the blasting
team on February 23, 2011. Although he was not present during the attempted
shot on February 21, 2011, he was aware that it had been cancelled. Tr. 172.

On February 23, 2011, a workplace
exam was conducted involving the shot, the highwall, and the face immediately
in front of the blast team. It was concluded that the workplace was safe. Tr.
174.

McAdam put on a safety harness and
proceeded to go onto the shot; Payton went to the opposite side behind the
truck. Tr. 174. Payton’s duties included spotting the highwall for any dangers
and being in control of the truck. Tr. 174-175.

Payton witnessed a rock off to his
left, to the west.[15]
Tr. 175. As soon as this happened, Payton warned Conder and Hatten of the
danger, and that was when the shot was called off. Tr. 175.

Payton found it difficult to
determine the distance the rock fell from the blasting because of his position.
Tr. 176. The blasting team spoke among themselves and decided to call the shot
off. Tr. 176.

Payton asserted that federal and
state regulations required that the team not leave a loaded shot. The team
planned to clean up the site and detonate. They placed cones up to warn
individuals not to enter the blast zone. Tr. 177-178. Hatten and the two MSHA
inspectors, however, went beyond the cones. When they approached, they were
told that the shot had already been called and the team was trying to formulate
an action plan to get material off of the shot and to get the shot detonated.
Tr. 179. The inspectors indicated that they had seen a rock fall, but Payton
was uncertain if this was the same rock he had seen falling. Tr. 179.

McAdam and Conder came down off the
shot, McAdam first having to get his harness. Tr. 179-180. McAdam explained to
the MSHA inspectors that material had to be removed. Tr. 180. Payton believed
it was Kevin LeGrand, Ackley’s supervisor, who decided that a manlift should be
used.[16]
Tr. 181. LeGrand was aware that the machine had been cited and tagged out. Tr.

182. Payton heard McAdam commenting that he was uncomfortable using the manlift
     approach. Tr. 184-185.

On cross examination, Payton
indicated that he had worked at Tuscola Mine “quite a few” times. Tr. 190. He
had seen water come over the highwall previously but had not seen rocks fall
off before the incident in question. Tr. 190.

As to his prior written statement at
SX-17, Payton explained that he was actually talking about shots having been
called off in the past due to water falling over the highwall, not
rocks.[17]
Tr. 192-193. Payton, however conceded that he had “probably” seen rock come off
the highwall at Tuscola Stone.[18]
Tr. 193-194.

Payton stated that it was
“absolutely” not Ludwig’s decision to use a manlift for retrieval of material,
that Kevin LeGrand had decided this was the safest way. However, he was unsure
whether McAdam had participated in the decision. Tr. 198.

On cross examination by Tuscola
Stone’s representative, Payton stated that he had been shooting at the mine
site for four years. Tr. 202. Tuscola Stone had always been cooperative
regarding operational or safety issues. Tr. 203.

On recross examination by the
Secretary, Payton confirmed that Ludwig had signed into the mine at 11:00 a.m.
on February 23, 2011, had performed a visual examination, and at 12:48, the
citation had been issued. SX-4. During this time period there had been a change
in conditions in that the rock had fallen; however, Payton could not determine
what caused the rock to fall. He believed it was “an act of God.” Tr. 205.

Justin Conder

At the hearing, Justin Conder
appeared and testified on behalf of the Respondent, Ludwig Explosives.

Conder was not at Tuscola Stone on
February 21, 2011. On February 23, 2011, he was part of the three-man blasting
team, together with Michael Payton and Rob McAdam. Tr. 210.

After Payton stated that a rock had
fallen, McAdam began to get the hose out of the hole. Conder waited for McAdam
to get out of the way. Tr. 211. Referring to the photograph contained in SX-11,
Conder stated that the picture depicted him and McAdam as they were trying to
pull the hose out. McAdam, as lead blaster, determined that this was the proper
corrective action. Tr. 212-213. Conder may have been bracing himself against
the quarry wall so McAdam could get out of the way. Tr. 214.

On cross examination by the
Secretary, Conder was asked about statements he had given in a June 8, 2011
interview. SX-19. In his written statement, Conder reported that he was about
four to five feet from McAdam when a chunk fell off between them. SX-19, p.2.

Conder testified that he did not
remember stating such. Tr. 217.

Rodney Hatten

At the hearing, Rodney Hatten
appeared and testified on behalf of the Respondent, Tuscola Stone. Hatten had
been a foreman at Tuscola Stone for two years and had worked at the mine for 22
years. Tr. 223.

As foreman, Hatten had
responsibility for the pit and quarry, and Jay Carter had responsibility for
the upper plant. Tr. 224.

On February 21, 2011, Hatten had
been contacted by McAdam who informed him that the shot could not go forward
due to water coming off the highwall. Tr. 225. Hatten denied that McAdam told
him anything about rocks falling off at the face, loose unconsolidated
material, cracks, or overhangs. Tr. 226.

On Tuesday, February 22, 2011,
Hatten did not observe any hazardous conditions associated with the north face
highwall. Tr. 228.

As a loader operator, Hatten had
calculated the size of the loose rock described in the citations as being
approximately 2.34 tons in weight and deemed it highly unlikely that a chunk
that size would fall. Tr. 228-229.

Hatten had been called by Shoemaker
on February 23, 2011, to accompany the MSHA inspectors during inspection. Hatten
was acting both as a foreman and miner’s representative. Tr. 229-230. Shoemaker
had other appointments and was not present for the entire inspection. Tr. 230.

When Hatten first met the
inspectors, he was not informed of any citation or imminent danger order. Tr.

233. Hatten overheard the inspectors talking to the blasters about loose rock
     and where the shot was going to be. Tr. 234. The inspectors did not want the blasters
     to go to where the shot would be because of consolidation. Tr. 235.

Hatten asked if he could bring a
manlift, and inspector LeGrand stated that it could be an option.[19]
Tr. 235-236. LeGrand did not demand such. Tr. 235-236.

Hatten thought that, given the
ditch in front of the shot area, a manlift with a pole could be used to
retrieve materials. Tr. 236. Despite the manlift having been tagged out,
LeGrand permitted its usage. Tr. 236. Another Tuscola Stone Company employee
named Jared actually operated the manlift while a Ludwig Explosives blaster
used the pole. Tr. 236-237. Hatten still, at this point, had not been advised
that a citation or imminent danger order were going to be issued. Tr. 238. Hatten
had not received any reports about the highwall on Tuesday or Wednesday. Tr.
240.

On cross-examination by the
Secretary, Hatten stated that he had not conducted a ground control examination
on February 23, 2011. Tr. 242.

Referring to his prior June 11,
2011 written statement, Hatten agreed that he visually observed rock fall from
the highwalls “during freezing and thawing times.” Tr. 244; SX-20. He went on
to explain that anytime in the wintertime in Illinois (including February)
there could be freezing and thawing. Tr. 245.

Noting that a crane would be
necessary to test a highwall 40 feet high for loose material, Hatten testified
that the wall had not been tested for loose material prior to the citation
issuance in 2011. Tr. 245.

Since Shoemaker had become
assistant manager, various increased safety measures had been initiated,
including the furnishing of safety vests, the erection of berms around
highwalls, highwall warning signs, and the purchase of a manlift. Tr. 248.

Alan Shoemaker

After consideration, Shoemaker
decided not to take the stand and testify on Tuscola Stone’s behalf.[20]
Tr. 252-253.

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 the 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 cite specific
evidence does not mean it was not considered).

Basic Legal Principles

The citations at issue in this case were both
marked as “Highly Likely,” “Fatal,” “High” negligence, with 2 persons affected,
Significant and Substantial (S&S), and “unwarrantable failure.” S&S is
described in section 104(d)(1) of the Act as a violation “of such nature as
could significantly and substantially contribute to the cause and effect of a
coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation
is properly designated S&S “if, based upon the particular facts surrounding
that violation, there exists a reasonable likelihood that the hazard
contributed to will result in an injury or illness of a reasonably serious
nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

As
is well recognized, in order to establish the S&S nature of a violation,
the Secretary must prove: “(1) the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard – that is, a measure of danger to safety
– contributed to by the violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a reasonable likelihood that
the injury will be of a reasonably serious nature.” Mathies Coal Co., 6
FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd.
133, 135 (7th Cir. 1995); Austin Power Co., Inc. v, Sec’y of Labor, 861
F. 2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

It
is the third element of the S&S criteria that is the source of most
controversies regarding S&S findings. The element is established only if
the Secretary proves “a reasonable likelihood the hazard contributed to will
result in an event in which there is an injury.” U.S. Steel Mining Co.,
Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be
based on the particular facts surrounding the violation and must be made in the
context of continued normal mining operations. Texasgulf, Inc., 10
FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6
FMSHRC 1573, 1574 (July 1984)). The Commission has provided additional
guidance: “We have emphasized that, in accordance with the language of
section 104(d)(1), 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., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

Further, “The Secretary need
not prove a reasonable likelihood that the violation itself will cause injury.”
and “the absence of an injury-producing event when a cited practice has
occurred does not preclude a determination of S&S” Cumberland Coal
Resources, LP, 33 FMSHRC 2357, 2365 (Oct.
2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC
1257, 1280-81 (Oct. 2010); Elk Run Coal Co., 27 FMSHRC 899, 906
(Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857
(June 1996)). The Commission and courts have observed that the opinion of an
experienced MSHA inspector that a violation is S&S is entitled to
substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 1275,
1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133,
135-36 (7th Cir. 1995).

The
S&S nature of a violation and the gravity of a violation are not
synonymous. The Commission has pointed out that the “focus of the seriousness
of the violation is not necessarily on the reasonable likelihood of serious
injury, which is the focus of the S&S inquiry, but rather on the effect of
the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550
(Sept. 1996) emphasis added. By definition, 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. A mine operator is required to be on the alert
for conditions and practices in the mine that affect the safety or health of
miners and to take steps necessary to correct or prevent hazardous conditions
or practices. The failure to exercise a high standard of care constitutes
negligence.

30 C.F.R. §100.3(d). The categories and definitions of the
negligence criterion are as follows:

No negligence is where the
operator exercised diligence and could not have known of the violative
condition or practice;

Low negligence is where the
operator knew or should have known of the violative condition or practice, but
there are considerable mitigating circumstances;

Moderate negligence is where
the operator knew or should have known of the violative condition or practice,
but there are mitigating circumstances;

High negligence is where the
operator knew or should have known of the violative condition or practice, and
there are no mitigating circumstances; and

Reckless disregard is where
the operator displayed conduct which exhibits the absence of the slightest
degree of care.

30 C.F.R. §100.3(d).

The unwarrantable failure terminology is taken from
section 104(d)(1) of the Act, which establishes more severe sanctions for any
violation that is caused by “an unwarrantable failure of [an] operator to
comply with…mandatory health or safety standards.” 30 U.S.C. § 814(d)(1).

The term “unwarrantable failure” is defined as
aggravated conduct constituting more than ordinary negligence. Emery Mining
Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or the “serious lack of reasonable care.” Id. at 2004; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,193-94
(Feb. 1991). Aggravating factors include the length of time that the violation
has existed, the extent of the violative condition, whether the operator has
been placed on notice that greater efforts were necessary for compliance, the
operator’s efforts in abating the violative condition, whether the violation
was obvious or posed a high degree of danger and the operator’s knowledge of
the existence of the violation. See Consolidation Coal Co., 22 FMSHRC
340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195
(Feb. 1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation
Coal Co., 23 FMSHRC 588, 593 (June 2001). All of the relevant facts and
circumstances of each case must be examined to determine if an actor’s conduct
is aggravated, or whether mitigating circumstances exist. Consol, 22
FMSHRC at 353.

a)      The
Secretary has Carried His Burden of Proof by a Preponderance of the Evidence
that §56.3200 was Violated as Cited in Citation No. 6555522

On February 23, 2011, Inspector Peter
Ackley issued Citation No. 6555522 against Respondent, Tuscola Stone Company,
for a 104(d)(1) violation of 30 C.F.R. § 56.3200. This citation, in pertinent
part, under Section 8, “Condition or Practice,” states as follows:

Two blasters were filling drill
holes with explosives approximately two feet from the base of the north
highwall. The highwall was about 40 feet high and composed of loose
unconsolidated material. There was a section of rock (about 1.5 feet thick, 4
foot high, and 5 foot long) with an 8 inch gap from the highwall above where
the blasters were working. Loose rock had fallen Monday (02/21/2011) when it
was raining and while drill holes were being loaded today. This condition
exposed the blaster to fatal impact or crushing injuries from falling rock. The
Lead Blaster had informed the Foreman on Monday (02/21/2011) of the unsafe
condition of the wall. The Foreman engaged in aggravated conduct constituting
more than ordinary negligence in that he was aware that the high wall had
unconsolidated material and failed to take any corrective action to correct the
unsafe condition of the wall. This violation is an unwarrantable failure to
comply with a mandatory standard. This violation is one of the factors cited in
imminent danger order No. 6555521[21]dated
02/23/2011. Therefore, no abatement time was set.

SX-4.

Section 56.3200 provides as
follows:

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.

30 C.F.R. §56.3200.

With respect to Citation No.
6555522, the Secretary presented sufficiently probative evidence of hazardous
conditions associated with the north highwall at Respondent’s Tuscola Stone
Company’s subject mine, that a violation of §56.3200 was clearly established.

At the hearing, Inspector Ackley
testified that he had performed inspections of the subject mine in February,
2011. Tr. 13-14. On February 23, 2011, while performing a regular inspection,
he observed two miners working at the base of a 40 foot highwall, directly
beneath loose, unconsolidated rock. Tr. 16-21. Ackley credibly described the
area above the miners as being fractured, broken vertically and horizontally,
with overhanging material. Tr. 16-22, 32, 59-60; SX-5, 6, 7, 9, 11.

Given the obvious and extensive
nature of the hazardous highwall conditions which reasonably could be expected
to result in death or serious physical injury, Inspector Ackley issued a verbal
107(a) imminent danger order to mine foreman Rodney Hatten. Tr. 42, 51, 52; see
also Order No. 6555528. This Court upholds the issuance of said order and
specifically finds that a reasonably prudent person, who, like Inspector
Ackley, was familiar with the mining industry and the protective purpose of
§56.3200, would have been warranted in ordering immediate evaluation of the
cited area.[22]

It is undisputed that there had
been no corrective measures undertaken to remove any loose rock prior to the
initiation of the activities described herein. Given Inspector Ackley’s own
observations and the inculpatory statements of several of Respondent’s
witnesses, discussed further below, there is more than sufficient evidence to
establish that §56.3200 had been violated. In reaching this conclusion, the
undersigned has considered that an inspector’s testimony, standing alone, if
found credible and reliable, may constitute sufficient evidence to prove the
existence of a safety violation and, indeed, its S&S nature. See Harland
Cumberland Coal Co., 20 FMSHRC 1275, 1278-1279 (Dec. 1998). The undersigned
also further notes that the “preponderance” standard only requires that the trier-of-fact
conclude the “existence of a fact is more probable that its non-existence.” RAG
Cumberland Resources Co., 22 FMSHRC 1066, 1070 (Sept. 2000). The Secretary
has convincingly carried its burden in the case sub judice.

b)      Respondent,
Tuscola Stone’s, Violation of §56.3200 was Significant and Substantial in
Nature

Taking into consideration the
record in toto and applying pertinent case law, the undersigned finds
that Tuscola Stone Company’s violation of §56.3200 was Significant and Substantial
in nature.

The first element of Mathies—the
underlying violation of a mandatory safety standard—has been clearly
established.

As to the second element of Mathies—a
discrete safety hazard, that is, a measure of danger to safety, contributed to
by the violation—has also been clearly established by the record. Loose
material falling from a 40-foot highwall onto miners is inarguably a discrete
safety hazard. Inspector Ackley’s observations and the statements of
Respondent’s own witnesses that individuals were standing at the base of the
north highwall and directly exposed to this hazard, established this second
element.

The third element of the Mathies
test – a reasonable likelihood that the hazard contributed to will result in an
injury – is usually the most litigated prong. The Commission has made it clear
that the “test under the third element is whether there is a reasonable
likelihood that the hazard contributed to by the violation…will cause injury.” Musser
Engineering Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010); see
also Cumberland Coal Resources LP, 33 FMSHRC 2357, 2365-2369 (Oct. 2011). The
Commission emphasized that the Secretary need not “prove a reasonably
likelihood that the violation itself will cause injury…” Id. Further,
the Commission reaffirmed the well-settled precedent that the absence of an
injury producing event, where a cited practice occurs, does not preclude an
S&S determination. Id. (citing Elk Run Coal Co., 27 FMSHRC
899, 906 (Dec. 2005) and Blue Bayou Sand and Gravel, Inc.,18 FMSHRC 853,
857 (June 1996)).

The undersigned is persuaded by the
Secretary’s argument that there was a reasonable likelihood that the hazard
contributed to would result in injury. See, inter alia, Secretary’s
Brief at 16. The testimony presented at hearing established that there had been
recent rainfalls, causing water to cascade over the highwall. Tr. 83, 85, 100,
149-150. It can be reasonably inferred that these large volumes of water had
the potential to further loosen already displaced rock, increasing the
probability of a rock fall. Although Inspector Ackley had not himself observe
actual rock falls, he had been informed of such by Robert McAdam, Justin
Conder, and Michael Schafer. Tr. 22; see also discussion of these witnesses’
testimony and statement infra.

Ackley was also informed by Alan
Shoemaker that it was common for freeze and thaw cycles during the time of year
when Respondent was cited, during which material would move off the wall. Tr.
41.

The fact that a rock or rocks did
in fact fall on February 23, 2011 near Ludwig employees convincingly
establishes that there was a reasonable likelihood that the hazard contributed
to would result in injury. Tr. 151, 210-212. Thus, the third element of Mathies
is clearly satisfied.

Under Mathies, the fourth
and final element that the Secretary must establish is that there is a
reasonably likelihood that the injury in question will be of a reasonably
serious nature. Considering, inter alia, the 40-foot height of the north
highwall and the size of some of the rock described in Citation No. 6555522—1.5
feet thick, 4 feet high, and 5 feet long—there was clearly a reasonably
likelihood of fatal impact injury. Tr. 34-35, 37; see also SX-4.

In reaching these findings, the
undersigned has also considered the testimony of Rodney Hatten. The undersigned
found credible Hatten’s testimony that he had visually inspected the highwall
on February 23, 2011. However, for reasons discussed infra, the
undersigned finds that such a visual inspection—without testing and scaling—was
manifestly inadequate. The ALJ also noted Hatten’s prior written statement that
he had previously witnessed rock falls from highwalls during “freezing and
thawing times” in the past. Such admission further supports that Tuscola Stone
should have known of the existence of a hazardous condition. See also
Tr. 244; SX-20.

Hatten’s testimony that a crane
would be necessary to test a 40-foot highwall for loose material and that no
such testing had been performed prior to February 23, 2011 was also indicative
that Respondent failed to take reasonable measures both in the past and
instantly to ensure safe ground conditions. Tr. 244-245.

Likewise, the undersigned accepts
that Hatten had himself decided to use a manlift in a good faith effort to
protect Ludwig’s employees in attempting to retrieve detonation materials. However,
the undersigned again notes that Hatten’s testimony raises questions about the
accuracy of Ludwig’s employees’ recollections, again casting doubt on their
overall credibility.

Although the undersigned found
Shoemaker to be sincere in his belief that his company had fulfilled its
§56.3200 duties, the undersigned had no actual in-court testimony to assess
because of Shoemaker’s decision not to take the witness stand. Tr. 252-253.

The undersigned therefore finds
that Inspector Ackley’s S&S designation was justified.

In reaching this finding the
undersigned specifically rejects the argument advanced by Tuscola Stone’s
representative and general manager, Alan Shoemaker. In his pro se brief,
Shoemaker suggests that the fact that Tuscola Stone’s “employees were not
directly involved at the time [that] the order and citations were issued,”
relieves Tuscola Stone of responsibility under the Mine Act. Resp. Brief at 1 .
However, given Tuscola Stone’s overall responsibility to reasonably ensure that
its highwall was free of hazards, the fact that Tuscola Stone’s employees were
not present at the scene when the instant citation and orders were issued does
not exculpate Tuscola Stone from its dereliction under §56.3200.[23]

Given, inter alia, reports
of rock falls in the past, the fact that the shot had to be postponed on
February 21, 2011, due to large volumes of water cascading over the highwall
and the potential for a freeze and thaw cycle which could further loosen
unconsolidated material, Tuscola Stone’s duties under §56.3200 would have
required thorough inspection, testing, and scaling of the highwall prior to the
commencement of detonation activities on February 23, 2011, as Inspector Ackley
properly opined. See, inter alia, Tr. 25-26, 39. Given the high degree
of danger posed by loose overhang rock on a 40-foot highwall, a simple visual
inspection of such was manifestly inadequate, falling far below the high
standard of care demanded of Respondent.

The undersigned found Shoemaker to
be a forthright individual who no doubt honestly believes that his company had
taken adequate measures to ensure miners’ safety at the highwall. However, mine
operators under the Act are held strictly liable for cited conditions in
activities from which they have supervisory responsibility. Ames
Construction, Inc., 33 FMSHRC 1807 (July 2011), aff’d, 676 F.3d 1109
(D.C. Cir. 2012). Tuscola Stone Company had overall responsibility to ensure
that any hazardous highwall conditions were discovered and corrected before
work was permitted in the affected area. Regardless of Shoemaker’s good-faith
beliefs, Respondent was derelict in fulfilling this responsibility.

c)      Tuscola
Stone’s Conduct was Highly Negligent in Nature and Constituted Unwarrantable
Failure on Respondent’s Part

In Sec. of Labor v. Manalapan,
Inc., 35 FMSHRC 289 (Feb. 2013), the Commission reviewed the factors to be
evaluated in determining unwarrantable failure:

In Emery Mining Corp., 9
FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure
is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as “reckless
disregard,” “intentional misconduct,” “indifference,” or a “serious lack of
reasonable care.” Id. at 2003-04; Rochester & Pittsburgh Coal Co.,
13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v. MSHA,
52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure
test).

Whether conduct is “aggravated” in
the context of unwarrantable failure is determined by looking at all the facts
and circumstances of each case to see if any aggravating factors exist,
including (1) the extent of the violative condition, (2) the length of time
that the violative condition existed, (3) whether the violation posed a high
degree of danger, (4) whether the violation was obvious, (5) the operator’s
knowledge of the existence of the violation, (6) the operator’s efforts in
abating the violative condition, and (7) whether the operator had been placed
on notice that greater efforts were necessary for compliance. See IO Coal
Co., 31 FMSHRC 1346, 1351-57 (Dec. 2009); Cyprus Emerald Res. Corp.,
20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42
(D.C. Cir. 1999). These seven factors need to be viewed in the context of the
factual circumstances of a particular case, and some factors may be irrelevant
to a particular factual scenario. Consolidation Coal Co., 22 FMSHRC 340,
353 (Mar. 2000). Nevertheless, all of the relevant facts and circumstances of
each case must be examined to determine if an operator’s conduct is aggravated,
or whether mitigating circumstances exist. Id.; IO Coal, 31
FMSHRC at 1351.

Id. at 5.

Considering the Manalapan
factors seriatim, the undersigned finds that the violative condition was
obvious and extensive and had existed for a significant period of time.[24]
The violation clearly posed a high degree of danger, justifying the issuance of
an immediate 107(a) imminent danger order. The undersigned notes that the
commission in Manalapan reaffirmed that the factor of dangerousness may
be so severe that by itself it warrants a finding of unwarrantable failure. Manalapan,
at 294.

Given the fatal nature of impact
injuries by the hazardous conditions at Respondent’s 40-foot highwall, the
undersigned finds that this aggravating factor of dangerousness outweighs any
mitigating circumstance. Further, as discussed infra, both Respondents knew
or should have known of the existence of the conditions. The operator
did make good faith efforts to abate the condition, which although not
justifying a non-unwarrantable failure finding, does in part merit a reduction
in the proposed civil penalty.

The undersigned therefore finds
that Respondent’s conduct did constitute an unwarrantable failure.

d)     The
107(a) imminent danger order was validly issued; Respondent, Ludwig Explosives,
Also Violated §56.3200; This Violation also was S&S in Nature and Constitute
an Unwarrantable Failure

The undersigned incorporates the
above rationale as to the violation, S&S nature, and unwarrantable conduct
of Respondent, Tuscola Stone, in further finding the dual responsibility of
Respondent, Ludwig Explosives. The undersigned further fully adopts the
arguments advanced by the Secretary that Ludwig Explosives violated mandatory
safety standard §56.3200, that said violation was significant and substantial
and reasonably likely to cause fatal injuries to two persons, and that said
conduct constituted an unwarrantable failure. Sec. Post-Hearing Brief, 18-20. Furthermore,
the imminent danger order was validly issued.

In making the instant findings, the
undersigned has carefully considered the testimony of all witnesses, including
an assessment of their credibility.

The undersigned found the testimony
of Secretary’s witness, Inspector Ackley, to be honest and forthright, with no
indication of animus or untoward motivation.

However, the undersigned found the
testimony of Respondent, Tuscola Stone’s, witnesses to be less than fully
credible. Respondent’s witnesses gave testimony which was often both inherently
contradictory and also inconsistent with their past unwritten statements. The
undersigned suspects that Respondent’s witnesses were attempting to minimize
the dangerous and unsafe character of the cited condition and their knowledge
regarding such.[25]

Michael Payton’s testimony
exemplifies such. On cross examination, Payton painfully equivocated in
admitting that he had witnessed rock falls in the past from Tuscola Stone’s
highwall. Tr. 188-189. His vague descriptions of the rock fall that he had
witnessed on February 23, 2011, despite his close proximity to the scene simply
did not ring true.

Michael Schafer’s testimony was
also equivocal and contradictory. As noted supra, Schafer appeared to
vacillate between the position that water cascading over the highwall was a
hazard and was also not a hazard. Tr. 125-131. In any case, Schafer was not
personally present at the scene on February 21, 2011 or February 23, 2011, his
testimony has little probative weight.

The undersigned also found the
testimony of Robert McAdam and Justin Conder to be suspect. In a prior June 8,
2011 written statement, Conder averred that on June 23, 2011, a chunk of rock
fell between himself and McAdam, who was standing only four to five feet away
from Conder. SX-16. Yet at hearing, Conder claimed he could not remember making
such a statement. Tr. 216. As trier-of-fact, this Court questions whether an
individual who narrowly escaped serious injury and possible death could not
recollect such an incident. Further, McAdam’s assertions that he could not
determine the distance of the rock fall were also highly problematic, casting
doubt upon his entire testimony.

As trier-of-fact, the undersigned
should attempt to resolve inconsistencies in testimony without concluding that
witnesses are lying. However, in the instant case, the most reasonable benign
explanation for the differing and contradictory nature of the witnesses’
accounts is that there were in fact different multiple rock falls on
February 23, 2011. This explanation is just as detrimental for Respondent’s
cause, inarguably confirming the high degree of danger posed by the unscaled
highwall.

The undersigned essentially concurs
with the arguments advanced by the Secretary as to Ludwig Explosives’
negligence. Ludwig’s employees were well aware that large volumes of water had
been cascading over the highwall on February 21, 2011, causing the shot to be
cancelled. The undersigned further finds that Ludwig Explosives’ employee knew
of the freeze and thaw cycles in winter time in Illinois.

The heavy downpour on February 21,
2011, coupled with the succeeding drying out cycle, posed a danger that debris
and/or loosened material might be created that could fall from the highwall
onto miners working below on February 23, 2011. That a rock or rocks did fall
on February 23, 2011 confirms that such a hazard was reasonably foreseeable. The
undersigned specifically rejects any suggestion by Respondent that the rock
fall on February 23, 2011 was merely a coincidence or unforeseeable “act of
God.”[26]

Given such, Ludwig Explosives
personnel should have known that a hazard of falling rock was existent subsequent
to the February 21, 2011 downpour.

Just as Tuscola Stone was derelict
in failing to inspect, test, and scale the highwall on February 23, 2011 before
individuals would be permitted to work in the affected area, Ludwig was equally
derelict in failing to wait for such corrective actions to be completed before
proceeding to engage in its shot activities. Further, compounding its
negligence was Ludwig’s blasting team’s decision not to immediately evacuate
the affected area after a rock or rocks had fallen.

As a finding of fact, the
undersigned rejects Ludwig’s argument and testimony suggesting it had not
entered the affected area and was in the process of evacuating such when
sighted by Inspector Ackley. Instead, either because the blasting team did not
wish to waste assets and/or felt the need to immediately detonate the shot, it
improperly entered and remained in the affected area. Any prudent person, familiar
with the mining industry, would not have entered the affected area, much less
remained after a rock fall. The prudent course would have been to immediately
evacuate to a safe distance from the affected area for a reasonable time and
assess overall conditions before proceeding with any further work activity.

e)      Penalty

In a recent decision, this Court
opined that whether the Secretary proposes a regularly or specially assessed
penalty the ultimate determination of the penalty amount is up to the
Commission. The American Coal Co., LAKE 2011-701 et al, slip op., at 33 (September 20, 2013) (ALJ Lewis). This Court
is guided in its final determinations by the polestar of 30 U.S.C. §820(i)
penalty considerations:

In assessing civil monetary penalties,
the Commission 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.

The undersigned has
been further guided by Commission case law instructing how §110(i) criteria
should be evaluated. Inter alia, the undersigned notes: the
Commission’s holding in Thunder Basin Coal Co., 19 FMSHRC 1495, 1503
(Sept. 1997) that all of the statutory criteria must be considered, but not
necessarily assigned equal weight; and the Commission’s holding Musser
Engineering, 32 FMSHRC at 1289 that, generally speaking, the magnitude of
the gravity of the violation and the degree of operator negligence are
important factors, especially for more serious violations for which substantial
penalties may be imposed.

The undersigned in assessing the
§820(i) penalty considerations, finds that both respondents demonstrated good
faith in achieving rapid compliance after notification of the violation and
that neither Respondent appears to be a significant recidivist in terms of
previous violations. The undersigned therefore finds that a reduction in the
penalty is warranted for Ludwig Explosives from $20,900.00 to $15,900.00, and
for Tuscola Stone from $11,900.00 to $9,000.00.

ORDER

It is hereby ORDERED that Imminent Danger
Order No. 6555528 is hereby AFFIRMED.

It is hereby ORDERED that Citation
Nos. 6555522 (Tuscola Stone) and 6555529 (Ludwig Explosives) are AFFIRMED
as modified herein.

Respondent, Ludwig Explosives is ORDERED
to pay civil penalties in the total amount of $15,900.00 within 30 days of the
date of this decision.

Respondent, Tuscola Stone is ORDERED
to pay civil penalties in the total amount of $9,000.00 within 30 days of the
date of this decision.[27]

/s/
John Kent Lewis

John
Kent Lewis

Administrative
Law Judge

Distribution:

Nadia Hafeez, Esq., U.S. Dept. of Labor, Office of the
Solicitor, 1999 Broadway, Suite 800, Denver, CO 80202-5708

Alan R. Shoemaker, Tuscola Stone Co., 1199 US Hwy 36, Tuscola, IL 67953

Daniel P. Foltyniewicz, Ludwig Explosives, Inc., P.O Box
5312, Wheaton, IL 60189

[1] The hearing transcript will hereinafter be referred
to as “Tr.” followed by page number.

[2] Multiple Bench methodology is a “method of quarrying
a rock ledge in a series of successive benches or steps.” Dictionary of Mining,
Mineral, and Related Terms (2nd Edition).

[3] As noted infra, Shoemaker was not present
during the entire inspection. At hearing Hatten also identified himself as a
miner’s representative. Tr. 230.

[4] Secretary’s exhibits will hereinafter be referred to
as “SX” followed by the exhibit number. Respondent, Tuscola Stone’s, exhibits
will hereinafter be referred to as “TSX” followed by the exhibit number. Respondent,
Ludwig Explosives’, exhibits will hereinafter be referred to as “LX” followed
by the exhibit number.

[5] This photograph was actually taken by LeGrand in the
presence of Ackley. Tr. 18.

[6] In quarry mining, a shot is an explosive charge in
place for detonation.

[7] See also abatement description at Tr. 53: “[T]hey did
a mechanical scaling of the high wall with a backhoe for the section that
wasn’t as tall, and for the taller sections they used a crane and they drug a
track up and down, knocking loose material down from the high wall.”

[8] See discussion of decision to utilize this
piece of equipment at Tr. 78-80, 89, 101; See also McAdam written
statement at SX-15, describing use of manlift with plastic shovel taped to a
long pipe.

[9] As discussed infra, the pertinent point is not
that a miner using a JLG or a miner on foot could, if they perceived the
condition to be unsafe, both reasonably withdraw from the affected area. The
critical question, given this case’s particular circumstances, is whether
blasters standing close to the base of a highwall with a ditch near them could
withdraw as quickly and safely as individuals who already had been evacuated
from the immediate area beyond the ditch or as an individual in a manlift
extending over the ditch.

[10] At hearing, Shoemaker objected, on behalf of Tuscola
Stone, to the admission of SX-13 on the grounds that he had, in fact, not
denied his responsibility to check the walls. As noted infra, however
Shoemaker ultimately chose not to take the witness stand under oath.

[11] Schafer’s testimony on this point was somewhat
contradictory. He also stated that water cascading off the top of a highwall
“could be” a hazard if workers were directly under it. Tr. 129. A “gushing wave
of water coming over the face” might also prevent a shot. Tr. 131.

[12] As discussed infra, McAdam’s assertion on this
point appears directly contradicted by the reported statement of Conder on June
8, 2011. Conder indicated that on February 23, 2011 he was standing two feet
from the highwall, and McAdam was four to five feet from him when a chunk of
rock fell between them. If Conder’s written statement was an accurate depiction
of events, McAdam’s failure to recollect such a traumatic event strains
credulity. See also SX-6.

[13] Detonating caps initiate the firing of the explosive
material in the hole. Tr. 141.

[14] As discussed infra, if McAdam had notice on
February 21, 2011, that the volume of water cascading over the highwall may
have loosened material, he should not have proceeded with the shot on February
23, 2011 before making certain that Tuscola Stone had tested and scaled the
wall.

[15] The undersigned again notes the differing
descriptions of the rock fall between McAdam, Conder, and Payton, which, among
other interpretations, raises the possibility that there were multiple rock
falls on February 23, 2011. This confirms the high degree of danger that was
posed by the unscaled highwall.

[16] Ackley noted, infra, that it was in fact
Hatten who proposed use of the manlift.

[17] Payton wrote in his June 8, 2011 written statement:
“While working at Tuscola Stone Company I have observed rock falling from the
highwall. At that point we refused to load the shot and notified Rodney Hatten
the foreman. This has happened more than one time. I cannot give you the
exact number. SX-17, p.2 (emphasis added).

[18] Payton’s equivocations on this point made him a less
than fully credible historian.

[19] Again, Hatten’s confirmation that it was his idea and
not a collective decision or MSHA decision to utilize a manlift appears to
contradict various other witnesses for Respondents.

[20] The undersigned draws no adverse inference from
Shoemaker’s decision not to testify.

[21]
The records do not indicate that Tuscola
initially contested imminent danger Order No. 6555521.

[22] Section 3(j) of the Mine Act defines “imminent
danger” as the “existence of any condition or practice in a coal or other mine
which could reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated.” 30 U.S.C. § 802(j). To
support a finding of imminent danger, an inspector must conclude that “the
hazardous condition has a reasonable potential to cause death or serious injury
within a short period of time.” Utah Power & Light Co., 13 FMSHRC
1617, 1622 (Oct. 1991). In reviewing an inspector’s finding of imminent danger,
the Commission must support the inspector’s determination “unless there is evidence
that he has abused his discretion or authority.” Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2164 (Nov. 1989) (quoting Old Ben Coal Corp.
v. Interior Bd. Of Mine Op. App., 523 F.2d 25, 31 (7th Cir.
1975) (emphasis omitted)). The Commission has held that an “abuse of
discretion” is found when “there is no evidence to support the decision
or if the decision is based on an improper understanding of the law.” Energy
West Mining Co., 18 FMSHRC 565, 569 (Apr. 1996) (Citations omitted and
emphasis added) (affirming the judge’s determination that the inspector did not
abuse his discretion when he issued an order extending abatement time).

[23] See also the case law and arguments of Secretary,
which are on point and the undersigned fully agrees with at Secretary’s Brief,
8-9.

[24] See also Ackley testimony at Tr. 38, estimating the
violative condition had existed for “at least…a couple of weeks, maybe longer.”

[25] This Court believes that the possibility that an
employee is “sugar-coating” his descriptions of unsafe conditions in a
misguided attempt to protect his employer’s interests is unfortunately a
necessary consideration in assessing credibility.

[26] Payton’s description of such, at Tr. 205, reminds the
undersigned of the unenlightened pre-Mine Act days when the beknighted
explanation for all mining catastrophes was “It’s God’s will.”

[27] Payments 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