Secretary of Labor v. WM D. Scepaniak, Inc.

Plain-English summary

Two newly trained dump-truck drivers repeatedly backed across loose overburden toward a 20-foot drop without berms, bumper blocks, or other devices to stop overtravel. Their supervisor watched and directed the work while the usual dozer was unavailable, relying on radio warnings and deep ruts rather than physical protection. Judge Margaret A. Miller found that the trucks could slide, overturn, or back over the edge, making the violation S&S and highly dangerous. She also found high negligence and unwarrantable failure because management created and observed the obvious condition without trying to correct it. The Judge affirmed the citation and increased the proposed $2,000 penalty to $2,500.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9301
• Outcome: The S&S, high-negligence, unwarrantable-failure citation was affirmed with a $2,500 penalty.
• Key point: Radio spotters and vehicle ruts are not substitutes for berms or other physical overtravel protection at an elevated dumping location.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, CO 80202-2536

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

July
13, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION, (MSHA),

Petitioner,

v.

WM D. SCEPANIAK, INC.,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. LAKE 2015-138

A.C. No. 21-02760-364875

Mine: Plant 2

DECISION

Appearances:               Emily Hays, United States Department of Labor,
Office of the Solicitor, Denver, Colorado, for Petitioner;

Aaron Dean, Moss & Barnett,
Minneapolis, Minnesota, for Respondent.

Before:                                    Judge Miller

This case is before
me upon a petition for assessment of a civil penalty under section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). This docket
involves one 104(d)(1) citation with a total proposed penalty of $2,000.00.  The
parties presented testimony and evidence regarding the single citation at a
hearing held in Minneapolis, Minnesota.

I.
 FINDINGS OF FACT AND CONCLUSIONS OF LAW

Wm. D Scepaniak, Inc.’s
Plant 2 is a surface sand and gravel operation located in Norman County,
Minnesota. The parties have stipulated to the jurisdiction of MHSA and the
Commission. Sec’y Prehearing Report 2; Respondent Prehearing Report 3.

Citation No. 8847805
was issued by Inspector Wilbert Wayne Koskiniemi on August 12, 2014 pursuant to
section 104(d)(1) of the Act for an alleged violation of 30 C.F.R. § 56.9301. The
citation alleges that two dump trucks were backing up to the edge of an overburden
dump without berms, bumper blocks or other safety devices in place to stop the
trucks from going over the edge and down the twenty foot drop to the pit below.
Koskiniemi determined that the condition was reasonably likely to result in a
fatal injury, affected one miner, was S&S, and was the result of the
operator’s high negligence and unwarrantable failure to comply with the
mandatory standard. The Secretary has proposed a civil penalty in the amount of
$2,000.00 for the alleged violation.

For the reasons
that follow, I affirm the citation, find that the violation was S&S, and
find that the violation was a result of the operator’s high negligence and
unwarrantable failure to comply with the mandatory standard.

The Violation

On August 12,
2014 MSHA Inspector Wayne Koskiniemi was driving near Respondent’s Plant 2 on
his way to inspect another operation. While on the road near the plant, Koskiniemi
observed two caterpillar dump trucks backing up in an area of loose,
unconsolidated overburden material. The trucks were backing to the edge of an
overburden dump and then dumping their loads down a twenty foot bank to the
area below. There were no berms, bumpers or other safety devices in the area which
would have prevented overtravel. Koskiniemi stopped his car, took a photo of one
of the trucks dumping over the edge, Sec’y Ex. 6, Photo 1, and turned around to
travel to Respondent’s mine.

Wayne Koskiniemi
has been a mine inspector for three years, and routinely inspects sixty sand
and gravel operations each year. Prior to being trained as a mine inspector he
worked in the mining industry and owned and operated an excavating company. He also
worked as a police officer for 22 years, retired as a police chief, and spent
time as a marshal.

When Koskiniemi
entered the mine he observed two large haul trucks traveling from the load site
in the work area to the overburden dump site, and dumping dirt and material
while driving on the loose overburden material. He testified that he saw two
trucks repeatedly back up to the edge of a twenty foot high bank, with no berm,
bumper or other guard in place to prevent overtravel, and dump their load over
the edge.  Koskiniemi located a foreman, Eric Luethmers, waiting nearby in the
cab of a front end loader. The inspector approached Luethmers and advised him
that the trucks must stop dumping immediately and that an imminent danger order
was being issued. Luethmers indicated that he had radio contact with the drivers
and instructed them to stop dumping. At that point, one of the trucks pulled
over to the edge and began dumping from the side of the truck. The truck, as
observed by Koskiniemi, is pictured in Sec’y Ex. 6, Photo 3. In Koskiniemi’s
view, dumping from the side was even more dangerous than from the back since
the side of the truck was raised shifting the weight in that direction, over
the embankment.  The dump truck was in the loose overburden material, directly
next to the edge of the dumping area. Luethmers told the inspector that he was
the on-site supervisor and he had instructed the drivers to dump as they were
doing. Luethmers explained that the dozer, which usually moved the overburden
from the dump location to the edge and over, also normally created a berm to
prevent the trucks from backing too close to the edge.  On the day of the
inspection the dozer was down for repairs, and had been down since the previous
week.  Luethmers explained to the inspector that it was too difficult to move
the dirt with the front end loader and, instead, he was watching the drivers
and calling them by radio if he observed them drive too close to the edge or saw
that they were sinking into the soft ground. 

After speaking
with Luethmers and one of the angry mine owners by telephone, Koskiniemi spoke
to each of the dump truck drivers. Both of the drivers had less than one year mining
experience, and their experience was not as truck drivers, but primarily as
welders in the shop.  Each driver had been task trained to drive a dump truck
about one week prior to this incident, and their experience was limited to
driving on the pit floor, not dumping in overburden above a twenty foot bank.  The
drivers indicated to Koskiniemi that, as they backed up, they were looking into
the sun and often had to put their head out the window of the cab to see. At
hearing both drivers testified on behalf of the mine operator and offered a bit
more, but slightly different version of facts.  At hearing, each driver stated that
they were instructed to back up to within 7-8 feet of the dump, and not go
right up to the edge. They said they were told to drive as close to the edge as
they felt comfortable and that Luethmers would call on the radio if he saw them
drive too close to the edge or start to sink in the soft material. The
overburden pile on which they were driving was not compacted so the trucks often
got stuck in deep ruts that were one to two feet deep, causing the drivers to have
to move forward in an attempt to maneuver the trucks out of the ruts in order to
get closer to the edge to dump.

The drivers believed
the wheels of each truck stayed eight feet from the edge, but agreed that the
bed of the truck may have been closer to the edge when dumping the material. They
both indicated there was a “slight” berm where they were dumping the overburden
each time.  However, because they were told to stay out of the ruts, they
dumped at different locations along the edge with each pass.  Both drivers had
been working at this task from the beginning of the shift, and each had
completed approximately ten dumps prior to the arrival of the inspector. Based
upon his conversation with Luethmers, the inspector believed the mine had been dumping
material in a similar manner on previous days, but the two drivers confirmed
that this was their first day dumping overburden, and the first working day
that the dozer was not on site to push the overburden. While Luethmers told the
inspector that he was using the front end loader to level out the driving area
and clean up the ruts, he did not suggest that he was using it to create berms
or push the overburden over the edge. Rather, he told the inspector that it was
difficult to push the material with the front end loader.

Koskiniemi explained
that the trucks traveling near the edge as he observed, were certain to go over,
slip or slide in the loose material, or overturn. In either instance, the
driver would be killed. Based on his observations, Koskiniemi issued Citation
No. 8847805 for a violation of section 56.9301 which requires that berms,
bumper blocks, safety hooks or other impeding devices be provided at dumping
locations where there is a hazard of overtravel. 30 C.F.R. § 56.9301. An
imminent danger order was issued at the same time, but the operator did not
contest that order.

The Secretary
argues that, based upon the inspector’s observations, and as demonstrated in
the photographs, the violation was obvious. There is no question that berms or
bumpers were not present and that a truck could easily overtravel, or even
slide in the loose material as it got close to the edge.  The Secretary argues
that the mine was going to continue operating the trucks in this manner and
that it was highly likely that a truck would overtravel or overturn while
backing over the loose material to get close to the edge to dump. The operator
argues that there was no violation because there was no hazard of overtravel
and, therefore, there was no need for a berm or bumper block to prevent the
trucks from backing over the edge as they dumped. Further, the front end loader,
and not the trucks, was moving dirt to the edge and, as result, there was no
possibility of overtravel. The mine also argues that the dumps made by each
truck sometimes created a “berm,” that the trucks were not as close to the edge
as the inspector suggested and that sinking into the loose dirt created a kind
of rut, or bumper, that would protect the trucks from backing up too close to
the edge.

I find that a
violation of the standard occurred. While the mine argues that there were some
berms present, I credit the inspector’s testimony that there were no berms or spoil
piles that were high enough to be considered berms. Further, there were no
bumper blocks, hooks or other devices in the area to prevent overtravel. I find
no argument made by the operator to be persuasive. Moreover, I find the
inspector to be credible, and his photographs clearly show the dump trucks
dangerously close to the edge. I find that there is a clear danger of overtravel
and that berms at the correct height, or other devices to prevent overtravel,
were required in this area. I find that there were no such protections in place.
I do not accept the mine’s argument that the trucks sinking into the soil up to
a depth of two feet created a block or bumper to prevent overtravel. That
argument by the mine owner is clearly contrary to the testimony of the dump
truck drivers who agreed that they tried to maneuver the trucks out of the deep
ruts in order to back up closer to the edge to dump.  In addition, I reject the
mine’s argument that the photographs show that tracked equipment, not trucks,
were close to the edge of the dump. The photo referred to shows only one
portion of the dump area, and, even if the tracks nearest the edge were made by
a tracked piece of equipment there were tire tracks immediately next to those
and dangerously close to the edge of the bank.  Given the photos and the
inspector’s observations, I find that the trucks were close to the edge, that
there was a very real hazard of overtravel, and no berms, bumper blocks, safety
hooks or other impeding devices were present. Therefore, I affirm the
violation.

S&S
and Gravity

Scepaniak argues
that there is no evidence that there was a hazard of overtravel or of the truck
overturning while dumping and, consequently, there is no evidence that the
violation was S&S. The Secretary argues that, because the large dump trucks
were traveling in unconsolidated material, and backing very close to the edge
to dump their loads, without any means to prevent overtravel, they were very
likely to back over the edge, and any fall off of the twenty foot high ledge in
a large dump truck would have resulted in injury or death to the driver.  I
agree that it is likely that, if the trucks continued to operate as observed by
the inspector, one would back over the edge, resulting in death or serious
injury to the miner. Accordingly, I find that the violation is significant and
substantial.

A
“significant and substantial” violation is described in section 104(d)(1) of
the Mine 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)(l). A violation is properly designated significant
and substantial “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 Division,
National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

In Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission explained its
interpretation of the term “significant and substantial” to be:

In
order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard--that is, a measure of danger to
safety--contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood
that the injury in question will be of a reasonably serious nature.

The difficulty
with finding a violation S&S normally comes with the third element of the Mathies
formula, in which the Secretary must establish that there is a reasonable
likelihood that the hazard will result in an injury. The Commission has
explained that the third element of the formula “requires that the Secretary
establish a reasonable likelihood that the hazard contributed to will result in
an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6
FMSHRC 1834, 1836 (Aug. 1984). The Commission discussed the third element of
the Mathies test in Musser Engineering, Inc. and PBS Coals, Inc.,
32 FMSHRC 1257 (Oct. 2010) (affirming an S&S violation for using an
inaccurate mine map). The Commission clarified that the “Secretary need not
prove a reasonable likelihood that the violation itself will cause injury” but
that the hazard created would cause an injury. Id. at 1280-81. The
Commission reaffirmed its position in Cumberland River Coal, 33 FMSHRC
2357, 2365 (Oct. 2011) where it “emphasized the well-established precedent that
‘the absence of an injury-producing event when a cited practice has occurred
does not preclude a determination of S&S.’” (citing Elk Run Coal Co.,
27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc.,
18 FMSHRC 853, 857 (June 1996)).

The
overwhelming weight of the evidence shows that an accident was highly likely to
occur. Koskiniemi testified that the trucks backing up in the loose soil, to
within feet of the edge, would at any time travel over the edge. There was no
berm or other safety device in place to prevent overtravel, and, if a truck
went over the edge, it would result in a serious accident. Koskiniemi testified
that the drivers were both new to driving a large dump truck. They had been
task trained to do the job on the level floor of the pit just the week prior,
and this was the first instance they worked at this task of dumping atop the spoil
pile. The drivers had difficulty using their mirrors, were looking out the side
windows of the truck, and were looking into the sun. I find that drivers in these
circumstances could easily misjudge the distance, or come close enough to be
caught in the loose soil and slide or fall over the edge. As the truck dumped,
the weight of the load shifted toward the edge of the pile. The two drivers
were told to drive about 7-8 feet to the edge, or to a distance that was
comfortable. It is clear from the photos taken by the inspector that the wheels
were dangerously close to the edge and, when the bed of the truck was raised to
dump, the bed was right at the edge.  The inspector observed one truck dumping to
the back and then another, dumping its load to the side directly at the edge.  He
also observed tire tracks near the edge of the dump site. There were no berms
in place to keep the trucks from backing too far, or from going over the edge as
they dumped their loads. The work of dumping had been going on since the start
of the shift and would have continued had the inspector not observed the
actions of the mine as he drove by. Under these circumstances, I find it highly
likely that one of the trucks would have overtraveled the area, or would have
slid with the loose material at the edge as it dumped.  The hazard associated
with overtravel of the large trucks is falling over the edge, landing in some
fashion at the bottom, thereby causing serious injury or death to the driver.

The Commission has
recognized the serious nature of trucks backing to the edge without berms to
prevent overtravel. In Buffalo Crushed Stone, Inc., 16 FMSHRC 2043 (Oct.
1994), the Commission, in overturning a judge’s finding that a violation was
non-S&S, found that the lack of adequate berms near the edge of a
stockpile, combined with the shift in weight that trucks experience as they
dump their loads at the edge of a stockpile, made it reasonably likely that an
injury producing event would occur. While in Buffalo Crushed Stone berms
of inadequate height were present, here, there were no berms in place.

Koskiniemi
testified that he is aware of at least two similar situations where a truck
backed to the edge and went over the side, killing the driver. One incident
occurred shortly after the citation was issued. In that incident, the truck
driver, who had more than ten years of experience, was killed when he backed a haul
truck to the edge of the overburden dump site and started to raise the truck’s
bed. The bank failed and the truck overturned and fell thirty feet below. Sec’y
Ex. 8.  A similar accident occurred several years before the citation at issue when
a driver backed his truck to the edge of a stockpile to dump, went over the
crest, and fell 30 feet below, killing the driver. Sec’y Ex. 10.

Respondent
did not contest the imminent danger order that was issued alongside this
citation. While the Commission has explained that the failure to contest an
imminent danger order does not, by itself, establish the validity or S&S
designation of a related citation, see e.g., Wyoming Fuel Co., 16 FMSHRC
1618, 1625-26 (Aug. 1994), it has held that what constitutes an imminent danger
involves an element of impending danger that does not necessarily need to exist
to sustain an S&S designation for a violation, Eastern Associated Coal
Corp., 13 FMSHRC 178 (Feb. 1991), and that the conditions necessary to
establish a S&S finding are “very distinct from, and far less dangerous
than, those” which are necessary to find an imminent danger. Consolidation
Coal Co., 35 FMSHRC 2326, 2340 (Aug. 2013). Accordingly, here, while the
mine’s acceptance of the imminent danger order does not establish the S&S
nature of the citation, it does carry some weight with regard to the mine’s
acknowledgement regarding the seriousness of the cited condition.

I have found that a
violation of a mandatory standard occurred and that the violation would result
in a dump truck traveling over the edge of a twenty foot drop. The inspector
explained that a large dump truck dropping to the bottom would be violent and
would undoubtedly result in death to the driver. Therefore, I find that the
violation was significant and substantial.

Unwarrantable
Failure and Negligence                                                                                           

Koskiniemi observed
the trucks from the road, and immediately saw that they were backing up dangerously
close to the edge of the dump site. The trucks were driving on loose, unconsolidated
material. He learned that the mine management, who had purportedly tasked
trained the two drivers just days before, was aware of the way the dumping was
progressing. The inspector spoke with the immediate supervisor, who was in a
front end loader watching the trucks dump. The supervisor told the inspector
that he had instructed the trucks how and where to dump. The drivers had been
instructed to back the trucks to the edge of the dump to unload and, therefore,
the inspector believed this conduct to be aggravated. There were no berms, bumpers,
or other measures in place to prevent the trucks from overtraveling the area
and falling into the water below.  Based on his observations and the
information he learned from the supervisor, Koskiniemi designated the citation
as high negligence and an unwarrantable failure to comply with the mandatory
standard. 

The
unwarrantable failure terminology is taken from section 104(d) of the Act, 30
U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. 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 conduct described 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., 52 F.3d at
136 (approving Commission’s unwarrantable failure test). The Commission has
explained that whether a citation is an “unwarrantable failure” is a question
that should be evaluated based on the facts and circumstances in each case, and
in light of each of the following factors: 1) the length of time that the
violation has existed; 2) the extent of the violative condition; 3) whether the
operator has been placed on notice that greater efforts were necessary for
compliance; 4) the operator’s efforts in abating the violative condition; 5)
whether the violation was obvious or posed a high degree of danger; and 6) the
operator’s knowledge of the existence of the violation. See Consolidation
Coal Co., 22 FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346
(Dec. 2009). 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. Because
supervisors are held to a high standard of care, another important factor
supporting an unwarrantable failure determination is the involvement of a
supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar.
1998) (Commissioner Marks, concurring in part and dissenting in part).

Based on the
following analysis of the factors outlined by the Commission, I find the
violation was a result of the mine’s high negligence and unwarrantable failure
to comply with the mandatory standard.

Length of
time that the violation has existed. In IO Coal Co., 31 FMSHRC 1346
(Dec. 2009) the Commission emphasized that the duration of time that the
violative condition existed is a “necessary element” of the unwarrantable
failure analysis. There, the Commission noted that the presiding judge had
failed to address the duration of the violative condition as a factor in his
unwarrantable failure analysis. The Commission, in remanding the case,
instructed the judge to address the duration of the violative roof condition,
which was found to have existed for multiple shifts and days, and determine if
that duration qualified as an aggravating factor. However, the Commission
explained that the court, in conducting its analysis of the duration factor
could be affected by the operator’s reasonable “good faith” belief that the
violative condition, in that case kettle bottoms, did not exist. In Coal
River Mining, LLC, 32 FMSHRC 82 (Feb. 2010), the Commission further
explained that, even where the record of a case does not allow a judge to make
a determinative finding with regard to how long a violative condition existed,
the judge must analyze the element and “even imperfect evidence of duration in
the record should be taken into account[.]” While the Commission has found that
a duration of a “matter of seconds” may weigh against an unwarrantable failure
finding, it has also held that even a duration of a few minutes may support an
unwarrantable failure finding. Compare Dawes Rigging & Crane
Rental, 36 FMSHRC ___, slip op. 5 (Dec. 10, 2014) (noting that a miner who
traveled under a suspended boom was only exposed for a “matter of seconds,”
which in turn weighed against a finding of unwarrantable failure), with Midwest
Material Co., 19 FMSHRC 30 (Jan. 1997) (Finding that a judge erred in
relying upon the brief duration of the violation when vacating the
unwarrantable failure designation. Noting that the only reason the duration of
the violation ended was because a crane boom crushed and killed a miner who
should not have been working under the boom).

Here, the inspector
initially believed that the violative condition, backing up the dump trucks
without a berm in place, had been ongoing for several days. However, the
testimony elicited at hearing demonstrated that the activity had been ongoing
for only the day of the violation. The dozer, which normally moved the
overburden from the dump location to the edge, and created the berms, had been
down since the previous week. However, the mine was not engaged in removing
overburden at this pit for several days. Therefore, the condition existed for
just one day.  Nonetheless, each truck driver had made at least ten hauls and
dumps prior to the inspector’s arrival. Given that each dump created a hazard,
the length of time is significant. Additionally, the dumping procedure would
have continued for the remainder of the day had the inspector not arrived. Given
the circumstances here, I find that the amount of time the condition existed is
significant and a relevant factor to the unwarrantable determination.

Extent of
the violative condition.  In IO Coal Co., 31 FMSHRC 1346 (Dec.
2009), the Commission explained that the “extent of the violative condition is
an important element in the unwarrantable failure analysis.”  The Commission
has explained that the purpose of this element is to “account for the magnitude
or scope of the violation[,]” and the judge may analyze it by looking at, among
other things, the “extent of the affected area as it existed at the time the
citation was issued[,]” the number of persons affected, and the time and
resources required to correct the condition.  Dawes Rigging & Crane Rental,
36 FMSHRC ___ , slip op. 5 (Dec. 10, 2014) (citing E. Associated Coal Corp.,
32 FMSHRC 1189, 1195 (Oct. 2010) and Watkins Eng'rs & Constructors,
24 FMSHRC 669, 681 (July 2002)); Consolidation Coal Co., 35 FMSHRC 2326,
2331 (Aug. 2013).

I find that
this violation was extensive. Even though only two miners were involved, they
constituted two-thirds of the workers in the area. The other worker, who was
watching and directing the activity, was a supervisor. The entire overburden
area, which is shown in the photographs, was involved, and the edge the drivers
were exposed to was some distance in length. The drivers explained that they
dumped the length of the overburden bank in an effort to avoid the ruts made by
previous dumps, therefore using the entire area while engaging in the activity.
The dumping was not isolated to one area but engaged the entire overburden area
and the twenty foot drop below.

Whether the
operator has been placed on notice that greater efforts were necessary for
compliance. The Commission has explained that repeated similar violations,
even if those prior violations were not a result of an unwarrantable failure,
and past discussions with MSHA about a problem at the mine may serve to put an
operator on notice that increased efforts to comply are necessary. IO Coal
Co., 31 FMSHRC 1346, 1353-1354 (Dec. 2009). Prior violations need to have
involved precisely the same activity, cited standard, or area of the mine.  Id.;
Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012); Consolidation
Coal Co., 35 FMSHRC 2326, 2344 (Aug. 2013). A court may consider an
operator’s argument that it had a reasonable good faith belief that the cited
condition was not violative and weigh that against this this and other factors
in the unwarrantable failure analysis. IO Coal Co., 31 FMSHRC 1346,
1353-1354 (Dec. 2009); Sierra Rock Products, 37 FMSHRC ___ (Jan. 13,
2015).

The Secretary did
not present any evidence as to this element, except the violation history for
the past 15 months, which shows no violation of this standard. Therefore, for
purposes of this unwarrantable analysis, I do not find any repeated similar
violations.

Operator’s
efforts in abating the violative condition. In evaluating the operator’s
efforts in abating the violative condition the judge should examine those
abatement efforts made prior to the issuance of the citation or order. Consolidation
Coal Co., 35 FMSHRC 2326, 2342 (Aug. 2013) (citing IO Coal Co., 31
FMSHRC 1346, 1356 (Dec. 2009) and Warwick Mining Co. 18 FMSHRC 1568,
1574 (Sept. 1996)). In Consolidation the Commission, in affirming the
unwarrantable failure designation, noted the judge’s finding that management
did not make efforts to remedy the type of condition cited despite being aware
of a similar condition having been previously brought to their attention
through the issuance of a citation.

Here, there was no
evidence that the mine operator made any effort to abate the violation. Instead,
the mine operator encouraged and directed the violation.  One of the owners of
the company indicated that he had assisted in task training the drivers a few
days prior to the incident, but there is nothing to indicate that he gave them
adequate information about safe driving. In fact, the owner made excuses and
attempted to argue that sinking into the ground, causing ruts, prevented the
trucks from backing too far and, therefore, there was no violation. Of the
three employees working in the overburden area on the day of the inspection,
one was a supervisor who was directing the workforce and had directed the truck
drivers to back up as close to the edge as they could, within 7-8 feet and then
dump. No efforts were made to keep the trucks back from the edge or to provide
a berm to prevent overtravel. I find that the mine made no effort to abate the
condition.

Whether the
violation posed a high degree of danger. The Commission has found the high
degree of danger posed by a violation to be an aggravating factor in support of
an unwarrantable failure finding. IO Coal Co., 31 FMSHRC 1346, 1355-1356
(Dec. 2009). The Commission has acknowledged that, conceivably, the degree of
danger could be “so severe that, by itself, it warrants a finding of
unwarrantable failure.” Manalapan Mining Co., 35 FMSHRC 289, 294 (Feb.
2013).  When a mine operator ignores a chronic problem, the degree of danger
and likelihood of something going wrong increases. Consolidation Coal Co.,
35 FMSHRC 2326, 2343 (Aug. 2013). In IO Coal the Commission, in
remanding the case to the judge, noted that, while the judge had made findings
about the dangerousness of the condition in his analysis of whether a S&S
violation existed, he failed to incorporate those findings into his
unwarrantable failure analysis. 31 FMSHRC 1346, 1355-1356 (Dec. 2009).

In Virginia
Slate Co., 24 FMSHRC 507 (June 2002) the Commission remanded a judge’s
finding that a violation of section 56.9301 was not unwarrantable and
instructed him to consider all of the aggravating factors, including the degree
of danger posed by the violations, the operator’s knowledge of the violations,
and any abatement efforts. There, a mine operator was found to have violated
the standard when it failed to provide berms, bumper-blocks, safety hooks, or another
device for the front-end loader that loaded the hopper of the crusher. The
Commission, in remanding the unwarrantable failure issue to the judge, noted
that the judge needed to consider whether the violation posed a high degree of
danger, especially given the court’s finding that there was a danger of the
load overturning due the lack of berms.

In this case, the
high degree of danger is one of the most significant factors in the finding of
unwarrantable failure. The mine had two drivers who normally worked in the shop
and had been task trained to drive the trucks at the bottom of the pit. These
two miners, one of whom had worked at the mine only a few weeks, were
instructed to haul overburden and back up as close to the edge as they felt
comfortable to dump the overburden near the twenty foot drop. The new miners
had little to no experience, and were looking behind them into the sun. The
material the miners were driving on had just been dumped and consisted of loose
unconsolidated material that would allow them to sink, and could easily shift
and move down the hill. There were no berms in place, and driving near the edge
could have easily resulted in a slide of material, which would have caused the
truck to overturn. Moreover, the risk of one, or both, of the trucks traveling
over the edge was an ever-present serious danger. The violation clearly posed a
high degree of danger.

Whether the
violation was obvious. The obviousness of the violative condition is an
important factor in the unwarrantable failure analysis. IO Coal Co., 31
FMSHRC 1346, 1356 (Dec. 2009). Moreover, where an operator’s conduct causes a
violative condition to not be obvious, the operator cannot assert that the lack
of obviousness is a mitigating factor in the unwarrantable failure analysis. Consolidation
Coal Co., 35 FMSHRC 2326, 2343 (Aug. 2013) (citing Eastern Assoc. Coal
Corp., 32 FMSHRC 1189, 1200-01 (Oct. 2010)) (upholding judge’s
unwarrantable failure finding where the operator deliberately ignored air
velocity requirements in the mine’s ventilation plan).

Along with the
extreme danger of the dumping activity, the obviousness of the violation is a
major factor in the unwarrantable finding in this instance. The inspector was
not on the mine property and, rather, was driving along the road just outside
the mine when he saw the violation and the imminent danger it posed. The
violation was obvious from the road, and should have been obvious to anyone at
the mine site. When the inspector entered the mine property, he could see the
further extent of the violation, the two trucks being loaded with overburden,
driving in the area of unconsolidated material, with the obvious lack of berms
or any other device to stop overtravel. In addition, the supervisor told the
inspector that he had been watching the operation and would call the trucks on
the radio if they got too close to the edge or if he thought they were sinking
into the loose ground. A trained supervisor, or any person familiar with mining
activities, should immediately recognize the hazard cited by the inspector. The
violation was not remote or hidden, but was obvious to any person who observed
the activity, even from afar.

Operator’s
knowledge of the existence of the violation.    In IO Coal the
Commission reiterated the well settled law that, in addition to actual
knowledge, an operator’s knowledge of the existence of a violation may be
established where the operator “reasonably should have known of the violative
condition.” IO Coal Co., 31 FMSHRC 1346, 1356-1357 (Dec. 2009). The
Secretary may establish that an operator “reasonably should have known of the
violative condition” by showing that the “operator’s knowledge of the specifics
of its operations should have led it to conclude that violation charged would
eventually occur[.]” Eastern Assoc. Coal Corp., 32 FMSHRC 1189, 1200-01
(Oct. 2010) (citing Emery Mining Corp., 9 FMSHRC 1997, 2002-04 (Dec.
1987) and Coal River Mining, LLC, 32 FMSHRC 82, 92 (Feb. 2010).

Inspector
Koskiniemi testified that when he traveled to the location where the dumping
was being done, he contacted a miner sitting in a front end loader who was observing
the operation. The miner, Luethmers, told the inspector that he was the
supervisor of the job. Later, the owner of the mine confirmed that Luethmers
was in charge of the two truck drivers who were dumping into the overburden. Given
that Luethmers was a part of management, he knew that the drivers were backing
up to the edge of the overburden pile, and he was the one directing them to do
so, I find that management had actual knowledge of the existence of the
violation. This factor weighs heavily in the determination that the violation
is unwarrantable.

Based on these facts
and this analysis of those facts, I find that Respondent clearly demonstrated
high negligence and that the violation was a result of its unwarrantable
failure to comply with the mandatory standard. I find these factors to
demonstrate aggravated conduct and therefore, the penalty is adjusted below to
reflect the conduct and the imminent danger the conduct created.

II.
 PENALTY

The principles
governing the authority of Commission administrative law judges to assess civil
penalties de novo for violations of the Mine Act are well established. Section
110(i) of the Mine act delegates to the Commission and its judges “authority to
assess all civil penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act
delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a),
820(a). Thus when an operator notifies the Secretary that it intends to
challenge a penalty, the Secretary petitions the Commission to assess the
penalty. 29 C.F.R. § 2700.28. The Act requires, that “in assessing civil
monetary penalties, the Commission [ALJ] shall consider “six statutory penalty
criteria which include the history of violations, the size of the operator, the
negligence, gravity, the ability to continue in business and good faith
abatement. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the
Commission has held that “findings of fact on the statutory penalty criteria
must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC 287, 292
(Mar. 1983), aff'd, 736 F.2d 114 7 (7th Cir. 1984). Once findings on the
statutory criteria have been made, a judge’s penalty assessment for a
particular violation is an exercise of discretion, which is “bounded by proper
consideration of the statutory criteria and the deterrent purpose[ s] . . .
[of] the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May
2000).

The history of
assessed violations was admitted into evidence and shows a reasonable history
for this mine. The mine is a fairly small, seasonal operator. The parties have
stipulated that the penalties as proposed will not affect the mine’s ability to
continue in business, and that Respondent demonstrated good faith in abating
the citation.  The gravity of the violation is greater than the Secretary
originally assessed.  The two drivers, who had spent one day being trained in a
level area, were put in a position where they could easily have been killed. The
operator did not dispute that their actions constituted an imminent danger. The
negligence and unwarrantable failure finding are discussed above. Since the
violation is very serious, a higher penalty is in order, and, considering the
size of the operator, I find that a penalty of $2,500.00 is appropriate.

III.
 ORDER

Based on the
criteria in section 110(i) of the Mine Act, 30 U.S.C.§ 820(i), I assess a
penalty of $2,500.00 for Citation No. 8847805. The Respondent is hereby ORDERED
to pay the Secretary of Labor the sum of $2,500.00 within 30 days of the date
of this decision.

/s/ Margaret
A. Miller

Margaret A. Miller

Administrative Law Judge

Distribution:

Emily Hays, U.S. Department of Labor, Cesar E. Chavez
Memorial Building, 1244 Speer Boulevard, Suite 216, Denver, CO 80204

Aaron Dean, Moss & Barnett, 150 South 5th
Street, Suite 1200, Minneapolis, MN 55402