West Alabama Sand & Gravel, Inc.

Plain-English summary

An independent truck driver climbed onto a loaded trailer about ten feet above the ground without fall protection while at West Alabama Sand & Gravel's mine. The operator did not dispute the violation or its significant-and-substantial designation, but it challenged the unwarrantable-failure finding and proposed $15,971 penalty. Judge Jerold Feldman held that the mine owner was legally responsible for contractor violations on its property. He nevertheless found that the absence of any similar citation during years of MSHA inspections supported the vice president's reasonable, good-faith but mistaken belief that West Alabama was not responsible for the truck driver's conduct. The Judge removed unwarrantable failure, reduced negligence to moderate, converted the section 104(d)(1) citation to section 104(a), and assessed $760. The Commission later vacated the negligence and unwarrantable-failure summary rulings because disputed facts required an evidentiary hearing and remanded the case.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.15005
• Outcome: The S&S violation was affirmed, unwarrantable failure was removed, the citation was modified from section 104(d)(1) to section 104(a), and the proposed $15,971 penalty was reduced to $760.
• Subsequent review: The Commission vacated the negligence and unwarrantable-failure summary rulings and remanded in se-2009-870-m-commission.
• Key point: Owner-operators may be cited for contractor violations, but this ALJ treated a reasonable, good-faith misunderstanding of that responsibility as mitigating aggravated conduct.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

601 NEW JERSEY AVENUE, N.W., SUITE 9500

WASHINGTON, D.C. 20001

July 17, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner 

v.

WEST ALABAMA SAND & GRAVEL, INC.,

Respondent 

:

:

:

:

:

:

:

:

:

:

:

CIVIL PENALTY PROCEEDINGS

Docket No. SE 2009-870-M

A.C. No. 01-02738-194100-01

Mine: West Alabama Sand & Gravel

ORDER GRANTING IN PART AND DENYING IN PART

SECRETARY’S MOTION FOR SUMMARY DECISION

AND

ORDER GRANTING RESPONDENT’S

MOTION FOR SUMMARY DECISION

Before: Judge Feldman

This civil penalty proceeding concerns a Petition for the Assessment of Civil Penalty filed pursuant to section 110(a) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),
30 U.S.C. § 820(a), by the Secretary of Labor against the Respondent, West Alabama Sand &
Gravel, Inc. (“West Alabama”). The petition seeks to impose a civil penalty of $15,971.00 for an
alleged violation of section 56.15005 of the Secretary’s mandatory safety regulations governing
metal and nonmetal surface mines. 30 C.F.R. § 56.15005. This mandatory standard, in pertinent
part, requires that “[s]afety belts and lines shall be worn when persons work where there is
danger of falling.”

I. Background

The material facts in this matter are not in dispute. On July 1, 2009, Mine Safety and
Health Administration (“MSHA”) Inspector Michael Evans conducted a regular biannual
inspection of the West Alabama Sand and Gravel mine facility in Fayette, Alabama. While at the
West Alabama mine site, Evans witnessed a driver for an independent trucking company who
was situated on top of his haul truck, ten feet above the ground. The truck driver, Johnny Koger,
was an employee of Denbar Transportation (“Denbar”).

Koger was in the process of installing
tarp in order to secure his load. He was not wearing a safety belt, lanyard, or any other type of
fall protection while he was observed crawling and extending his body over the side of his truck.
Clay Junkin, West Alabama’s Vice President, was present at the mine at the time Koger was
observed by Evans.

As a result of Evans’ observations, 104(d)(1) Citation No. 6511548, and
contemporaneous imminent danger Order 6511547,

were issued by Evans to Junkin citing a
violation of the mandatory standard in section 56.15005. The imminent danger order has not
been contested and is not a subject of this proceeding.

Order No. 6511548 states:

A customer truck driver was observed climbing on top of the loaded trailer. The
driver was not wearing a safety belt and lanyard or any other type of restraining
device to prevent a fall to the ground below. The truck driver was on his knees
pulling on tarp within inches of the side of the trailer. The truck driver was
exposed to a fall of ten foot to ground level. Clay Junkin (Vice President)
engaged in aggravated conduct constituting more than ordinary negligence by his
statement of knowing this was a hazard, and allowing this practice to continue for
several years. This violation is an unwarrantable failure to comply with a
mandatory standard.

This violation is a factor cited in imminent danger order No. 6511547 issued
07/01/2009. Therefore, no abatement time was set.

Although no abatement time was specified in view of the imminent danger order, the
citation was abated by West Alabama’s posting of a sign that prohibited drivers from climbing on
trucks. The cited violation was designated as significant and substantial (“S&S”). Junkin told
Evans that truck drivers “have been climbing on the trucks since 1985.” Evans’ Addendum to
Citation No. 6511548. West Alabama had never been cited for a failure of truck drivers to tie
down during previous MSHA inspections. Although Junkin conceded that he believed the
practice was hazardous, Junkin told Evans that “he couldn’t make truck drivers not climb [sic] on
the trucks [-] that it was their truck.” Id. Evans responded that “[Junkin] was responsible for
what is done or happens on mine property.” Id. As a result of Evans’ conversation with Junkin,
the cited violation was attributed to an unwarrantable failure.

Section 3(d) of the Mine Act defines an “operator” as “any owner, lessee, or other person
who operates, controls, or supervises a coal or other mine or any independent contractor
performing services or construction at such mine.” 30 U.S.C. § 802(d). (Emphasis added). It is
well settled that the Secretary has the unfettered discretion to cite an owner-operator of a mine,
an independent contractor working on mine property, or both, for violations committed by a
contractor. Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 152, 158 (D.C. Cir. 2006)
rev’g Twentymile Coal Co., 27 FMSHRC 260 (Mar. 2005) (reversing the Commission’s
decision that mine operators are not responsible for violations committed by contractors where
such operators do not directly contribute to the violation or have significant control over the
independent contractor’s activities).

The Secretary filed a Motion for Summary Decision on October 4, 2011, seeking the
affirmance of 104(d)(1) Citation No. 6511548 that characterized the cited violation as S&S and
attributed the violation to an unwarrantable failure. The Secretary seeks the imposition of a
$15,971.00 civil penalty.

West Alabama opposed the Secretary’s motion on October 24, 2011. It does not dispute
the fact of the violation or the significant and substantial designation. However, it opposes the
size of the $15,971.00 proposed civil penalty that primarily is based on West Alabama’s alleged
unwarrantable failure. I construe West Alabama’s opposition as a motion for summary decision
on the unwarrantable issue.

West Alabama is a small operator that has employed no more than eight employees
during the last three years.

Sec’y Resp. Br. at 4. West Alabama does not dispute the essential
facts underlining the citation, namely, that Koger failed to tie down while positioned on top of
the loaded haul truck. However, West Alabama, relying on Lime Mountain Co., 30 FMSHRC
1192 (Oct. 1998) (ALJ Manning), asserts that the proposed $15,971.00 civil penalty is
“unreasonable and extreme” in light of prior Commission cases involving violations of section
56.15005. West Alabama Opp. at p. 4. In Lime Mountain, a truck driver for an independent
contractor was observed on top of his trailer using a compressed air hose without wearing any
fall protection. Consequently Lime Mountain was cited for a violation of section 56.15005 for
which the Secretary proposed a civil penalty of $240. Id. at 1193. Judge Manning ultimately
assessed a civil penalty of $150.00. Id. at 1197.

During a conference call with the parties, West Alabama also relied on CEMEX Inc., 33 FMSHRC 1169 (May 2011) (ALJ Paez). CEMEX, a publicly traded company, had posted
signs at entrances to its mine facility that contract drivers were required to use safety platforms to
access the tops of tankers. CEMEX, 33 FMSHRC at 1171. Despite the written warnings, a
contract truck driver was observed standing on top of his tractor-trailer tanker instead of using
the required safety platforms. Id. Judge Paez assessed a civil penalty of $500.00 for the subject
section 56.15005 violation. Id. at 1173.

II. Disposition

Disposition by summary decision is appropriate provided (1) the entire record establishes
that there is no genuine issue as to any material fact; and (2) the moving party is entitled to
summary decision as a matter of law. 29 C.F.R. § 2700.67(b). See Missouri Gravel Co., 3
FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). There is
no dispute as to any issue of material fact with regard to the fact of the cited violation and the
likelihood of serious injury.

It is undisputed that Koger was positioned on top of his loaded haul truck in danger of
falling ten feet to the ground without utilizing any fall protection. A violation is properly
designated as S&S if it is reasonably likely that the hazard contributed to by the violation will
result in an accident causing serious injury. Cement Division, National Gypsum, 3 FMSHRC
822, 825 (Apr. 1981). West Alabama does not deny that it is reasonably likely that the continued
practice of working on an uneven surface elevated ten feet above the ground will result in an
accident involving a fall that is reasonably likely to result in serious injury. Consequently, the
cited violation is properly designated as S&S.

The remaining issue is the allegation of an unwarrantable failure. Unwarrantable failure
is “aggravated conduct, constituting more than ordinary negligence . . . in relation to a violation
of the Act.” Emery Mining, 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is
characterized by conduct including “reckless disregard,” “intentional misconduct,” “indifference”
or a “serious lack of reasonable care.” Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991). In resolving an unwarrantable failure issue, the Commission has noted that it is
significant to determine whether the operator has been placed on notice that greater efforts are
necessary for compliance. Enlow Fork Mining Co., 19 FMSHRC at 1, 5-6; Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug.
1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC
1596, 1603 (July 1984).

Thus, the dispositive issue is whether Junkin’s asserted lack of awareness that West
Alabama was responsible for contract employees should be viewed as a mitigating circumstance
with respect to the alleged unwarrantable failure. Regarding actual knowledge, repeated similar
violations are relevant to an unwarrantable failure determination to the extent that they serve to
put an operator on notice that greater efforts are necessary for compliance with a mandatory
standard. Peabody Coal, 14 FMSHRC at 1261. Significantly, there is no history of similar
violations. Despite biannual MSHA inspections dating back to approximately 1985, the
Secretary does not contend, and MSHA’s data retrieval system does not reflect, that West Alabama was ever cited for a fall protection violation of section 56.15005. Thus, there is no evidence of actual knowledge to refute Junkin’s asserted lack of awareness of West Alabama’s responsibility for the conduct of contract employees.

Lacking actual notice, the focus shifts to the validity of Junkin’s claim that he believed
that West Alabama was not responsible for contractor employee conduct. Examining the
sincerity of Junkin’s claim requires considering whether it is reasonable and whether it has been
made in good faith. This test contains the subjective element of whether Junkin’s claim can be
viewed as an honest belief, as well as satisfaction of the objective requirement that Junkin’s
belief is reasonable. I.O. Coal, 31 FMSHRC 1346, 1357-58 (Dec. 2009) (noting that a defense
against an unwarrantable failure designation requires not only a finding of good faith but also a
finding that the belief was reasonable under the circumstances); see also Bryce Dolan v. F & E
Erection Co., 22 FMSHRC 171, 177 fn. 7, (Feb. 2000), citing Sec’y of Labor o/b/o Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 810 (Apr. 1981). The absence of a relevant history of
citations issued for fall protection violations committed by contractor truck operators, who
undoubtedly routinely secure loads at West Alabama’s mine facility, adequately supports a good
faith claim. So too, the absence of relevant previous citations provides a reasonable basis for
Junkin’s belief that West Alabama was not responsible for the acts of truck operators it did not
employ on equipment it did not own.

Thus, Junkin’s reasonable and apparent good faith belief, albeit wrong, that West Alabama was not responsible for Koger’s failure to use fall protection is an appropriate
mitigating factor that reduces the degree of negligence under the threshold required for an
unwarrantable failure. Consequently 104(d)(1) Citation No. 6511548 shall be modified to a
104(a) citation by deleting the unwarrantable failure charge to reflect that the degree of
negligence attributable to the violation was no more than moderate.

Turning to the remaining issue of the appropriate civil penalty, the Mine Act requires
that, “[in assessing civil monetary penalties, the Commission [ALJ] shall consider” the following
six statutory penalty criteria:

[1] the operator’s history of previous violations, [2] the appropriateness of such
penalty to the size of the business of the operator charged, [3] whether the operator was negligent, [4] the effect of the operator’s ability to continue in
business, [5] the gravity of the violations, and [6] the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.

30 U.S.C. § 820(i).

With respect to the relevant violation history, West Alabama was issued 17 citations
during the 24-month period from June 30, 2007, through June 30, 2009, the 24-month period
preceding the subject citation. Sec’y Resp. Br, Gov. Ex. 7. Of these 17 citations 14 were
designated as non-significant and substantial. Id. The penalty range proposed by the Secretary
for each of the 17 citations was from $100.00 to $425.00. Id. Thus, it is clear that the history of violations is not an aggravating factor. West Alabama Sand is a relatively small operator, and, the civil penalty imposed in this matter will not affect its ability to continue in business. As noted above, the negligence attributed to the mine operator is no more than moderate and
West Alabama has provided a sign to deter further violations by contract employees on its mine
property. In consideration of the appropriate civil penalty criteria in section 110(i) of the Act, a
civil penalty of $760.00 shall be imposed for 104(a) Citation No. 6511548.

ORDER

In view of the above, the Secretary’s motion for summary decision on the fact of the
violation and S&S IS GRANTED. West Alabama’s motion for summary decision with respect
to the question of unwarrantable failure IS GRANTED. Consequently, 104(d)(1) Citation No.
6511548 is modified to a 104(a) citation to reflect that the citation was not the result of an
unwarrantable failure.

Consistent with the application of the penalty criteria to the facts of this case, IT IS ORDERED that West Alabama Sand shall pay a civil penalty of $760.00 within

40 days of the date of this decision. Upon timely payment of the $760.00 civil penalty, the captioned civil penalty IS DISMISSED.

/s/ Jerold Feldman

Jerold Feldman

Administrative Law Judge

Distribution: (Certified Mail)

Sophia Haynes, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street SW,
Atlanta, GA 30303

Clatus Junkin, Esq., Pearson, Harrison, Junkin & Pate, LLC, 202 3rd Street NE, P.O. Box 730,
Fayette, AL 35555

/jel