Secretary of Labor v. Saiia Construction, LLC and Secretary of Labor v. Darrell Ragland emp by Saiia Constr, LLC and Secretary of Labor v. Frederick Looney emp by Saiia Constr, LLC

Plain-English summary

Saiia Construction was the contract mining company running two quarries at the Omya Alabama marble plant in Sylacauga. After an April 9, 2010 blast, an excavator operator found a misfire, a charge that did not go off, still live in the rock he was digging. MSHA cited Saiia under the standard that allows only the work needed to safely remove a misfire in the affected area until the misfire is disposed of, and charged two supervisors personally under section 110(c) of the Mine Act. The judge had to decide, on conflicting witness accounts spread across three investigations and a hearing, who knew about the misfires and what they told the crew to do. Crediting the earliest statements, taken on site without management present, she found lead operator Darrell Ragland told the operator over the CB radio to "keep on digging," and that when a second misfire turned up four days later superintendent Frederick Looney told him to haul it to the dump and hide it. The order was affirmed as significant and substantial and as an unwarrantable failure, with no mitigating factors. Saiia paid the full proposed penalty of $42,600, Ragland $3,000, and Looney $3,300.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.6311(b); individual liability under 30 U.S.C. § 820(c)
• Outcome: Order No. 6517482 affirmed as issued, S&S and unwarrantable failure sustained; penalties of $42,600 against Saiia, $3,000 against Ragland, and $3,300 against Looney, all as proposed
• Key point: A supervisor's negligence is imputed to the operator, and a supervisor who knowingly orders work to continue around a live misfire is personally liable; testifying that you "never saw a danger in it" undercuts the defense rather than supporting it.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania
Avenue NW, Suite 520N

Washington, D.C. 20004

SECRETARY OF LABOR  

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),    

Petitioner      

v.        

SAIIA CONSTRUCTION, LLC,     

Respondent  

SECRETARY OF LABOR  

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),    

Petitioner       

v.        

DARRELL
RAGLAND, employed by  SAIIA CONSTRUCTION, LLC,

Respondent  

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),    

Petitioner       

v.        

FREDERICK LOONEY, employed by

SAIIA CONSTRUCTION, LLC,

Respondent

CIVIL PENALTY PROCEEDINGS

Docket No. SE 2011-127-M

A.C. No. 01-02985-235903 IKJ

Mine: Omya Alabama Plant

Docket No. SE 2012-206-M          A.C. No. 01-02985-276234
A

Mine: Omya Alabama Plant

Docket No. SE 2012-207-M

A.C. No. 01-02985-276235 A

Mine: Omya Alabama Plant

CORRECTED DECISION

Appearances: Jeremy
K. Fisher, Esq., U.S. Dept. of Labor, Office of the Solicitor, Atlanta,
Georgia, for Petitioner;

John W. Hargrove, Esq., Bradley
Arant Boult Cummings, LLP, Birmingham, Alabama, for Respondent.   

Before:            Judge Bulluck 

This Decision CORRECTS
typographical errors in the case caption and body, and adds a footnote regarding
penalty payment.

These
cases are before me upon Petitions for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health
Administration (“MSHA”), against Saiia Construction, LLC (“Saiia”), Darrell
Ragland, and Frederick Looney, pursuant to sections 105(d) and 110(c) of the
Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. §§ 815(d) and
820(c). The Secretary seeks a civil penalty of $42,600.00 against Saiia for a
violation of his mandatory safety standard found at 30 C.F.R. § 56.6311(b); a civil penalty of
$3,000.00 against Darrell Ragland, individually; and a civil penalty of
$3,300.00 against Frederick Looney, individually, for knowingly authorizing,
ordering, or carrying out the violation. 

A
hearing was held in Birmingham, Alabama. The following issues are before me:   (1)
whether Saiia violated the standard; (2) whether the violation was significant
and substantial;  (3) whether the violation was an unwarrantable failure to
comply with the Secretary’s mandatory safety standard; (4) whether Darrell
Ragland is individually liable for the violation; (5) whether Frederick Looney
is individually liable for the violation and, if so; (6) the appropriate
penalty for each violation. The parties’ Post-hearing Briefs are of record.  

For
the reasons set forth below, I AFFIRM the Order, as issued, and assess
penalties against Respondents Saiia, Ragland, and Looney.

I. Stipulations

The
parties stipulated as follows:

1.     
Respondent,
Saiia Construction, LLC, is engaged in a business which affects commerce.

2.     
Respondent,
Saiia Construction, LLC, is subject to the Federal Mine Safety and Health Act
of 1977, as amended.

3.     
The Administrative
Law Judge and the Federal Mine Safety and Health Review Commission have
jurisdiction to hear and decide this case pursuant to section 105 of the Act of
1977.                

4.     
MSHA
Inspector Mitchell Smallwood was acting in his official capacity when he issued
Respondent Order No. 6517482 on May 19, 2010.

5.     
True copies
of the Order referenced in the previous stipulation, together with all
appropriate modifications and abatements, were served on Respondent or its
authorized agents, as required by the Act.

6.     
Copies of the
subject Order and notes of alleged violation at issue in this proceeding are
authentic and may be admitted into evidence for purposes of establishing their
issuance, but not for the purpose of establishing the truthfulness or relevancy
of any statements asserted therein.

7.     
The
Administrative Law Judge has the authority to assess the appropriate civil
penalty under section 110(i) of the Act, if she also finds that the Order at
issue states a violation of the Act and the Regulations.

8.     
The proposed
civil penalties related to the MSHA enforcement action at issue in this
proceeding would not adversely affect Respondent Saiia Construction, LLC’s
ability to remain in business.

9.      Respondents
Darrell Ragland and Frederick Looney were at all relevant times agents of Saiia
within the meaning of section 110(c) of the Act.

Sec’y Br. at 2; Tr. 16-18.

II. Factual
Background          

Omya,
Incorporated, Alabama Division (“Omya”), owns the Omya Alabama Plant, a surface
marble mine in Sylacauga, Alabama. At all times relevant to this case, Saiia,
an independent contractor, conducted all mining operations at the Brown and
Omya quarries, both located within the Plant. Another contractor, Apache
Construction (“Apache”), performed and oversaw all blasting activities at the
quarries. Resp’t Br. at 2; Sec’y Br. at 3; Tr. 52-53, 235. The blasting
operations involved separate, but interrelated, activities on the part of Saiia
and Apache employees. Saiia was responsible for blocking and guarding the
quarry entrances and, after blasting was completed, Apache would give the “all
clear” signal. Tr. 236. The stripping crew, Saiia employees, would then haul
away the blasted material. Tr. 53-55, 153. Quality overburden, usually marble,
was transported to a stockpile, while other material of little value, such as
dirt, mud and dolomite, was hauled to an area called “the dump.” Tr. 54-55. Lead
operator Darrell Ragland supervised the day-to-day activities at the Brown
quarry, and superintendent Frederick Looney supervised the Omya quarry, had
oversight responsibility for both quarries, and was Ragland’s supervisor. Tr.
56, 233-34, 260, 262-64.

On
Friday, April 9, 2010, Apache conducted a blast at the Brown quarry at 11:28
a.m.1 Ex. P-7 at 1. According to Saiia’s time
sheets, the following employees, among others, were working at the Brown quarry
that day: Looney; Ragland; excavator operator Steve Harbin; truck driver
Rayford Cheatham; truck driver Ricky Cheatham; truck driver Derrick Miller;
truck driver Steve Littleton; truck driver Jeromy Watkins; Michael Bradberry;
Tommy Smith; Matt Honeycutt; Philip Gardner; Thomas Catchings; and Chris
Vaughn. Ex. R-10; Tr. 240-41. At some point after the blast, Harbin discovered
a misfire. Resp’t Br. at 3, 7; Sec’y Br. at 16. While the parties agree that
the blast occurred on Friday, the Secretary contends that the misfire was
discovered on the same day, and Respondents argue that Harbin found it on the
following Monday. Sec’y Br. at 13; Resp’t Br. at 3; Ex. R-26.

On
Monday, April 12, Harbin notified Omya’s quarry manager, Oscar Crawley, of the
misfire, although, like the date that the misfire was discovered, the time of
Harbin’s conversation with Crawley is unclear. Tr. 222-23. Crawley ordered
Harbin to berm-off the area, and informed Apache employee Robert Barton of the
misfire. Tr. 222-24; Ex. P-1 at 5, 9, 12. According to Saiia’s time sheets, the
following employees, among others, were working at the Brown quarry that
Monday: Looney; Harbin; Bradberry; Rayford Cheatham; Ricky Cheatham; Watkins;
Smith; Littleton; Miller; Honeycutt; Gardner; Vaughn; and Catchings. Ex. R-11;  
 Tr. 240-41. Ragland had a medical appointment that day, and was listed as
being on vacation.    Ex. R-11; Tr. 241.

The
next day, on Tuesday, April 13, Apache tied the misfire into its regularly
scheduled blast between 11:45 a.m. and 12:40 p.m. Exs. P-1 at 4, 5, 9-10, R-7
at 5; Tr. 243, 265. Thereafter, Harbin discovered a second misfire from
Friday’s blast. Ex. P-1 at 5, 10; Tr. 78, 254-55. Barton later disposed of the
misfire by tying it into a blast occurring the following week on Monday, April

19. Ex. P-1 at 5, 6. The following Saiia employees were working at the Brown
    quarry on that Tuesday: Looney; Ragland; Harbin; Bradberry; Littleton; Watkins;
    Honeycutt; Smith; Gardner; Vaughn; Catchings; and others. Ex. R-12; Tr. 240-41.
    According to the Daily Log for April 13, Rayford Cheatham, Ricky Cheatham, and
    Miller were absent that day. Ex. R-7 at 5; Tr. 244-45.

On
Wednesday, April 14, Crawley held a contractors’ meeting with Looney and
Ragland, and Apache employees Mark Ray and blasting manager Glenn Barton, and
discussed safe blasting procedures. Exs. P-1 at 12, R-29 at 3; Tr. 226, 229.

Monday,
April 19, Steve Harbin terminated his employment with Saiia, and returned to
Illinois to work for a former employer. Ex. P-1 at 4, 10; Tr. 79-80, 82, 84-85.

A. The
Smallwood Investigation

Almost
a month later, on May 11, MSHA’s Birmingham field office received an anonymous
hazard complaint, alleging that employees at the Omya Alabama Plant were not
following safe blasting procedures. Tr. 182. MSHA Inspector Michael Smallwood
conducted an on-site investigation on May 12, 13, and 18, interviewing Omya,
Saiia, Apache, and contractor Dixie Drilling (“Dixie”) employees. Tr. 183-84;
Ex. P-1; Sec’y Br. at 3.

Smallwood
first met with management-level Omya employees, supervisory-level Saiia
employees, then lower-level Saiia, Apache and Dixie employees. Tr. 184-89; Ex.
P-1 at 1-6. He found no physical evidence of any recent blasting violations,
and several interviewees told him that they were unaware or had no direct
knowledge of problems or unsafe practices at the quarry. Ex. P-1 at 3 (Daniel
Massey-Dixie); P-1 at 6 (Donald Churchwell-Apache); P-1 at 8

(Thomas
Catchings-Saiia); P-1 at 8 (Chris Vaughn-Saiia); P-1 at 16 (Matt
Honeycutt-Saiia);   P-1 at 17 (Phillip Gardner-Saiia). Ragland was the only
supervisory employee who told Smallwood that he was not aware of any problems
or misfires at the quarry. P-1 at 2; Tr. 188. Several others, however,
including Crawley and Looney, specifically mentioned that there had been a
misfire earlier in April. Tr. 184-89; Ex. P-1 at 2, 4, 5-7, 9, 13-16.

In an
initial and follow-up interview on May 18, Oscar Crawley stated that, as a
result of observing an unfired shot brought to his attention by Harbin on
Monday, April 12, he had instructed Harbin to berm-off the area, and he
reported the misfire to Apache blaster Robert Barton, who arranged to have it
reshot during the blast scheduled for the following morning.2 Crawley also stated that he had discussed
his concerns and reviewed blasting procedures with, among others, Looney and
Glenn Barton at the next regularly scheduled Wednesday contractors’ meeting on
April 14, and that the blasting crew was retrained on safe blasting procedures
the following week. Ex. P-1 at 2, 12; Tr. 196-97.

Frederick
Looney told Smallwood that, on Monday, April 12, as a result of Harbin
discovering and reporting to Darrell Ragland an unfired hole from the Friday,
April 9 blast, the area was barricaded and personnel were removed from the
site. By his account, Apache was informed of the misfire on Monday, and the
hole was reshot the next day. Looney also stated that Harbin resigned from
Saiia on April 19, and took an out-of-state job. Ex. P-1 at 4; Tr. 189.

Apache employee
Robert Alex Barton told Smallwood that he had conducted a clean post-blast
examination on Friday, April 9, but that an unfired shot was found on Monday,
April 12 that Apache tied into its blast and reshot on Tuesday, April 13. He
noted that another unfired shot was discovered an hour later, and that it “was
placed in the magazine and destroyed by placing [it] in a shot hole on April 19th
.” Ex. P-1 at 5-6. Barton also told Smallwood, during the follow-up interview
on May 18, that Apache employees were retrained on all phases of blasting a
week after the misfire events, with special emphasis on post-blast
examinations.    Ex. P-1 at 13.

Saiia employee
Tommy Smith told Smallwood that he heard the excavator operator notify Ragland
that he had uncovered a misfire, and that Ragland told him to “keep on
loading.” Ex. P-1 at 6; see Tr. 190-91.

Saiia
employee Steve Littleton told Smallwood that on Friday or Saturday, he,
himself, saw the evidence of the misfire that the excavator operator had
discovered, i.e., blasting wires and ANFO. Ex. P-1 at 6. According to
Littleton, he heard Harbin report the misfire to site supervisor Ragland over
the CB radio, and Ragland responded that “sometimes they looked like that and
to just keep on digging.” Ex. P-1 at 6-7; see Tr. 191-92. He stated that he did
not believe that Ragland ever came to the site to investigate the misfire when
it was reported to him, and that on Monday, Omya superintendent Oscar Crawley
barricaded the area and removed all personnel from the site. Ex. P-1 at 7; see
Tr. 192.

Saiia
employee Derrick Miller told Smallwood that sometime in early April, while he
was driving a haul truck, after observing the exposed wiring and ANFO of a
misfire in the area being mined, he had volunteered to move to another location
and operate another piece of equipment. He stated that mining in the area had
continued for about an hour after the misfire was discovered, and that he had
no knowledge of it being reported to management. He also stated that he noticed
that the area had been barricaded at the end of the shift. Ex. P-1 at 7-8.

After interviewing
several hourly Saiia employees, Smallwood interviewed Steve Harbin by
telephone. Harbin told the inspector that upon discovering a misfire on Friday,
April 9 after a blast earlier that day, and reporting it to Darrell Ragland
over the CB radio, Ragland told him to “keep on digging.” Harbin stated that he
moved away from the misfire and continued working at a different location. According
to him, on the following Monday, when Omya supervisor Oscar Crawley had come
on-site, he showed him the misfire, and Crawley had him berm-off the area. He
said that the blasters tied the misfire into the blast that was conducted the
next day and that, after the blast when he began loading, he found another
misfire. This time, he stated, he reported the unfired shot to both Ragland and
Looney. Harbin alleged that he was told that “if he found a booster, to send it
to the dump and not stop digging,” although he did not specify who had given
this order. At the conclusion of the interview, Harbin told Smallwood that he
had resigned on the following Monday, April 19, and informed his co-workers
that he was resigning because Saiia did not address his safety concerns when he
encountered misfires, and because of the follow-up instructions that he was
given to send boosters to the dump if he encountered them. Ex. P-1 at 9-10.

Smallwood
also interviewed several Saiia employees on May 18. Haul truck driver Michael
Bradberry expressed uncertainty of the misfire discovery date, but stated that
he heard Steve Harbin report a misfire to Darrell Ragland over the CB radio,
and that Ragland replied that “this happens all the time . . . keep on
digging.” Ex. P-1 at 13.

He also
interviewed the Cheatham brothers, both Saiia haul truck drivers. Ex. P-1 at  14-15.
Rayford Cheatham stated that Harbin reported a misfire to Ragland, and that he
witnessed Harbin show it to Ragland on-site. According to Cheatham, he heard
Ragland tell Harbin that it was “ok and go back to work.” He also stated that
Crawley had Harbin barricade the area after he found out about the misfire. He
asserted that the area was mined after the blasters gave the “all clear”
signal. Cheatham did not know the circumstances under which the blasters
removed the misfire, and he did not specify when any of these events had
occurred.   Ex. P-1 at 14.

Ricky
Cheatham told Smallwood that he heard Harbin report to Ragland over the CB
radio that he had found a misfire, and that Ragland’s reply was that “the shot
had already been fired and . . . keep digging.” He also stated that Harbin
found a second misfire and, again, reported it to Ragland over the CB radio. According
to Cheatham, Harbin asked Ragland to contact someone else about the misfire,
but Cheatham did not identify to whom he was referring. Cheatham also stated
that Harbin talked to Oscar Crawley on-site later in the shift, and that
Crawley had Harbin barricade the area against entry. Ex. P-1 at 15.

Saiia
haul truck driver Jeromy Watkins stated that he heard Harbin tell Ragland over
the CB radio that he had found a misfire, and that Ragland told him to “keep on
digging.” Ex. P-1 at 16.

Smallwood
returned to the mine and had a close-out meeting with management
representatives of the companies on May 19. Ex P-1 at 18-19. Based on his
investigation, Smallwood issued 104(d)(1) Order No. 6517482 to Darrell Ragland
the same day. Ex. P-1 at 18-19; Ex. P-2.

B. The
Saiia Investigation

Following issuance of the Order, in late
May Saiia also took statements from several employees concerning their
knowledge of the handling of the misfires. Some of the latter statements were
essentially consistent with the statements given during Smallwood’s investigation.
Exs. R-13 (Robert Alex Barton); R-18 (Bradberry); R-20 (Gardner). Others
provided additional information. Jeromy Watkins added that on Tuesday, after
the blast and Harbin’s discovery of another misfire, Harbin called Looney, who
told him to “load the trucks and take everything to the dump.” Ex. R-21. Rayford
Cheatham remembered both misfires discovered by Harbin to have occurred on
Monday. Ex. R-19. Some accounts of events, however, changed. For example, Steve
Littleton stated that he did not think that there was any problem on April 9,
and that he did not recall hearing Ragland direct Harbin over the CB radio to
keep working. Ex. R-14. Derrick Miller placed Harbin’s discovery of the misfire
on Friday, and the tie-in reblast on Monday. Ex. R-16.

Darrell
Ragland provided considerably more information than he had given Smallwood. He
noted that he was off from work on Monday, April 12 due to a doctor’s
appointment, that he was told on Tuesday of a misfire being found on Monday and
Crawley clearing the area of workers and equipment. On Tuesday, he stated,
after the “all-clear” was given and stripping resumed after the blast, Harbin
discovered another misfire and moved his excavator from the immediate area. Then,
according to him, Alex Barton removed the misfire from the area as a result of
a call from Looney. Ragland also maintained that he told Harbin, “if you find
another booster, call me.” Ex. R-5.

C. The
Daniels Investigation

In late January and early February of 2011,
MSHA Special Investigator Don Daniels conducted a 110(c) special investigation
to determine whether Ragland and Looney should be charged with individual
liability in connection with the misfire violation. Sec’y Br. at 4; Tr. 205-07.
He interviewed Ragland, Looney, Littleton, Miller, and Smith in the Omya
conference room, in the presence of Saiia’s attorney; Crawley in the Omya
conference room, alone; and Harbin by telephone. See Exs. R-6 (Ragland); R-8
(Looney); R-15 (Littleton); R-17 (Miller); R-22 (Smith); R-23 (Harbin); R-29
(Crawley). It was during Daniels’ interview that Harbin specifically stated
that it was Looney who had told him to take misfires to the dump. Ex. R-23 at

2. On the other hand, Smith told Daniels that Harbin spoke to Looney about the
   first misfire, and that Looney told him to stop working so that he, Looney,
   could investigate. Ex. R-22 at 3. Looney told Daniels that he had “never seen a
   danger” in “digging and loading material in an area where a misfire has
   occurred.” Ex. R-8 at 4. He also stated that he had no knowledge of a second
   misfire. Ex. R-8 at 4. Thereafter, based on Daniels’ findings, MSHA filed
   110(c) charges against both Ragland and Looney. Sec’y Br. at 4; 205-07.

III. Findings of Fact and
Conclusions of Law

A.
Saiia

1. Fact of Violation

Inspector Smallwood issued
104(d)(1) Order No. 6517482 on May 19, 2010, alleging a “significant and
substantial” violation of section 56.6311(b) that was “reasonably likely” to
result in an injury that could reasonably be expected to be “fatal,” and was
caused by Saiia’s “reckless disregard” and unwarrantable failure to comply with
the standard.3 The
“Condition or Practice” is described as follows:

A misfire was detected during the
mining process in the area that was shot on April 9th 2010 and was reported to
Darrell Ragland/ site supervisor. Mr. Ragland failed to ensure that only work
necessary to remove the misfire and to protect the safety of the miners was
performed. The area was not barricaded against entry. Mr. Ragland engaged in
aggravated conduct constituting more than ordinary negligence in that when he
was notified of this condition he instructed the excavator operator to continue
mining operations. This violation is an unwarrantable failure to comply with
the standard.  

Ex. R-1. The Order had been terminated
prior to Smallwood’s investigation when Apache tied the misfire into the
regularly scheduled blast on Tuesday, April 13, 2010.   

In order to establish a
violation of one of his mandatory safety standards, the Secretary must prove
that the violation occurred “by a preponderance of the credible evidence.” Keystone
Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek
Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)).

The
Secretary asserts that the misfire triggering the violation was found and
reported by Harbin to Ragland on Friday, April 9. Sec’y Br. at 13. It is
further contended that Ragland ordered the miners to work in the face of the
misfire, which continued until Monday, April 12, when the hazard was reported
to Crawley, who, consequently, cleared the area and had it barricaded. Sec’y
Br. at 19. The Secretary also contends that when Harbin discovered and reported
the second misfire, Looney told him to dispose of it improperly and continue
working. Sec’y Br. at 13.

Respondents
characterize the Secretary’s investigations as products of misunderstanding,
mistake, or exaggeration. Resp’t Br. at 9. They argue that Harbin discovered
the first misfired shot on Monday. That day, they contend, Harbin could not
have informed either supervisor of the misfire because Ragland had a doctor’s
appointment and was not at work, and Looney was working at the Omya quarry. Resp’t
Br. at 3, 6-7. According to Respondents, Crawley was informed of the misfire in
the afternoon that Monday, he had the area barricaded, and Apache called in to
recheck it. Resp’t Br. 3, 7. They also posit that Looney was only at the Brown
quarry on Tuesday after Harbin had discovered the second misfire and,
therefore, that he could not have told Harbin to take misfires to the dump. Resp’t
Br. at 9. Furthermore, Respondents contend that no work had been performed
between Crawley’s intervention and the Tuesday blast, and they theorize that
what Harbin and others actually heard over the CB radio was Ragland’s “return
to work” order after Apache’s “all clear” signal. Alternatively, they contend
that someone other than Ragland or Looney told Harbin to keep digging when he
found the misfire. Resp’t Br. at 8-9.

a.     
Testimony

Steve Harbin’s overall testimony
was credible and consistent with his statement given to Smallwood. He stated
that his experience with blasting has taught him that if a blast produced a
misfire, it likely produced others, and that he found two misfires in the same
area as a result of the Friday blast. Tr. 77-78. Harbin did acknowledge that
when the equipment is operating at the quarry, it can be difficult to hear who
is speaking and what is being said over the CB radio.    Tr. 74, 95-6. However,
he maintained that he could clearly hear that it was Ragland to whom he was
speaking because the equipment was not operating while they were talking. Tr.
93-94. He stated that, in an effort to distance themselves from the hazard, he
moved the excavator 75 yards away from the area where he had been digging, and the
truck drivers moved “a couple hundred yards” away, where they all continued
working. Tr. 70-71. Harbin also testified that he confronted both Ragland and
Looney, in person, after he discovered the second misfire. Tr. 78. According to
him, Looney “[l]ooked [him] square in the eyes,” and said, “we can’t get no
production this way if you keep digging these up.” Tr. 78. He was so incensed
by this order, he contended, that he made up his mind to quit his job. Tr.
79-90.

Derrick
Miller drove a 50-ton rock truck for Saiia from February 2010 until February
2012. Tr. 112-13. He testified that he was aware of the misfire in early April,
although he was unsure of the date on which it was discovered. Tr. 115-16. Initially,
he stated that he had heard someone report the misfire over the CB radio and
someone instruct the miner to haul it to the dump, then explained that the CB
radio “didn’t work that good in that truck at the time,” and that he was unable
to hear beyond 200 yards. Tr. 116-19. However, upon further questioning, Miller
stated that he did not actually hear the exchange over the CB radio, but that
Ricky Cheatham had told him that Steve Harbin had reported the misfire and was
told to haul it to the dump. Tr. 120-21, 124. He addressed the contradictions
in his testimony by noting that “it’s been three years   . . . . I can’t
recall. I don’t know what happened yesterday.” Tr. 125. Miller reviewed his
statement to Smallwood, and confirmed that mining had continued for an hour
after the misfire was found, and that the area was barricaded. Tr. 129-30.

Steve
Littleton began working for Saiia as a rock truck driver in March of 2010, and
was a current employee of the company when he testified. Tr. 132-33. Contrary
to his earlier detailed account of events surrounding the April 2010 misfires,
Littleton testified that he did not remember much about the subject, nor what
he had said during his interview with Smallwood. Tr. 135-36; see Tr. 137-42,
144-45. In addressing his drastic departure from his earlier statements, Littleton
suggested the possibility that, at the time Smallwood conducted his interviews,
a discussion with “Steve or somebody, you know, on the ground, parking lot,
whatever,” may have occurred and influenced his statement. Tr. 140-41. When
reminded that Harbin was not in the state of Alabama when Smallwood conducted
his interviews, Littleton switched gears, stating that the parking lot exchange
possibly occurred “immediately after the incident, before he quit.” Tr. 143. When
asked a question on direct-examination designed to highlight his sudden lapse
of memory, Littleton responded that “[t]hat was then. This is now. I mean, I
don’t hardly remember what happened last week, if you want to know the honest
truth.” Tr. 145.

Ricky
Cheatham was employed by Saiia as a haul truck driver from June 2005 until
August 2010; in April 2010, he was either stockpiling marble in the Brown
quarry or hauling dirt to the dump. Tr. 152-54. He recalled Harbin calling in a
misfire over the CB radio, and Looney telling him to “go down and pick it up
and haul it to the dump.” Tr. 155-56. According to him, the other supervisor,
Ragland, told the stripping crew to go back to work over the CB radio, and
these events occurred on Tuesday or Wednesday. Tr. 156-57. Cheatham also stated
that “Steve [Harbin] told everybody, no, we’re not going back down there and
loading none of that rock until they come down there and do something about
it.” Tr. 157-58. That same day, he testified, Crawley flagged the area and
removed the workers, and he recalled only one misfire. Tr. 158, 159-60.

Rayford
Cheatham, Ricky’s brother, also worked five years for Saiia until 2010, and was
driving a haul truck in the Brown quarry in April of 2010. Tr. 163. He
testified that the stripping crew was given the “all clear” signal by Apache
after the shot, that Harbin was digging in the highwall and came across a
misfire, and that everyone in the pit that day also saw the “pink stuff running
out of the highwall . . . . all over the rocks.” Tr. 164, 168. According to
him, Harbin reported it over the CB radio, and “they came down there and
looked, and Fred Looney told him to go ahead and load it, take it to the dump
and hide it,” over the CB radio. Tr. 164-65, 168. Cheatham averred that he
heard Looney make the statement, and that “everybody joked about it. Every time

• • they came over the radio to say something like that and knowing that [Omya]
    monitored the radio.” Tr. 167-69. By his account, Harbin refused to keep
    digging and moved the crew to another spot, after which Crawley was made aware
    of the situation, had the area barricaded, and moved the crew out of the area. Tr.
    166, 178-79. On cross-examination, Cheatham placed Ragland at the quarry on the
    day of the misfire discovery, blocking traffic on the road to prevent entry or
    exit until Apache had completed the blast. Tr. 176-78. Finally, he had no
    recollection of Harbin showing Ragland the misfire, and stated that all events
    about which he testified had occurred on the same day, although he could not
    pinpoint which day.   Tr. 178-79.

Mitchell
Smallwood, an MSHA inspector of almost six years with 23 years of mining
experience, including certification as a mine foreman and an underground shot
blaster, testified largely based on his interview notes, verifying the
statements made to him during the hazard complaint investigation. Tr. 180-81. He
stated that the non-management employees were sequestered for questioning. Tr.
189-90. Steve Harbin was not the first person to bring up the CB radio
conversation in which Harbin allegedly reported the misfire to Ragland and was
told to keep digging; it was, in fact, the first non-management employees
interviewed, Tommy Smith and Steve Littleton. Tr. 190-92. Smallwood explained
why, based on the interviews, he determined that Saiia had permitted its miners
to continue working in the area after a misfire had been discovered, that the
hazard was reasonably likely to result in a fatality, and that management had
directly ordered its miners to work in the face of grave danger. Tr. 200-04.    

Quarry
manager Oscar Crawley had worked for Omya just shy of eight years when he
testified for Saiia. Tr. 221. Crawley stated that during his drive through the
Brown quarry on the afternoon of Monday, April 12, he was summoned by Harbin,
who advised him of a misfire; he had the area barricaded with rocks, and
notified the blaster and Saiia’s mining manager of the misfire. Tr. 222-23. He
testified that he had not been present at the Brown quarry the previous Friday,
and that he did not recall talking to Looney or Ragland about his handling of
the misfire. Tr. 225. Crawley verified his earlier statement that Harbin had
told him that he had reported the misfire to his supervisor over the CB radio,
but had not specified the day on which that had occurred. Tr. 228-29. Finally,
he stated that retraining blasters was recommended to Apache during the April
14 contractors meeting, as an extra safety precaution to remind them of the
proper procedures. Tr. 229-30.

Darrell
Ragland, employed by Saiia for over 15 years at the time of hearing, had been
lead operator overseeing the daily mining operations at the Brown quarry since
the project had begun in late February or early April of 2010. Tr. 233-34. He
testified that in April of 2010, Saiia’s practice was to guard entrances to the
quarry and monitor CB radio communications from Apache during blasting, and
Apache was responsible for post-blast examinations and relaying the “all clear”
signal for Saiia workers to begin excavation. Tr. 235-36. Ragland remembered
Friday, April 9 as uneventful and, according to the daily log, he drove the
water truck that day. Tr. 237-38; Ex. R-7 at 1. He also stated that he took a
vacation day the following Monday for a doctor’s appointment. Tr. 239; Ex. 7 at
2, 11. Ragland testified that on Tuesday, the miners informed him that a
misfire had been found on Monday, that Crawley had already barricaded the area,
and that the misfire was reshot that Tuesday. Tr. 242-43; Ex. R-7 at 5. He
denied ever sending anyone into a blasting area before receiving an “all clear”
signal, as well as directing anyone over the CB radio to keep digging in the
face of a misfire. Tr. 245-46; see Tr. 256-258. Ragland stated that he did not
remember having any conversation with Harbin on Friday or Tuesday, nor since
the misfire incident. Tr. 247. When given the opportunity on cross-examination
to review his statement given during Saiia’s internal investigation, Ragland
acknowledged that Harbin had found a second misfire and removed the excavator
from the area, and that Looney had Alex Barton remove the misfire; he also
admitted that he had spoken to Harbin after he had found the second misfire,
telling him “if you find another booster, call me.” Tr. 254-55. Ragland also
testified that he was replaced as quarry supervisor after the April misfires by
a person with “more experience with just the overall mining plan and [who
would] help Omya get the work going in the direction they needed to.” Tr. 258.

Frederick
Looney had worked for Saiia for over 25 years, had operated equipment for 10
years, and had been quarry superintendent for five or six years. Tr. 259-60. Looney
testified that both quarries were operating on Friday, April 9, that he was at
the Omya quarry most of the day, and that he remembered nothing unusual about blasting
activities. Tr. 261-62. He stated that the following Monday evening, when he
arrived at the Brown quarry, Crawley was closing down and had earlier
barricaded the area of the misfire. Tr. 262-63. Looney acknowledged moving back
and forth between Omya and Brown during the course of the day and, after
initially testifying that he had not gone to the Brown quarry on Tuesday, he
stated that he had, in fact, visited the quarry in the evening. Tr. 265-67. However,
upon further questioning, he stated that he did not remember whether he was at
Brown in the morning or evening, or whether the blast had already taken place;
then he supposed that it “might have been mid-morning, maybe somewhere right
around 12:00, 11:30, 12:00, something like that.” Tr. 267-68. He did state that
the barricade had been taken down and the quarry was operating normally. Tr.
268-69. Looney denied having a conversation with Harbin, or a conversation over
the CB radio on Friday or Tuesday; he also denied ordering anyone to work
around a misfire or in a blast area before an “all clear” signal was given, or
ordering anyone to haul a misfire to the dump. Tr. 269-70, 272-73. In reference
to his interview with Daniels, in which he appeared to minimize the danger of
working in an area around a misfire, Looney asserted that he would not put
someone in that position, but then added that he had never seen a danger in it.
Tr. 275-77.

b.      Analysis

Resolution of the issues in this case is
entirely fact-based and requires credibility determinations and reconciliation
of inconsistent statements and testimony. As a preliminary matter, I find the
miners’ statements taken during Smallwood’s investigation in May to be the most
credible source of evidence in determining the course of events that triggered the
hazard complaint. These statements were made closest in time to the incidents
in question and even then, memories had already begun to fade as to exact dates
and times; this is especially true given that there had been two separate, but
interrelated, misfires, and discrete details of the first were often commingled
with the second and vice-versa. Furthermore, unlike the statements taken later
in May during Saiia’s internal investigation, statements to Smallwood were made
without the involvement of any management personnel. While it is abundantly
clear that with each subsequent investigation, the passage of time
progressively eroded the miners’ ability to compartmentalize the two incidents,
to make matters worse, the reliability of Daniels’ investigation the following
November was further compromised by the presence of Saiia’s attorney in the
Omya conference room when the miners’ statements were being taken. The hearing
was held almost two years after that. Most discrepancies in the witnesses’
accounts were, understandably, products of the passage of time. This is evident
by the fact that witnesses, such as the Cheatham brothers, testified to events
that, by most other accounts, occurred on days during which they were absent
from work. The most noteworthy lapse of memory and extreme about-face in
testimony came from a miner still employed by Saiia, who obviously had concerns
about jeopardizing his job. However, despite the passage of time and the
tedious task of making the investigation statements jibe, then squaring them
with the testimony at hearing, common threads of evidence emerge that weave the
probable tapestry of events. Moreover, any allegations that Harbin called in
the hazard complaint to MSHA, had an axe to grind with Saiia, or influenced any
witnesses’ statements or testimony is without support in the record. See Resp’t
Br. at 7-8. As will be explained, I fully credit Harbin’s testimony as to the
days on which he discovered the misfires, to whom he reported them, and what
instructions he was given as a result. I also find his reason for ending his
employment at Saiia, that he was required to work around live, undetonated
explosives, in line with his overall testimony, supported by the record, and
wholly credible.

Smallwood’s visit to the mine was unannounced
and the miners were sequestered. Smith (Ex. P-1 at 6) and Littleton (Ex. P-1 at
6-7) were the first two of five hourly miners to tell Smallwood that they heard
Harbin call in a misfire to Ragland over the CB radio, and Littleton thought
that it had happened on Friday or Saturday. Bradberry (Ex. P-1 at 13), Ricky
Cheatham (Ex. P-1 at 15), and Watkins (Ex. P-1 at 16), likewise, gave
strikingly similar statements. Rayford Cheatham’s statement, while similar, was
lacking in detail that the report was made over the CB radio. Ex. P-1 at 14. Even
before their statements, Looney had told Smallwood that Harbin had notified
Ragland of the misfire. Ex. P-1 at 4. Smith, Bradberry, Ricky Cheatham and
Watkins told Smallwood that they heard Ragland tell Harbin to “keep digging” or
“keep loading.” Littleton said that Ragland told Harbin that “sometimes they
looked like that and to just keep digging.” Rayford Cheatham said that Ragland
told Harbin that “it was ok and go back to work.” Steve Harbin, then, whose statement
was taken later by phone, corroborated the on-site hourly employees’ accounts
of his report of the misfire to Ragland, rather than the other way around, and
his rendition of Ragland’s response, “sometimes they [look] like that and to
keep on digging,” was nearly the same as Littleton’s, verbatim. Ex. P-1 at 9.

For Ragland to have directed Harbin to keep
working in the face of an unfired shot, that incident would have had to have
occurred on Friday, April 9, as the Secretary contends, since Ragland was not
at the quarry the following Monday. Fortuitously, Crawley provides the key to
establishing when the misfire was discovered. Crawley, clearly referring to the
first misfire, told Daniels that “Harbin said he reported the misfire to his
supervisor over the radio.” Ex. R-29 at 2; see Tr. 228-29. Clearly, Harbin
summoned Crawley to the site of the unfired shot to get something done about it
-- something that he had not been able to accomplish by reporting it to his
supervisor three days earlier.

Harbin also told Smallwood that after the
Tuesday blast, he found another unfired shot near the first misfire and
reported it to Ragland and Looney, who were both at the quarry; he was told
that if he found a booster to send it to the dump and not stop digging. Ex. P-1
at 10. Harbin’s subsequent statement to Daniels was consistent with that
statement. Ex. R-23 at 2. Watkins stated during Saiia’s investigation that
Harbin called Looney on Tuesday when he found the second misfire, and Looney
told Harbin to take everything to the dump. Ex. R-21. Although Looney told
Daniels that he had not been at the Brown quarry when the first misfire was
found and that he had no knowledge of the second misfire (Ex. R-8 at 5),
Ragland told Daniels that he and Looney were notified of the misfire at the
same time on Tuesday. Ex. R-6 at 4-5. During Saiia’s investigation, Ragland
stated that it was Looney who had called Alex Barton to have the misfire
removed from the area. Ex. R-5. Barton, on the other hand, told Saiia that
Ragland had called him to report that another unfired booster had been found. Ex.
R-13. Smith, recanting his earlier statements to Smallwood in the presence of
Saiia’s attorney, told Daniels that he heard Harbin reporting a misfire to
Looney, and that Looney directed him to “cease work and he would investigate
it.” Ex. R-22 at 3.

In addition to Harbin, too many workers reported
Looney to have directed Harbin to dig up the misfire and dispose of it in the
dump to be disbelieved. Additionally, Looney’s blanket denial of ever ordering
work to continue following discovery of a misfire is belied by his lack of
appreciation of the seriousness of the hazard. When asked by Daniels whether it
is dangerous to dig and load in an area where a misfire has occurred, his response
was “I have never seen a danger in it.” Ex. R-8 at 4. His opportunity at
hearing to soften the negative import of his statement missed the mark, as his
testimony essentially reiterated his position that in all his years of
experience, he had never seen an unfired booster actually explode. See Tr.
276-77.                

Although the hourly workers’ accounts of the two
misfires arising out of the Friday blast vary in many respects, they place
Ragland at the Brown quarry on Friday, Ragland and Looney both at the quarry on
Tuesday, and have both supervisors verbally responding to one or the other of
Harbin’s reports of the misfires. The overwhelming weight of the evidence
establishes that Harbin discovered the first misfire on Friday, April 9, that
he reported it to Ragland over the CB radio, that Ragland instructed him to
keep operating despite the obvious danger, and that mining continued until
Crawley intervened the following Monday. Likewise, the record also establishes
that on Tuesday, April 13, Harbin discovered the second misfire in the vicinity
of the first, that he reported it to Looney and, perhaps, Ragland, that Looney
directed him to haul it to the dump to hide it, and that mining continued
before it was removed by Apache. It is equally clear that Harbin’s motivation
in quitting his job and securing employment out of state, away from his family,
was squarely rooted in his desire to remove himself from the hazardous work
environment. Because work was permitted, in addition to that which was necessary
for safe removal and disposal of the misfires from the affected area, I find
that section 56.6311(b) was violated. 

2.
Significant and Substantial     

In Mathies Coal Company, the Commission
set forth four criteria that the Secretary must establish in order to prove
that a violation is S&S under National Gypsum, 3 FMSHRC 822 (Apr.
1981): 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. 6 FMSHRC 1, 3-4
(Jan. 1984) (footnote omitted); see also Buck Creek Coal, Inc. v. FMSHRC,
52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor,
861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (Dec.
1987) (approving Mathies criteria).

In U.S.
Steel Mining Company, 7 FMSHRC 1125, 1129, (Aug. 1985), the Commission
provided additional guidance:

We have explained further that the third
element of the Mathies 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.”

6 FMSHRC 1834, 1836 (Aug. 1984). 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 (Aug. 1984);

U. S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

Evaluation
of the third criterion, the reasonable likelihood of injury, should be made in
the context of ‘“continued normal mining operations.’” U.S. Steel Mining Co.,
6 FMSHRC 1573, 1574 (July 1984). Moreover, resolution of whether a violation is
S&S must be based “on the particular facts surrounding that violation.” Texasgulf,
Inc., 10 FMSHRC 498, 501 (Apr. 1988); Youghiogheny & Ohio Coal Co.,
9 FMSHRC 2007, 2011-12 (Dec. 1987). The
Commission clarified that “[t]he Secretary need not prove a reasonable
likelihood that the violation itself will cause injury.” Musser Eng’g, Inc.,
32 FMSHRC 1257, 1281 (Oct. 2010). The Commission also emphasized the
well-established precedent that “the absence of an injury-producing event when
a cited practice has occurred does not preclude a determination of S&S.” Id.
(citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue
Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)).       

The
underlying violation has been established. The second criterion of the Mathies
test has been met, in that allowing mining to continue in an area where there
are live boosters heightened the risk of exposing miners to an unintended,
unexpected detonation. The focus of the S&S analysis, then, is the third
and fourth Mathies criteria, i.e., whether the hazard contributed to was
reasonably likely to result in an injury, and whether the injury would be serious.
Smallwood testified that working around an unfired shot endangered the lives of
the excavator operator and truck drivers, whose only protection was the
windshields in their equipment, that the unfired shot was located near material
that had been “broken” from a prior shot, and that there would be “nothing
there to prevent that material from traveling in any direction.” Tr. 202-03. Harbin,
also experienced in mining around explosives, testified that the explosives
were powerful enough to have killed two or three truck drivers in the immediate
area, and that even workers hundreds of yards away would be endangered by
flying rocks. Tr. 62-64, 71. Even Ragland acknowledged that a booster could go
off and “possibly ignite any other explosives” nearby. Tr. 249. Clearly,
excavating and loading in an area containing a misfire is reasonably likely to
result in the shot detonating, and can reasonably be expected to result in very
serious, if not fatal, injuries. Therefore, I find that the violation was
S&S.

3. Negligence and
Unwarrantable Failure   

Unwarrantable
failure is aggravated conduct constituting more than ordinary negligence. Emery
Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “intentional
misconduct,” indifference,” or a “serious lack of reasonable care.” Id.
at 2001-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194
(Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136. The Commission
has
recognized the relevance of several factors in determining
whether conduct is “aggravated” in
the context of unwarrantable failure, such as the
extensiveness of
the violation, the length of time that the violation has existed, whether the violation posed a high
risk of danger, whether the violation was obvious, the operator’s knowledge of
the existence of the violation, the operator’s efforts
in eliminating the violative condition, and
whether the
operator has been
put on notice that greater efforts are necessary for compliance. See McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1993 (Aug. 2014) (citing Manalapan
Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31
FMSHRC 1346, 1350-57 (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)). Each case must
be examined on its own facts to determine whether an
actor’s conduct
is aggravated, or whether mitigating circumstances exist.
Eagle Energy, Inc.,
23 FMSHRC 829, 834 (Aug. 2001) (citing Consolidation Coal, 22 FMSHRC
at 353). Although some
factors may be irrelevant to a particular scenario,
all relevant
factors
must be examined. ICG Hazard
LLC, 36 FMSHRC 2635, 2637-38 (Oct.
2014) (citing IO Coal,
31 FMSHRC at 1351).

The Secretary charges that Saiia’s
conduct was a reckless disregard of the dangers posed by permitting mining to
continue in the face of misfires, that constituted an unwarrantable failure to
comply with the standard. The negligence of an operator’s agent is imputable to
the operator for penalty assessment and unwarrantable failure purposes. Nelson
Quarries, Inc., 31 FMSHRC 318, 328 (Mar. 2009) (citations omitted). The
parties have stipulated to Ragland’s and Looney’s status as agents of Saiia. Stip.

9. Ragland’s very public order to Harbin to “keep on digging,” where one
   misfire had been found, and Looney’s equally public order that Harbin haul any
   unearthed misfires to the dump under circumstances where, indeed, not one but
   two unfired shots had been discovered as a result of the Friday blast,
   demonstrated a pattern of aggravated conduct that rose to the level of indicia
   of unwarrantable failure - - intentional misconduct, indifference, and a
   serious lack of reasonable care. Crawley’s handling of the first misfire put
   Saiia on notice that greater efforts for compliance were necessary when the
   second misfire was encountered. The violation was obvious, significant, and
   extensive, affecting several miners within a broad radius of where they were
   working. The message was loud and clear: production over human life. Furthermore,
   after the Friday blast, the miners worked unprotected in the hazardous
   environment until Monday; likewise, they worked unprotected near the second
   misfire until Apache removed it some 30 minutes later. No credible accounts of
   the circumstances surrounding the April 9 blast attribute any timely
   precautionary behavior on the part of Saiia and, therefore, I find no
   mitigating factors. Indeed, Omya’s intervention on Monday was a godsend and,
   given the reckless conduct of Saiia’s supervisory personnel running the
   quarries, it is not surprising that Harbin chose to seek employment elsewhere. Therefore,
   I impute Ragland’s and Looney’s reckless disregard of the violative condition
   to Saiia, and find that the Secretary has met his burden of establishing a
   serious lack of reasonable care by the operator that constituted an
   unwarrantable failure to comply with the standard.

B. Ragland and
Looney

Section 110(c) of the
Act provides that, whenever a corporate operator violates a mandatory health or
safety standard, an agent of the operator who knowingly authorized, ordered, or
carried out such violation shall be subject to an individual civil penalty. 30
U.S.C.  § 820(c). In determining liability under section 110(c), the proper
legal inquiry is whether the corporate agent knew or had reason to know of a
violative condition. Lafarge Constr. Materials, 20 FMSHRC 1140, 1148
(Oct. 1998) (citing Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d
on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied,
461 U.S. 928 (1983); accord Freeman United Coal Mining Co. v. FMSHRC,
108 F.3d 358, 362-64 (D.C. Cir. 1997)). To establish section 110(c) liability,
the Secretary need only prove that an individual acted knowingly, not that the
individual knowingly violated the law. Id. (citing Warren Steen
Constr. Inc., 14 FMSHRC 1125, 1131 (July 1992)). An individual acts
knowingly where he is “‘in a position to protect employee safety and health
[and] fails to act on the basis of information that gives him knowledge or reason
to know of the existence of the violative condition.’” Id. (quoting Kenny
Richardson, 3 FMSHRC at 16). The Commission has explained that a person has
reason to know ‘“when he has such information as would lead a person exercising
reasonable care to acquire knowledge of the fact in question or to infer its
existence.”’ Id. at 1149 (citation omitted). In addition, section 110(c)
liability is generally predicated on aggravated conduct constituting more than
ordinary negligence. Id. at 1148 (citing BethEneregy Mines, Inc.,
14 FMSHRC 1232, 1245 (Aug. 1992)).

The
overwhelming weight of the evidence establishes that Ragland, in his
supervisory position over the Brown quarry, and Looney, his superior, were
responsible for protecting the safety of Saiia employees who were removing and
hauling material after the Friday, April 9 blast. On two separate occasions
post-blast, in the face of one, then a second reported misfire, Ragland, then
Looney, in earshot of several miners, knowingly ordered work to continue, despite
the obvious hazard. Even more egregious was Looney’s instruction to Harbin that
he dispose of the misfire in an unsafe manner. To say that their collective
behavior was callous fails to decry the environment in which they obviously
deemed their conduct to have been acceptable. In light of the fatal
consequences of working around live explosives, the agents’ failure to take
immediate corrective measures to eliminate the hazards amounted to an
aggravated lack of care far exceeding ordinary negligence. Therefore, I find
both Ragland and Looney, individually, liable under section 110(c) of the Act.    

IV. Penalty

While the
Secretary has proposed a civil penalty of $42,600.00 against Saiia, $3,000.00
against Ragland, and $3,300.00 against Looney, the Judge must independently
determine the appropriate assessment by proper consideration of the six penalty
criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). See
Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d
1147 (7th Cir. 1984). The penalty criteria are: the operator’s history of
previous violations; the appropriateness of the penalty to the size of the
operator’s business; whether the operator was negligent; the effect of the
penalty on the operator’s ability to continue in business; the gravity of the
violation; and the demonstrated good faith efforts in achieving rapid
compliance after notification of the violation. 30 U.S.C. § 820(i).

The Secretary’s
arguments address the Sellersburg penalty criteria respecting Saiia, but
are limited to only the gravity, negligence and good faith abatement criteria
respecting Ragland and Looney. Saiia focused its arguments solely on the fact
of violation, and failed to address the Sellersburg penalty criteria
respecting any Respondent. Furthermore, the Secretary presented no evidence of
Ragland’s and Looney’s income and net worth, and Ragland and Looney produced no
evidence of their income, net worth and family support obligations, which bear
upon the criteria upon which individual penalties are set.

A.
Saiia

Applying the
penalty criteria, I find that Saiia is a small- to medium-sized operator, with
no history of similar violations and an overall record that is not an
aggravating factor in assessing an appropriate penalty. As stipulated by the
parties, the proposed penalty will not affect Saiia’s ability to continue in
business. Stip. 8. I also find Saiia’s demonstration of good faith in achieving
rapid compliance totally lacking, given its failure to timely address discovery
of the two misfires in any reasonable manner.

The remaining
criteria involve consideration of the gravity of the violation and Saiia’s
negligence in causing it. I find subjecting workers to the adverse consequences
of working around unfired boosters for any amount of time to constitute a very
serious violation. I also find the conduct of its agents to be so highly
negligent as to be indefensible.

Therefore,
having considered Saiia’s small to medium size, its insignificant history of
violations, the seriousness of the violation, its high degree of negligence in
committing the violation, its lack of good faith compliance, and lack of any
mitigating factors, I find that a penalty of $42,600.00, as proposed by the
Secretary, is appropriate.

B. Darrell
Ragland

‘“[J]udges
must make findings on each of the [statutory penalty] criteria [of section
110(i)] as they apply to individuals.”’ Wayne R. Steen, 20 FMSHRC
381, 382 (Apr. 1998) (quoting Sunny Ridge Mining Co., 19 FMSHRC 254, 272
(Feb. 1997)). Gravity and good faith abatement may be assessed by using “the
same record evidence that is used in assessing an operator’s penalty for the
violation underlying the section 110(c) liability.” Sunny Ridge, 19
FMSHRC at 272. On the other hand, judges must assess the size and effect
criteria by way of analogy by considering an individual’s income, family
support obligations, the appropriateness of the penalty in light of the
individual’s job responsibility, and ability to pay. Id. In 110(c)
cases, penalties must be appropriate “in light of an individual’s income and
net worth.” Ambrosia Coal & Constr. Co., 19 FMSHRC 819, 824 (May
1997). The proper inquiry for the effect of a penalty on an individual is
“whether the penalty will affect the individual’s ability to meet his financial
obligations.” Id.

It is presumed, based on Saiia’s clear
record, that Ragland has no history of previous violations. It is also
presumed, based on the Secretary’s failure to present evidence regarding
Ragland’s income and net worth, that Ragland’s net worth is small. On the other
hand, since Ragland has produced no evidence of his income, net worth, and
family support obligations, it is presumed that the penalty will not affect his
ability to meet his financial obligations. See Sellersburg, 5 FMSHRC at
294 (stating that, absent proof that the imposition of penalties would
adversely affect an operator’s ability to continue in business, it is presumed
that no such adverse effect would occur). The seriousness of the violation has
been fully discussed, as has Ragland’s rank and reckless disregard of the
hazard in committing it, and his failure to abate the violation in good faith.
Therefore, I find that a penalty of $3,000.00, as proposed by the Secretary, is
appropriate.

C. Frederick
Looney

Based
on the same lack of evidence, I find, by presumption, that Looney has no history
of previous violations, that his net worth is small, and that the penalty will
not affect his ability to meet his financial obligations. The violation was
very serious, Looney supervised both quarries and displayed a reckless
disregard of the hazard in committing it, and failed to abate the violation in
good faith. Therefore, I find that a penalty of $3,300.00, as proposed by the
Secretary, is appropriate.

ORDER

WHEREFORE,
it is ORDERED that Order No. 6517482 is AFFIRMED, as issued, and
that Saiia Construction, LLC, PAY a civil penalty of $42,600.00 within
thirty (30) days of the date of this Decision.

Further
it is ORDERED that Respondent Darrell Ragland PAY a civil penalty
of $3,000.00 within thirty (30) days of the date of this Decision.

Further, it is ORDERED
that Respondent Frederick Looney PAY a civil penalty of $3,300.00 within
thirty (30) days of the date of this Decision.[4]

ACCORDINGLY,
these cases are DISMISSED.    

/s/
Jacqueline R. Bulluck

Jacqueline R. Bulluck

Administrative
Law Judge

Distribution:
(Certified Mail)

Jeremy K. Fisher, U.S. Department of Labor, Office of the Solicitor, 61
Forsyth Street, S.W., Room 7T10, Atlanta, GA 30303

John W. Hargrove, Esq., Bradley Arant Boult Cummings, LLP, One Federal
Place, 1819 Fifth Avenue North, Birmingham, AL 35203

1 Despite some erroneous
references to the Omya quarry during the course of the hearing, the events at
issue in this case took place at the Brown quarry.

2 Apache blaster Robert
Barton is also referred to in the record by his middle name, Alex. See Ex. R-3.
Smallwood’s interviews of May 13 and 18 are both presumed to be of Robert
Barton, rather than Apache blasting manager, Richard Barton. See Ex. P-1 at 5,
13, 18-19.

3
30 C.F.R. § 56.6311(b) provides that “[o]nly work necessary to remove a misfire
and protect the safety of miners engaged in the removal shall be permitted in
the affected area until the misfire is disposed of in a safe manner.”

[4]
Payment should be sent to: Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.
Please include Docket number and A.C. number.