Secretary of Labor v. Cemex de Puerto Rico

Read the official release (fmshrc.gov)

Plain-English summary

MSHA issued four enforcement actions involving Cemex's Ponce Cement Plant and Cantera Canas Mine in Puerto Rico. Two citations concerned a welder working untied on top of a mill and reaching it by climbing handrails and mill structure instead of using safe access. A third citation covered multiple defective mobile machines that remained available for use despite documented safety defects, and the fourth enforced a prior withdrawal order after miners continued using a walkway obstructed by spilled material. Judge Kenneth R. Andrews credited the inspector's account, upheld the S&S, high-negligence, and unwarrantable-failure findings where alleged, and rejected Cemex's explanations. All four actions were affirmed, with total penalties of $29,711.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.11001, 56.14100(c), and 56.15005; 30 U.S.C. § 814(b)
• Outcome: Four citations or orders were affirmed as issued, and Cemex was ordered to pay $29,711.
• Key point: Defective equipment remains in service when it is untagged, available, and capable of use, even if the operator says it was not actually operating at the inspection moment.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER, SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

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

May 23, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

CEMEX
DE PUERTO RICO,

Respondent

CIVIL
PENALTY PROCEEDINGS

Docket
No. SE 2011-502-M

A.C.
No. 54-00001-251949-01

Docket
No. SE 2011-503-M

A.C.
No. 54-00001-251949-02

Docket
No. SE 2013-130-M

A.C.
No. 54-00001-307347

Mine:
Ponce Cement Plant

Docket
No. SE 2011-504-M

A.C.
No. 54-00240-251950-01

Mine:
Cantera Canas

DECISION AND
ORDER

Appearances:               Terrence
Duncan, Esq., U.S Department of Labor, Office of the Solicitor, New York, NY
for the Secretary

Manuel A. Quilichini, Esq., Quilichini
Law Offices, San Juan, PR for Respondent

Before:
                       Judge Andrews

STATEMENT
OF THE CASE

These cases are before the undersigned
Administrative Law Judge on Petitions for Assessment of Civil Penalty filed by
the Secretary of Labor against Respondent, Cemex de Puerto Rico (“Respondent”
or “Cemex”) pursuant to Section 104 of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. §815(d). A hearing was held in San Juan, Puerto Rico on August
5, 2013.

PROCEDURAL
HISTORY

MSHA
inspector Isaac Villahermosa conducted several inspections of Respondent’s
various operations. On August 26, 2010, he conducted an inspection of the
Cantera Canas Mine and issued a citation under Section 104(d)(1) of the Federal
Mine Safety and Health Act of 1977 (“the Act”). On November 23, 2010, he
conducted an inspection of the Ponce Cement Plant and issued two citations, one
under Section 104(a) and one under section 104(d)(1). Finally, on June 20, 2012,
he conducted another inspection of the Ponce Cement Plant and issued an order
under 104(b) of the Act. Respondent contested these four issuances and each was
placed in a separate civil penalty docket (SE 2011-502-M, SE 2011-503-M, SE
2011-504-M, and SE 2013-130-M). The total assessed penalty for the four
citations was $29,711.00. On August 5, 2013 a hearing was held on these
citations. The parties submitted Post-Hearing Briefs and the Secretary
submitted a Reply Brief.

STIPULATIONS

The parties have
entered into several stipulations, admitted as Parties’ Joint Exhibit 1.[1]
Those stipulations include the following:

1.      The
Federal Mine Safety and Health Commission has jurisdiction over these
proceedings pursuant to Section 105(d) of the Mine Act, 30 U.S.C. §815(d).

2.      Respondent
Cemex De Puerto Rico was/is a mine within the meaning of Section 4 of the
Federal Mine Safety and Health Act, 30 U.S.C. §804, and has/had products which
entered interstate commerce within the meaning of §4 at the time of the
violations alleged in the citations.

3.      Respondent
Cemex De Puerto Rico was/is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, as amended, 30 U.S.C. §801 et seq., at the time
of the violations alleged in the citations.

4.      Respondent
Cemex De Puerto Rico was/is the owner/operator of the Cantera Canas Mine, I.D.

54-00240 and the Ponce Cement Plant, ID No. 54-00001, at the time of the

violations alleged in the citations.

5.      On
or about August 26, 2010, Inspector Isaac Villahermosa conducted an inspection
of Respondent’s Cantera Canas Mine.

6.      At
the end of his inspection, Mr. Villahermosa issue (sic) several citations which
alleged that Respondent was operating some of its mobile equipment with various
defects, some of which allegedly remained uncorrected for extended
periods of time.

7.      Respondent
did not contest the citations which alleged that violations existed on its
Pettibone Cranes Nos. 771 and 774, its Chevrolet Water Truck #37-007, its
Caterpillar Dozer No. 2 and its Caterpillar Loader No. 302.

8.      Respondent
only contested Citation No. 8544130 which alleged that respondent violated 30
C.F.R. §56.14100(c).

9.      At
the time of inspector Villahermosa’s inspection, Horacio Terron was the Mobile
and Crushing Equipment Maintenance Coordinator at Respondent’s Cantera Canas
Mine.

10.  Respondent’s equipment
operators inspected the equipment they operated before each shift and completed
pre-shift inspection reports.

11.  As Coordinator of
Maintenance, Horacio Terron was responsible for correcting the defects
identified in the vehicles pre-shift inspection reports.

12.  Horacio Terron supervised
Crane Operator Edwin Bautista.

13.  Edwin Bautista submitted
equipment pre-shift inspection reports for the equipment he operated to Horacio
Terron.

14.  At the time of MSHA’s
inspection, Guillermo Vazquez was Respondent’s Quarry Coordinator at the
Cantera Canans (sic) Mine.

15.  Guillermo Vazquez supervised
the equipment operators who worked at the quarry at Respondent’s Cantera Canans
(sic) Mine.

16.  The equipment operators who
worked at Respondent’s quarry at the Cantera Canans (sic) Mine inspected the
equipment they operated before each shift and completed pre-shift inspection
reports.

17.  Guillermo Vazquez received
and reviewed the equipment pre-shift inspection reports for the equipment that
operated at Respondent’s quarry at the Cantera Canans (sic) Mine.

18.  Guillermo Vazquez was
responsible for among other things, taking defective equipment out of operation
until the defects were corrected.

19.  On November 23, 2010,
inspector Isaac Villahermosa visited Respondent’s limestone plant to conduct a
second inspection.

20.  At approximately 1:30 p.m.
on November 23, 2010, Mr. Villahermosa went to the No. 11 mill at Respondent’s
cement plant.

21.  On or about November 23,
2010, Juan Martinez used the handrails located on the platform of the No. 11
mill, and then scaled the “mill’s structure” to reach the top of the mill.

22.  On or about November 23,
2010, Carlos Vargas saw Juan Martinez used (sic) the handrails located on the
platform of the No. 11 mill, and then scaled (sic) the “mill’s structure” to
reach the top of the mill.

Joint
Exhibit 1 (see also Transcript at 6-7).[2]

MILL
NO.11 CITATIONS

I.                  
SUMMARY
OF TESTIMONY

Inspector Isaac
Villahermosa conducted an inspection of Respondent’s cement plant on November
23, 2010.[3]
(Tr. 21, 118). On that day, he was initially inspecting Respondent’s lime
plant.[4]
(Tr. 22). During his lunch break at Respondent’s Mine Office, a cement plant
employee approached him and told him to go to Mill No. 11, but not until after
lunch so that miners would be there. (Tr. 22-23, 76-77). He asked the miner why
he should go to the mill and the miner said, “Just go there. You’ll see.” (Tr.
77). He had no idea what he would see. (Tr. 77-78). A trip to the cement plant
was not part of his itinerary. (Tr. 22). Villahermosa did not solicit these
comments and the miner did not describe the nature of the problem. (Tr. 23,
77).

After lunch,
Villahermosa waited for Respondent’s safety representative, Carlos Collazo, to
join him.[5]
(Tr. 23-24, 78). He did not recall who else was at the mine office that day,
beyond Collazo. (Tr. 79). However, Collazo did not arrive and, at around
1:15-1:20, Villahermosa went to the area by himself. (Tr. 23-24, 29). He did
not try to contact Collazo first. (Tr. 79).

Around the same
time, Joel Martinez left lunch and returned to work at Mill 11, as he had that
morning.[6]
(Tr. 116, 118, 130). That day he was assigned to weld over some cracks that had
occurred in the mill spout as a result of wear. (Tr. 116, 171). He did these
sorts of repairs once or twice a month and climbed up the equipment each time. (Tr.
116-117, 129-130). At the time of the hearing, he no longer did this kind of
maintenance because a new liner had been installed, making repairs unnecessary.
(Tr. 117). The spout was without a liner for a year or two. (Tr. 118). Carlos
Vargas was also working at Mill 11 and was standing at ground level.[7] (Tr. 170).

When he left the
office, Villahermosa walked down the street towards Mill No. 11.[8] (Tr. 80). To approach the
mill, he traveled on a walkway to a platform. (Tr. 24-25). He estimated that
the top of the mill was seven feet above the platform and 12 feet above the
ground, though he did not measure. (Tr. 25, 95). Martinez estimated that top of
the mill was 5 or 6 feet above the platform and 8 or 10 feet from the ground. (Tr.
126, 131-132). The parties agreed that there was spillage around the platform. (Tr.
96, 126). Respondent believed that this material would prevent a miner from
falling all the way to ground, but Villahermosa was not sure. (Tr. 96, 126).  The
top of the mill was rounded and sometimes covered in dust. (Tr. 31-32, 133).

The parties have
different accounts as to what happened once Villahermosa reached Mill 11. According
to Villahermosa, when he arrived at the cement plant he saw Martinez on top of
the mill with no harness. (Tr. 24, 26). When he first reached the walkway, he
was far from the mill and could only see someone on top. (Tr. 25). It was not
until he was on the platform that he saw that the miner was not tied to a
safety line and there was no hand rail. (Tr. 25). Because the condition was
unsafe and he feared Martinez would fall, Villahermosa told him to sit down. (Tr.
25).  

After the miner
sat down, a supervisor, Vargas, approached and Villahermosa explained the
situation. (Tr. 26, 34, 259). Villahermosa did not approach Vargas, because he
did not know that Vargas was the supervisor. (Tr. 259). Villahermosa told
Vargas that they needed to get Martinez off of the mill safely. (Tr. 26). Villahermosa
suggested using a ladder. (Tr. 26). Vargas called for a ladder and Martinez was
brought down from on top of the mill. (Tr. 26, 28).

When Martinez
got off the mill, Villahermosa questioned him. (Tr. 26). Martinez told
Villahermosa how he got up on the mill and the name of the supervisor who
directed him to perform the task. (Tr. 26-27). Martinez said he used the
handrails and the mill structure to climb to the top. (Tr. 27-28, GX-7, p.1-3).
There were two handrails on the mill platform. (Tr. 28, 95). The bottom rail
was about 20 inches above the platform. (Tr. 257). The top one was 40-44 inches
above the platform. (Tr. 31, 95-96). Martinez stated he climbed one rung (the
second), and stepped on the bearing cover. (Tr. 96). Climbing onto the
structure put Martinez at an even greater height. (Tr. 31). Martinez stated he
climbed to the top with his hands free. (Tr. 265). He stated he did not tie
himself off when climbing. (Tr. 96).

Villahermosa
believed that the way Martinez traveled to the top of the mill created exposure
to serious or fatal injury. (Tr. 30-31). The area was not safe to access. (Tr.
31). As soon as Martinez began to climb the rails, he was not protected and
could have been injured in a fall. (Tr. 31, 256). Even the lower handrail posed
a hazard, albeit a lesser one. (Tr. 257, 264). The higher the miner climbed,
the more hazardous the condition would be. (Tr. 264-265). Standing on the top
rail posed a danger because a four-foot fall could cause serious injury. (Tr.
257, 264-266). Once he reached the top of the mill, the surface was rounded,
making a slip more likely.[9]
(Tr. 31-32, 258). If he fell the 7 feet from that area, the metal in the
location could have struck his head causing a serious injury or fatality. (Tr.
31, 258). The resultant broken skull or neck could be fatal. (Tr. 34). The
miner could also break an arm or be cut. (Tr. 33).

Martinez was
wearing a lanyard and a harness but he told Villahermosa that he did not use it
to tie off. (Tr. 28-29). Villahermosa believed that Martinez did not claim he
was using the harness and lanyard to tie off until several months later during
the 110(c) investigation. (Tr. 29-30). Even if Martinez had been tied off, he
would have been exposed to a fall, though perhaps a less severe one. (Tr. 32,
265). In tying off, he would have been standing on the top rail and reaching
up, thereby exposing himself to a fall. (Tr. 256-257, 264-266). When a line is
tied off, generally the miner would like to tie off at a higher level. (Tr.
32). When climbing, a miner must reach down to unhook the tie and can fall. (Tr.
33, 258). Further, a miner can fall while tied off, and as the lanyard is 5-6
feet long, the miner could still hit structure or walkway. (Tr. 33). Further,
he could have fallen while walking to tie off on top of the mill. (Tr. 258).

Respondent’s
witnesses offered a far different account. According to Martinez, when
Villahermosa arrived at the mill, he was still on the platform and had not yet
climbed the mill.[10]
(Tr. 119). In response to questioning, Martinez told Villahermosa he would be
welding. (Tr. 119). Martinez testified Vargas arrived while they were speaking.
(Tr. 128). However, Vargas testified that Villahermosa approached him at the
ground level and that they had walked together to the platform where Martinez
was working. (Tr. 170-171). At ground level, Villahermosa had asked Vargas who
was in charge and said that he was in the area because of an imminent danger. (Tr.
170-172). Vargas said he was in charge. (Tr. 170).

Regardless of
the order of arrival, Villahermosa asked how Martinez would get to the top of
the mill and Martinez explained how he would routinely climb up while tying
off. (Tr. 119, 124-125, 130, 134, 172). This was the way he had reached the
area that morning. (Tr. 130).

Martinez
testified that after the explanation, Villahermosa requested that he
demonstrate how he would climb while tying off with his harness. (Tr. 119, 125,
142-143). Vargas testified that Villahermosa interrupted Martinez’s explanation
in asking for the demonstration. (Tr. 172). The harness was manufactured so
Martinez could tie in with two lines. (Tr. 124, 134). He had been trained on
how to climb by Respondent. (Tr. 143). He used the handrails to begin. (Tr.
120, 134). He put his feet on the first rail and tied himself to the green
lubricant pipe above his head. (Tr. 120-123, 135-136, 173). The pipe was four
to five feet above the rail, or 2 to 3 feet above his head. (Tr. 136-139). He
was cautious in balancing on the rail. (Tr. 136). Martinez then climbed to the
second handrail. (Tr. 139). He then stepped on the bearing for the mill and
tied himself to the green pipe. (Tr. 139-140, 156-157, 173). There was also an
eyelet he could tie off on. (Tr. 123, 173). When he reached the top, he would
tie off on a pipe located there, untie from the green pipe, and his assistant
would hand up his tools. (Tr. 131-133, 141-143).

On this day,
when he reached the top Villahermosa told him to sit down and not tie off while
a ladder was retrieved. (Tr. 119, 124-126, 143-144, 158, 173, 181).
Villahermosa told him to untie from the lower pipe as well. (Tr. 158-159). Vargas
also saw the inspector tell Martinez to sit. (Tr. 145, 173). Villahermosa
ordered Vargas to get the ladder. (Tr. 173-174). When the ladder arrived,
Martinez climbed down. (Tr. 127). When he got down, Villahermosa told him that
he had come to the mine over a matter of life and death. (Tr. 127). He also
said that the work could not be performed until necessary arrangements were
made to do the work safely and that the equipment had to be left on top. (Tr.
174). Vargas called his supervisor, the engineer in charge, and said that work
could not be done until arrangements were made. (Tr. 175).

Martinez knew it
was wrong to sit down without tying off and that doing so placed him in danger.
(Tr. 144-145). He followed the order because the inspector told him to do so
and he felt that he was safe while sitting. (Tr. 144-145). Vargas agreed that
Villahermosa’s instructions were unsafe. (Tr. 181-182). An untied miner could
fall and receive serious injury. (Tr. 182). Villahermosa testified that he did
not order the miner to climb the structure. (Tr. 107).

The parties
agreed that later that day, Villahermosa spoke with Martinez, Collazo, and Vargas
about the cited condition in a conference room.[11] (Tr. 35-36, 127-128,
174, 226). Vargas testified that he was asked to leave the room when Collazo
arrived. (Tr. 174). They went to the room to clarify any misunderstandings. (Tr.
36). Martinez said that the inspector told him stay calm and that no one would
fire him. (Tr. 129). Vargas said that Villahermosa gave Martinez a card and
said that “no one could touch him; that he was like a god and that no one could
fire him.” (Tr. 174). Villahermosa told those at the meeting that he had all
the information, that he had conducted all the interviews, explained the
condition, and noted the condition was an imminent danger for unsafe access. (Tr.
36, 129, 226-228, 243-244). Villahermosa said that Martinez reached the mill
through unsafe access and that handrails, access area, and spout at Mill No. 11
could not be used for climbing. (Tr. 227-228).

Villahermosa
testified that at the meeting, Callazo and Vargas confirmed that the condition
existed. (Tr. 36). He said Vargas had seen Martinez climb on the mill and did
not say that Martinez tied off. (Tr. 36, 99). Villahermosa testified that
Vargas did not mention “three points of contact”; that issue was not raised
until much later. (Tr. 99). At the meeting, Collazo said that the condition
should not be aggravated conducted because Vargas did not recognize the hazard.
(Tr. 34-35, 37, 99-100). Collazo testified that he believed the access was safe
but the inspector said that MSHA did not approve. (Tr. 228). Collazo also
testified he had not heard in training that “three points of contact” was no
longer authorized by MSHA, so he accepted what the inspector said. (Tr. 228). Villahermosa
left after speaking. (Tr. 229).

The unsafe
access citation (No. 8629721 (GX-5)) stated that an injury or illness was
reasonably likely because Martinez told the inspector that he had accessed the
area in the morning and in the afternoon in an unsafe manner. (Tr. 21, 37-38,
45-46). If Martinez were to fall 7 feet, there could be fatal injury, broken or
dislocated bones, twisted ankles, or other injuries depending on how he landed.
(Tr. 39, 46).

The inspector
testified that the citation was marked as S&S because of the combination of
the unsafe way Martinez accessed the area and the possible injury he would
sustain. (Tr. 39, 46).

Inspector
Villahermosa also testified that Respondent engaged in an unwarrantable
failure/aggravated conduct because it required Martinez to do a job without
safe access. (Tr. 40). He stated that management was aware of the miner in that
area and observed him climbing. (Tr. 40-41). He found the violation occurred as
a result of high negligence because Respondent was aware of what was required
for safe access, having been cited nine times in the past, but failed to
provide it. (Tr. 40). In fact, he believed they approved of such access because
Vargas said he did not recognize a hazard. (Tr. 40).

Villahermosa
also reviewed citation No. 8629720 (GX-12). (Tr. 37-38, 106-107). The miner was
wearing a harness but it was not tied off. (Tr. 41, 107). A photograph (GX-13)
showed Martinez sitting on the mill. (Tr. 41). There was a green pipe for Martinez
to tie off on at the top of the mill. (Tr. 43, 94). Villahermosa learned about
this place later and did not see it at the time of the issuance. (Tr. 94-95). He
did not ask Martinez if he could tie off. (Tr. 95).

Vargas did not
know when he learned that Martinez was cited for not being tied off. (Tr. 181).
He testified that he did not speak with Collazo about the violation or the
instructions not to tie off on the day of the incident. (Tr. 175, 182, 184). He
also did not speak to MSHA or file a complaint about Villahermosa’s alleged instruction
for Martinez to climb. (Tr. 175-176, 183-184). This was because he was a
mechanic’s supervisor; safety personnel were supposed to deal with those
issues. (Tr. 183-184). Vargas did not talk about the condition at all until a
meeting with Collazo three days after the alleged violation in which he learned
MSHA had issued a citation. (Tr. 175, 182, 227, 229). At the meeting, Collazo
talked about safe access. (Tr. 229, 244). At that time he did not have any
evidence to contradict the inspector’s assertion that “three points of contact”
and that the use of handrails was not safe. (Tr. 229). He told the employees
that they would need to change the method of access. (Tr. 229). Collazo heard
that Martinez was already on top of the mill when Villahermosa arrived. (Tr.
149). No one said anything to undermine this understanding or the citation, so
Collazo accepted the citation and the inspector’s explanation. (Tr. 227). Vargas
conceded that never spoke with Collazo or recommended letting MSHA know about
Villahermosa’s actions. (Tr. 184).

Respondent
decided that the citation was not accurate and drafted a letter requesting a
meeting with the MSHA supervisor, Valentin, at the local office. (Tr. 230-231,
234). This followed the protocol of the Mine Act and occurred 10 days after the
citation. (Tr. 230-231, 244). Respondent told Valentin that it had used the
“three-points of contact” method, as Martinez had done, for 5-10 years,
believed it was safe, and had never been told to discontinue the practice. (Tr.
231-232). Valentin upheld the citations, noting that the use of the handrails
as a ladder and using three points of contact was not allowed. (Tr. 231). Villahermosa
testified that “three points of contact” was for areas that already had safe
access, like a ladder. (Tr. 258, 266). It was for moving hands-free and without
falling on safe access. (Tr. 259). It could not be used everywhere. (Tr. 259). It
is not for scaling handrails and structures. (Tr. 259). Villahermosa never
cited anyone simply for the use of “three points of contact.” (Tr. 266-268).

Several weeks
after the inspection and the Valentin meeting, Jose Figueroa conducted a 110(c)
investigation. (Tr. 230, 245-246). It was during the investigation that Collazo
first heard information that contradicted the citation. (Tr. 232, 234, 245). Specifically,
Martinez stated that he was not at the mill spout when the inspector arrived. (Tr.
148-149, 233). Martinez had not spoken with management about Villahermosa’s
instructions to not tie off until that time. (Tr. 148-149). He did not know
until the investigation that MSHA believed he was caught standing on top of the
mill without tying off. (Tr. 164-167). Martinez explained to Figueoroa that
Villahermosa had asked him to demonstrate climbing the mill and asked him not
to tie off when he reached the top. (Tr. 233-234). He explained that after he
demonstrated how he climbed the inspector took the picture. (Tr. 233-234). Vargas
corroborated Martinez’s story for Collazo. (Tr. 165-166, 234, 246-247). Martinez
did not talk to Collazo about the condition until after the MSHA investigation,
despite seeing Collazo during the interim. (Tr. 152-153).

During the
investigation, Vargas asked Martinez why there was a picture of him not tied
off and Martinez explained he was following Villahermosa’s instructions. (Tr.
166-167). However, Vargas was present when Villahermosa told Martinez not to
tie off, so he was already aware. (Tr. 167). Martinez conceded that in an
October 18, 2012 deposition he testified that he did not speak with anyone,
including Vargas, about the instructions. (Tr. 150-154).

In
an October 17, 2012 deposition, Collazo stated that he filed a verbal complaint
against Villahermosa with Figueroa during the investigation. (Tr. 252-253). Specifically,
he told Figueroa that Villahermosa had lied and that Martinez’s statement was
the truth. (Tr. 253-254). Collazo also stated that Respondent did not file a
formal complaint with MSHA. (Tr. 253). However, because Respondent had learned
about the discrepancies between the citation and events, Collazo wrote a
complaint letter to Michael Davis. (Tr. 234-235, 244, 247). He did not receive
a response. (Tr. 234-235, 248). During the 110(c) investigation, Figueroa told
them that Davis received the letter and that his investigation would cover the
citations and the allegations in the letter. (Tr. 235). No further letter was
sent to Davis because Collazo believed that one was enough and feared negative
repercussions for the company if he did more. (Tr. 235-236). Collazo did not
bring a copy of the letter to the hearing, but had one. (Tr. 248).

II.               
CONTENTIONS
OF THE PARTIES REGARDING CITATION NO. 8269720

The Secretary issued two citations
following the November 23, 2010 inspection. One citation was issued for an
alleged failure on the part of Martinez to tie off on Mill No. 11 when working.
(GX-12). The other citation was issued for an alleged failure of Respondent to
provide safe access to the top of Mill No. 11. (GX-5).

With respect to Citation No. 8269720 (alleged
failure to tie off), the Secretary asserts that Respondent violated 30 C.F.R.
§56.15005, that this violation was highly likely to result in fatal injuries to
one miner, that the violation was S&S, and that it resulted from high
negligence. (GX-12)(Secretary’s Post-Hearing Brief at 18-24). The
Secretary also asserts that a penalty of $9,122.00 is appropriate. (Id.)

Respondent
asserts this it did not violate the cited standard. (Respondent’s
Post-Hearing Brief at 14). It further avers that if a violation existed, it
was unlikely to result in any injury, that any injury sustained would be “lost
workday/restricted duty” rather than fatal, and its actions would be better
characterized as showing “low” or “no” negligence. (Id.) Presumably,
Respondent would also prefer a reduction in the penalty.

III.            
FINDINGS
OF FACT AND CONCLUSIONS OF LAW REGARDING CITATION NO. 8269720

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

1.      The Secretary
Has Carried His Burden Of Proof By A Preponderance Of The Evidence That Respondent
Violated 30 C.F.R. §56.15005.

On November 23, 2010, Inspector Villahermosa
issued a 104(a) Citation, No. 8269720, to Respondent. Section 8 of that Order,
Condition or Practice, reads as follows:

A miner was observed working on top of
the #11 Mill without the safety harness and line tied. The miner had the
harness on but was not tied. The miner was exposed to falling from
approximately 7 feet to the walkway and sustaining serious or fatal injuries. The
mine operator was aware the miner was going to perform the task but did not
ensure the miner had an area where to tie off without being exposed to a
falling hazard.

This condition was a factor that
contributed to the issuance of order 8629719, dated 11/23/2010. Therefore, no
abatement time was set.

(GX-12).

The
cited standard, 30 C.F.R. §56.15005 (“Safety Belts
and Lines”), provides the following:

Safety
belts and lines shall be worn when persons work where there is danger of
falling; a second person shall tend the lifeline when bins, tanks, or other
dangerous areas are entered.

30
C.F.R. §56.15005.

With respect to a 30 C.F.R. §56.15005 violation, “the
Commission has held that a danger of falling exists when an informed,
reasonably prudent person would recognize a danger of falling warranting the
wearing of safety belts and lines.” Hunt Martin Materials, LLC, 2013 WL
1856613, 5 (Sept. 2013)(ALJ Simonton), citing Great Western
Electric Co.,
5 FMSHRC 840, 842 (May 1983); see also United Taconite, LLC, 2014 WL
1010076, * 12 (Feb. 2014)(ALJ Lewis). Therefore, the issue here is two-fold:
was the miner wearing belts or lines and, if not, would a reasonably prudent
person recognize a danger of falling. See e.g. Boart Longyear Company, 2014
WL 586878, 7 (Jan. 9, 2014)(ALJ Barbour).

In the instant matter, The Secretary
presented evidence that Respondent violated the cited standard, as described in
the citation. Inspector Villahermosa credibly testified that upon seeing
Martinez he noted that the miner was wearing his harness, but was not tied off.
(Tr. 24, 26, 28-29). The photographic evidence supports this conclusion. (Tr.
41) (GX-13). Therefore, I find that Martinez was not wearing safety belts or
lines in the manner required by regulation.

As a result, the only issue remaining in
determining the validity of this citation is whether a reasonably prudent
person would recognize a danger of falling. Once again, I find that the
Secretary presented credible evidence to prove, by a preponderance of the
evidence, that such a reasonably apparent danger existed. Inspector
Villahermosa testified that the top of the mill, where the miner was working
and standing, was not intended as a walking surface. Specifically, the top of
the mill posed a slipping hazard because it was rounded and dusty. (Tr. 31-32,
258). In addition, there was no handrail or other protection to prevent a fall.
(Tr. 25). The evidence also showed that the top of the mill was 7 feet above
the walkway and roughly 10-12 feet from the top of the mill to the ground
below. (Tr. 25, 95). Commission case law has consistently held that a fall
anywhere from 7 to 12 feet poses a danger. See e.g. Grand Western Electric
Co., 5 FMSHRC at 843 (holding that 12 feet is a substantial height from
which to fall); Morton Company, LP, 31 FMSHRC 427 (Marc. 2009)(ALJ)
(holding that a fall from 7 feet was S&S); Laramie County Road &
Bridge, 17 FMSHRC 902, 905 (Jun. 1995)(ALJ) (holding that a fall of 8-12
feet was S&S); and United Taconite, LLC, 2014 WL 1010076, supra
(holding that a fall danger of 65-inches constituted a violation of 30 C.F.R. §56.15005).

Both the unsuitability of the mill as a
walking surface, the lack of guardrails, and the dangerous height of the mill
were obvious indications of danger. Therefore, I find that a reasonably prudent
person seeing the cited condition would have recognized that the miner standing
on the mill without fall protection was in danger of falling and that belts and
lines were warranted. As such, the citation at issue here was validly issued.

In its brief, Respondent asserted
several arguments to support its claim that this citation was invalid. (Respondent’s
Post-Hearing Brief at 7-9). However, those arguments are not supported by
the evidence.

Respondent argued that both Vargas and
Martinez consistently testified that Inspector Villahermosa had created the
dangerous situation. (Respondent’s Post-Hearing Brief at 7). Specifically,
Respondent’s witnesses testified that Villahermosa asked Martinez to climb up
the mill. (Tr. 119). Further, they testified that when Martinez reached the top
of the mill, his failure to tie off was the result of Villahermosa’s specific
instructions. (Tr. 119, 124-126, 143-144, 158, 173, 181). Therefore, Respondent
argues that it was not responsible for the violation and that the citation was
invalid.

I find the
testimony of Respondent’s witnesses on this point to be incredible. First, I
find the accounts given by Respondent’s witnesses to be inconsistent. Martinez
testified that he was approached by Villahermosa as he was standing on the
platform and that Vargas arrived later, as they were speaking. (Tr. 119, 128). Vargas
testified that he was working at the ground level when Villahermosa arrived and
that he and the inspector approached Martinez together. (Tr. 170-172). Martinez
testified that after he explained how he climbed the mill, Villahermosa
requested that he demonstrate. (Tr. 119, 125, 142-143). Conversely, Vargas
testified that Villahermosa interrupted Martinez’s explanation to demand a
demonstration. (Tr. 172). Furthermore, Martinez and Vargas’ testimony is
inconsistent with Collazo’s testimony. Specifically, Martinez and Vargas stated
that when Martinez reached the top of the mill, Villahermosa told him to sit
down without tying off. (Tr. 119, 173). Collazo testified instead that Martinez
tied off on the top, but that Villahermosa asked him to untie and then sit
down. (Tr. 233-234). Respondent’s witnesses cannot agree on the basic facts
surrounding this violation.

In addition to
these discrepancies, Respondent’s witnesses did not behave in a manner consistent
with their testimony that Villahermosa ordered the violation. Martinez
testified that he knew that Villahermosa’s alleged instructions were unsafe,
but never objected (Tr. 144-145). More importantly, after the citation was
issued, Martinez did not complain about Villahermosa’s actions to MSHA or to
his supervisors at that time. (Tr. 150-154). Similarly, Vargas did not
object to Villahermosa placing the miner in danger. (Tr. 99). Also, Vargas did
not speak to his supervisor or MSHA about Villahermosa’s alleged actions after
the citation was issued. (Tr. 175-176-183-184). The fact that each witness
passively accepted an admittedly unsafe situation and then neglected to speak
about it undermines the credibility of those witnesses. Such action is
unnatural and unbelievable.

With respect to
informing his supervisors, Martinez testified that he told Vargas about
Villahermosa’s dangerous instructions several days after the citation. (Tr. 166-167).
However, Vargas was present when Villahermosa gave the unsafe instructions. (Tr.
167). This testimony is strange because, if Vargas was present to hear Villahermosa
give the dangerous instructions, then there was no need for Martinez to apprise
him of that fact several days later. (Tr. 167). Further, Martinez’s testimony
on this point at hearing directly contradicted his deposition testimony. (Tr. 150-154).
Moving up the corporate hierarchy, Vargas and Martinez testified that they did
not speak to their supervisor, Collazo, about Villahermosa’s alleged actions even
when a meeting was held regarding the citation. (Tr. 227). After the citation
was issued, Collazo testified that he spoke with Vargas and Martinez and told
them they could no longer use the railing to climb the mill. (Tr. 229).  However,
despite this admonition from their supervisor, neither Vargas nor Martinez took
the opportunity to explain that Villahermosa had instigated the violation. (Tr.
227). The fact that neither witness chose to speak seriously undermines the
credibility of their testimony.

Collazo’s
testimony further adds to the problems with Respondent’s argument. Collazo
testified that he did not learn that Villahermosa directed Martinez not to tie
off until a month after the citation, during the 110(c) investigation. (Tr.
232-234). Collazo testified that after receiving this information, he wrote a
letter to MSHA. (Tr. 234-236). He testified that he learned that MSHA had
received this letter from Figueroa during the 110(c) investigation. (Tr.
234-236). Callazo’s testimony is absurd. If Callazo learned about
Villahermosa’s instructions during the 110(c) investigation, then it was
impossible for the investigator to have information regarding a letter Callazo
wrote complaining about that instruction. He would have had to write the letter
before he learned of a reason for drafting that letter. As Respondent presented
no evidence that Callazo was capable of somnambulant psychic letter-writing, no
weight can be given to this testimony.

Finally,
regardless of the actions or testimony of Respondent’s witnesses, I find that
there would be no reason for Inspector Villahermosa to ask Martinez to climb
the mill. “Once an inspector has identified a violation, there is no
requirement in the Mine Act or Commission case law that he endanger himself or
a miner by exposure to the conditions giving rise to the violation.” Western Industrial, Inc., 25 FMSHRC 449, 453 (Aug.
2003). If Martinez told the inspector that he worked on top of the mill and the
inspector felt that doing so was a violation of the Act, he was within his
rights to issue a citation. The inspector did not need to place Martinez in
danger to justify the issuance of the citation. In short, there was no
incentive for Inspector Villahermosa to entrap Respondent.

This
inconsistent testimony and inexplicable behavior is insufficient evidence upon
which to base a finding that the Inspector framed or had some sort of vendetta
against Respondent. Instead the far more likely scenario, and the one supported
by the preponderance of the evidence, is the explanation given by Inspector
Villahermosa. Specifically, that the inspector arrived at the mill following an
anonymous tip and found a miner already standing on top of the mill, untied. (Tr.
24, 26, 28-29). Villahermosa consistently testified to these events at all
stages of this litigation and the photographic evidence supports his testimony.
This would explain why Respondent’s witnesses related different stories and why
they did not quickly complain about Villahermosa’s action: there was nothing to
complain about. I find that Respondent’s witnesses either became confused about
events that occurred several years in the past or, perhaps, formulated their
stories after the fact for the purposes of litigation.[12]

In a related argument, Respondent
contended that the inspector’s testimony was unreliable and could not form the
basis of a finding that a violation took place. (Respondent’s Post-Hearing
Brief at 7-8). I find that there is no credible evidence to support this
claim.  I will address each instance of allegedly unreliable testimony from the
inspector in turn.

Respondent noted that Villahermosa
testified that he saw the miner from a distance, but that photographs submitted
by Respondent’s counsel showed that he could not possibly see the top of the
mill until he was standing on the platform below. (Respondent Post-Hearing
Brief at 7-8). However, the photographs relied upon by Respondent were
admitted only as demonstrative evidence so show what the area looked like. (Tr.
81-83, 127, 161-162). Those photographs did not show Villahermosa’s point of
view when he entered the area and are not evidence of what he could see. (Tr. 81-83).
Villahermosa credibly testified that from where he approached the mill, he
could see the miner on top of the mill from a distance. (Tr. 24-26). In fact,
one of Villahermosa’s photographs shows the miner at a distance. (GX-13). I
find Villahermosa’s testimony on this point credible and consistent with other
evidence in this proceeding.

Respondent contended the Villahermosa
was also unreliable because he was unable to recall how he reached the mill
area. (Respondent’s Post-Hearing Brief at 8). In so doing, Respondent
refers to an exceedingly confusing section of the transcript (the testimony
contained several references to locations situated “here” and “there” with no
explanation as to what “here” or “there” meant relative to anything else). (Tr.
82-83). In that section Villahermosa stated that, in reviewing photographs
taken by Respondent’s counsel, he was unsure of where he had entered the area. (Tr.
82-83). He stated that the inspection had been three years earlier and he was
not positive of which route, between two possible avenues, he had taken. (Tr.
83). However, Respondent’s counsel conceded that the photographs had been taken
just weeks before the hearing. (Tr. 84). No witness ever authenticated these
photographs. It is entirely possible that the area looked different in the
photographs than it did during the inspection. Further, as stated supra,
the point of view in the photographs was not the same as the one Villahermosa
had during the inspection. (Tr. 81-83). A photograph shown from the angle of
his approach may have refreshed the inspector’s memory. Perhaps most
importantly, I find that even if Villahermosa simply forgot the route he took to
reach the mill, this failure to recall would not be grounds upon which to
discredit his testimony. Inspector Villahermosa’s goal that day was to inspect
the mine for violations, not to memorize a route. Inspector Villahermosa
sufficiently recalled the substantive aspects of his inspection; failure to
recall unnecessary details does not undermine his credibility.

Respondent further contended that
Villahermosa was unreliable because on direct examination he did not state that
he asked the anonymous informant why he should inspect the mill, but on
cross-examination he stated he did. (Respondent’s Post-Hearing Brief at
8). Respondent fails to note in its brief that during direct examination,
Villahermosa was not questioned about what he stated to the anonymous
informant. (Tr. 22-23). Only when Respondent’s counsel specifically asked
Villahermosa his response to the miner, did the inspector provide that
information. (Tr. 77). Villahermosa’s testimony was in no way inconsistent and
I find no reason to question his credibility on this point.[13]

Respondent also argued that it was
strange Villahermosa could remember the details of who he spoke with during
this inspection, but could not remember the name of the person who spoke to
regarding the BC-N conveyor citation, which occurred two years later. (Respondent’s
Post-Hearing Brief at 8)(Tr. 59). While it is true that Inspector
Villahermosa never stated who he spoke with regarding the BC-N conveyor Order,
there is a good reason for this. No one asked. The evidence does not show that
Villahermosa was unsure who he spoke with, the record is completely silent on
that issue. I do not find Villahermosa’s testimony is incredible simply because
he did not answer a question that was not asked.

Respondent’s final argument with respect
to Villahermosa’s credibility is that the Inspector could remember minute
details of the inspection but could not recall where he waited for Respondent’s
representative after lunch. (Respondent’s Post-Hearing Brief at 8). As
noted supra, the Inspector’s goal that day was to inspect the mine for
violations, not to memorize locations. The fact that the inspector could recall
details regarding the violations but could not recall irrelevant details does
not undermine his credibility. In fact, it shows that he was focused on the
substantive matter at hand.

Respondent attempts to contrast
Villahermosa’s alleged lack of credibility with Vargas’ credibility. (Respondent’s
Post-Hearing Brief at 7-8). Specifically, Respondent noted several times
that Vargas no longer worked for Respondent and, therefore, his testimony was
unbiased. (Id.).  As noted supra, there are several logical
inconsistencies in Respondent’s witnesses’ testimony that undermine Vargas’
credibility, regardless of his level of bias. Further, Vargas testified that he
was still friends with several of Respondent’s miners. (Tr. 178). Therefore, he
was not wholly neutral or disinterested. Perhaps most importantly, even if
Vargas were credible, that would not change the fact that Villahermosa was also
credible while Martinez and Collazo were not.

Respondent’s final argument was that a
reasonably prudent person would not perceive this condition as a danger. (Respondent’s
Post-Hearing Brief at 8-9). To that end, Respondent argued that
Villahermosa was overly pessimistic regarding the hazard posed by a 7-foot
fall. (Id.). Further, it noted that pads eyes were present for tie off
on top of the mill. (Id.). As noted supra, relevant case law
supports a finding that a 7-foot fall can pose a serious hazard. In fact, the
existence of the pads eye shows that Respondent recognized that a 7-foot fall
could pose a danger. The danger of a fall was apparent to anyone working for Respondent
and this tie-off point was added. Unfortunately, Martinez was not tied off when
the Inspector arrived. (Tr. 24, 26, 28-29). Therefore, the miner was exposed to
a fall. A reasonably prudent person would recognize this exposure.

The preponderance of the evidence shows
that Martinez was
not properly wearing the required belts or lines and that a reasonably prudent
person would recognize a danger of falling. Therefore, this citation was
validly issued.

2.      The Violation
Was Highly Likely to Result in a Fatal Injury to One Miner And Was Significant
And Substantial In Nature

Inspector Villahermosa marked the
gravity of the cited danger in Citation No. 8269720 as “Highly Likely” to
result in “Fatal” injury to one person. (GX-12). These determinations are
supported by a preponderance of the evidence.

The Mine Act requires that the “gravity
of the violation” be considered in assessing a penalty. 30 U.S.C. §820. The
Secretary has promulgated a three-factor inquiry to determine the gravity of a
citation for purposes of determining the penalty. Those factors are:

[T]he likelihood of the occurrence of
the event against which a standard is directed; the severity of the illness or
injury if the event has occurred or was to occur; and the number of persons
potentially affected if the event has occurred or were to occur.

30
C.F.R. §100.3(e).

The
event against which the instant standard, 30 C.F.R. §56.15005 is essentially stated
in the language of the rule. Specifically, the standard is designed to protect
miners from situations in which “there is danger of falling.”  Here, the
inspector credibly testified that a fall from the top of the mill was highly
likely to result in a fatal injury. Specifically, Inspector Villahermosa stated
that the
top of the mill, where Martinez was standing, was not intended as a walking
surface. Instead, the top of the mill was rounded and dusty, creating a
slipping hazard. (Tr. 31-32, 258). Further, there was no handrail or other
protection to prevent a fall. (Tr. 25). Finally, the miner was not tied off. (Tr.
24,26, 28-29, 96). Given these conditions, it was highly likely that a miner
working and using equipment on top of the mill would eventually slip and fall
the 7 feet to the walkway below. A fall from that height could be fatal. Inspector
Villahermosa credibly testified that if Martinez fell 7 feet, there could be
fatal injury, broken or dislocated bones, twisted ankles, or other injuries
depending on how he landed. (Tr. 39, 46). Relevant case law supports a finding
that a fall from around this height onto a walkway can be fatal. See e.g.,
United Taconite, LLC, 2014 WL 1010076, supra. Therefore, a fall
was highly likely to result in fatal injury.

Respondent
argued that such a fall would be unlikely to result in a fatality because the tie
off points were a reasonable and acceptable safety measure that prevented a
fall. (Respondent’s Post-Hearing Brief at 11). As noted supra, the
credible evidence shows that the miner was not tied off was highly likely to
fall 7 feet onto his head or neck. (Tr. 31-34, 258). Perhaps if the miner had
used the tie-off point, the likelihood or the severity of the danger would be
lessened. Unfortunately, Martinez was exposed to a 7-foot fall while standing
on a slippery, rounded mill. Respondent’s argument is not supported by the
evidence.

Finally, only one miner was on top of
the mill. (Tr. 24, 26). There was no indication that more than one miner would
ever be working on top of this area. As a result, the preponderance of the
evidence supports a finding that one person would be affected.

Therefore, I find that the cited
violation was highly likely to result in fatal injuries to one miner. I will
now turn to the S&S designation in this matter.

Well-settled Commission precedent sets
forth the standard used to determine if a violation is S&S. A violation is
S&S “if, based upon the particular facts surrounding the violation there
exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981). The Commission later clarified
this standard, explaining:

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.

Mathies
Coal Co.,
6 FMSHRC 1, 3-4 (Jan. 1984).

With respect to the first element, the
underlying violation of a mandatory safety standard, it has already been
established that Respondent violated 30 C.F.R. §75.15005.

With respect to the second element of Mathies,
a discrete safety hazard – that is a measure of danger to safety – contributed
to by the violation – As discussed supra, the cited condition
contributed to the danger of a fall. The miner was standing on a mill 7 feet
above a platform without a tie-off. (Tr. 24, 26, 28-29, 126, 131-132). As has
already been stated, this made a fall highly likely.

The third element of the Mathies
test – a reasonable likelihood that the hazard contributed to will result in an
injury – was also met. The preponderance of the evidence establishes that the
hazard contributed to in this matter would be reasonably likely to result in
injury.

The Commission clarified the third
element of the Mathies test in Musser Engineering, Inc., and PBS Coal
Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”). The Commission held that
the “test under the third element is whether there is a reasonable likelihood
that the hazard contributed to by the violation, i.e., [in that case] the
danger of breakthrough and resulting inundation, will cause injury.” Id.
at 1281. Importantly, it clarified that the “Secretary need not prove a
reasonable likelihood that the violation itself will cause injury.” Id. The
Commission concluded that the Secretary had presented sufficient evidence that
miners who broke through into a flooded adjacent mine would face numerous
dangers of injury. Id. 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); Blue Bayou
Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996).

If the hazard contributed here were
realized, specifically if the miner were to fall off of the mill, an injury
would be highly likely. Inspector Villahermosa credibly testified that if Martinez fell
7 feet to the walkway below, there could be a fatal injury, broken or
dislocated bones, twisted ankles, or other injuries depending on how he landed.
(Tr. 39, 46). Other ALJs have found similar hazards to be sufficiently likely
to cause injury to support an S&S designation. See e.g. Morton Company,
LP, supra; Laramie County Road & Bridge, supra;
and United Taconite, LLC, supra.

Respondent argued that the hazard
contributed to by this violation created no likelihood of an injury.  (Respondent’s
Post-Hearing Brief at 11). However, this argument was not compelling. Respondent
argued that the inspector testified that any fall would be serious, but that
this understanding was not “objective.” Further, Respondent argued that it used
precautions to prevent a fall. The Inspector’s understanding of whether a fall
would be serious at different heights is immaterial to this issue. The only
issue is whether a fall from 7 feet would be reasonably likely to result in an
injury. The credible evidence shows that such a fall could result in a
multitude of injuries. (Tr. 39, 46). Further, the evidence showed that no
“precautions” were used. The miner was standing on top of the mill and was not
tied off. (Tr. 24, 26, 28-29). Therefore, the third prong of Mathies is
met.

Under Mathies, the fourth and
final element that the Secretary must establish is that there was a “reasonable
likelihood that the injury in question will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC 1573,
1574 (July 1984). As discussed supra, the inspector credibly testified
that a fall from the mill could result in serious, perhaps fatal injury. (Tr.
39, 46). A fatal injury (or broken bones) would be undoubtedly be serious. As a
result, the fourth prong of Mathies is met.

As a result of these factors, I find
that the Secretary proved the violation was S&S by a preponderance of the
evidence.

3.      Respondent’s
Conduct Displayed “High” Negligence.

In the citation at issue, Inspector Villahermosa
found that the operator’s conduct was highly negligent in character. (GX-12).

Standard 30 C.F.R. §100.3(d) provides
the following:

(d) Negligence.
Negligence is
conduct, either by commission or omission, which falls below a standard of care
established under the Mine Act to protect miners against the risks of harm.
Under the Mine Act, an operator is held to a high standard of care. A mine
operator is required to be on the alert for conditions and practices in the
mine that affect the safety or health of miners and to take steps necessary to
correct or prevent hazardous conditions or practices. The failure to exercise a
high standard of care constitutes negligence. The negligence criterion assigns
penalty points based on the degree to which the operator failed to exercise a
high standard of care. When applying this criterion, MSHA considers mitigating
circumstances which may include, but are not limited to, actions taken by the
operator to prevent or correct hazardous conditions or practices.

In
30 C.F.R. §103(d), Table X, the category of high negligence is described
thusly: “The operator knew or should have known of the violative condition or
practice and there are no mitigating circumstances.” Conversely, moderate
negligence is shown when “[t]he operator knew or should have known of the
violative condition or practice, but there are some mitigating circumstances.” Low
negligence is served for situations where there are “considerable” mitigating
circumstances.

I find that Respondent knew about the
violation and that there were no mitigating factors. With respect to knowledge,
well-settled Commission precedent recognizes that the negligence of an operator’s
agent is imputed to the operator for penalty assessments and unwarrantable
failure determinations. See Whayne Supply Co., 19 FMSHRC 447, 451
(Mar. 1997); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194-197
(Feb. 1991); and Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-1464 (Aug.
1982). An agent is defined as someone with responsibilities normally delegated
to management personnel, has responsibilities that are crucial to the mine’s
operations, and exercises managerial responsibilities at the time of the
negligent conduct. Martin Marietta Aggregates, 22 FMSHRC 633, 637-638
(May 2000) see also 30 U.S.C. §802(e) (an agent is “any person charged
with responsibility for the operation of all or part of a…mine or the
supervision of the miners in a…mine.”).

With respect to the instant violation, the
evidence shows that Respondent’s agent, Vargas, had actual knowledge of this
violation. There is no question that Vargas was an agent. His title was Industrial
Mechanic Supervisor and he testified that he oversaw the work of the mechanics
like Martinez. (Tr. 169). In fact, Vargas directed Martinez to climb on top of
the mill. (Tr. 26-27). Villahermosa testified that when he arrived at the mill,
Vargas was watching Martinez. (Tr. 40-41). Martinez and Vargas both conceded
that Vargas was present and observed Martinez on top of the mill; albeit with
the discredited explanation that Villahermosa caused him to be there. (Tr. 128,
145, 173). As a result, it is clear that Vargas, and therefore Respondent, was
aware of the violation.

Having found the requisite knowledge, the next issue
is whether there were any mitigating circumstances. I find that none existed. Therefore,
I find the Secretary’s designation of “high” negligence appropriate.

Respondent argued that there were mitigating
circumstances. It noted again that precautions were taken for working atop the
mill, including the installation of pad-eyes. (Respondent’s Post-Hearing
Brief at 11-12). While the installation of pad-eyes may have been a
mitigating circumstance if they were used, the evidence here shows that the
miner was not tied off. (Tr. 24, 26, 28-29). The mere existence of a tie off
point, if unused, does not mitigate Respondent’s negligence.

Respondent also argued that Martinez followed all
safety precautions until he was required to stop by Inspector Villahermosa. (Respondent’s
Post-Hearing Brief at 12). As noted supra, I do not find any
reliable evidence exists to support a finding that Inspector Villahermosa
framed Respondent. As a result, I cannot find the alleged conspiracy by MSHA to
be a mitigating circumstance.

4.     
Penalty

Under the assessment regulations
described in 30 CFR §100, the Secretary proposed a penalty of $9,122.00 for
Citation No. 8269720. The Commission has affirmed that ALJs are not bound the
Secretary’s proposals. Sec. v. Performance Coal Co., (Docket No. WEVA
2008-1825 (8/2/2013) (see also 30 U.S.C. §820(i) and 29 C.F.R.
§2700.30(b)). However, the Commission also held that, although there is no
presumption of validity given to the Secretary’s proposed assessments,
substantial deviation from the Secretary’s proposed assessments must be
adequately explained using §110(i) criteria. (Id. at p. 2). (see also
Cantina Green, 22 FMSHRC 616, 620-621 (May 2000)). However, having affirmed
the Secretary’s determinations in all respects, no deviation is necessary. In
fact, the proposed penalty is appropriate under the Act. Therefore, Respondent
is hereby ORDERED to pay a civil penalty in the amount of $9,122.00 with
respect to this violation.

IV.            
CONTENTIONS
OF THE PARTIES REGARDING CITATION NO. 8269721

With respect to Citation No. 8269721
(alleged failure to provide safe access), the Secretary asserts that Respondent
violated 30 C.F.R. §56.11001, that this violation was reasonably likely to
result in fatal injuries to one miner, that the violation was S&S, that it
resulted from high negligence, and that it was an unwarrantable failure to
comply. (GX-5)(Secretary’s Post-Hearing Brief at 13-18). The Secretary
also asserts that a penalty of $11,900.00 is appropriate. (Id.)

With Respect to Citation No. 8269721,
Respondent asserts that the alleged violation was unlikely to result in any
injury, that any injury sustained would be “lost workday/restricted duty”
rather than fatal, and its actions would be better characterized as showing
“low” or “no” negligence. (Respondent’s Post-Hearing Brief at 14.) Presumably,
Respondent would also prefer a reduction in the penalty.

V.               
FINDINGS
OF FACT AND CONCLUSIONS OF LAW REGARDING CITATION NO. 8269721

1.      The Secretary
Has Carried His Burden Of Proof By A Preponderance Of The Evidence That Respondent
Violated 30 C.F.R. §56.11001.

On November 23, 2010, Inspector Villahermosa
issued a 104(d)(1) Citation, No. 8269721, to Respondent. Section 8 of that
Order, Condition or Practice, reads as follows:

A safe access was not provided to work
on top of #11 Mill. A welder climbed the area using the hand rails and mill
structure to climb on top of the mill. The welder was exposed to sustaining
serious or fatal injuries if he fell from approximately 7 feet to the ground. The
Mechanical Supervisor showed a lack of degree of care since he directed the
welder to work in the area and observed him access the area without taking any
preventative or corrective actions. Mechanical Supervisor Carlos Vargas engaged
in aggravated conduct constituting more than ordinary negligence in that he was
aware of the lack of safe access to the top of the mill and directed the welder
to access the area. Mr. Vargas also observed the welder climb using the rails
and mill structure and did not take any actions to stop the welder. This was an
unwarrantable failure to comply with a mandatory standard. The mine operator
has been cited 9 times for this standard.

(GX-5).

The
cited standard, 30 C.F.R. §56.11001 (“Safe Access”),
provides the following:

Safe means
of access shall be provided and maintained to all working places.

30
C.F.R. §56.11001.

The Commission has held that this standard “comprises
the dual requirements of providing and maintaining safe access to working
places.” Watkins Engineers & Constructors, 24 FMSHRC 669, 680 (July
2002) (citation omitted).  The Commission held that the second portion of that
duty, to “maintain” safe access” is “an on-going responsibility … to ensure
that a means of safe access is utilized.” Id. In reading and applying
the terms of section 56.11001, the Commission has utilized a “plain meaning”
approach. See e.g. Lopke Quarries, Inc., 23 FMSHRC 705, 707-708 (July
2001). In determining the plain meaning of 30 C.F.R. §56.11001, the Commission
has previously approved of the using the definition of “safe” found in Webster's
Third New International Dictionary 1998 (1993), which defines “safe” as
“secure from threat of danger, harm, or loss.” Western Industrial, Inc.,
25 FMSHRC at 452. Therefore,
the existence of a §56.11001 violation turns on whether access to a work area
posed a danger to miners. Id. Because the cited standard is broadly
worded, determining in a given situation whether a danger existed should consider
whether “a reasonably prudent person familiar with the mining industry and the
protective purposes of the standard would have recognized the” hazard. Ideal
Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990).

In the instant matter, The Secretary
presented credible evidence that Respondent violated the cited standard, as
described in the citation. There is undisputed evidence that Martinez was assigned
to climb up the mill platform to perform repairs. (Tr. 116). Further, there is
no question that Martinez used the handrails as a sort of makeshift ladder to
climb up the mill. (Stip. 21) (Tr. 26-28, 119-125, 129-130, 173). In fact,
Vargas saw Martinez climb up the handrails in this manner. (Stip. 22) (Tr. 35, 173).
Villahermosa credibly testified that Martinez did not tie off with his harness as
he climbed. (Tr. 28-29). Villahermosa further testified that this condition
exposed Martinez to serious or fatal injury from a fall. (Tr. 30-32, 34). Such
an injury could have been caused by falling from the handrail or from falling
while higher up and hitting his head. (Tr. 119-123). The miner also could have
fallen during descent from the mill. (Secretary’s Post-Hearing Brief at
15).

A reasonably prudent person would have
recognized that an untied miner, scrambling up a handrail while untied would face
a hazard. Utilizing this method of accessing the top of the mill was unsafe. Therefore,
the citation is valid.

In its brief, Respondent asserted
several arguments to support its claim that this citation was invalid. (Respondent’s
Post-Hearing Brief at 7-9). However, those arguments are not supported by
the evidence.

As with Citation No. 8269720, Respondent
argued that both Vargas and Martinez consistently testified that Inspector
Villahermosa had created the dangerous situation. (Respondent’s Post-Hearing
Brief at 7). Respondent also contended that Inspector Villahermosa’s
testimony regarding the access was unreliable. (Id. at 7-8). For the
reasons discussed with respect to Citation No. 8269720 supra, I find
that the substantial evidence does not support these arguments. To the
contrary, I find that a preponderance of the evidence supports Inspector
Villahermosa’s credible testimony that Martinez used the unsafe access cited
before Villahermosa had arrived at the mill. (Tr. 24, 26, 28-29, 96). Further,
I find that Villahermosa’s testimony, in contrast to the testimony of Vargas
and Martinez, was highly credible.

Respondent also argued that the way in
which the miner accessed the work area was safe. (Respondent’s Post-Hearing
Brief at 8-9) Respondent claimed that pads eyes were present and that
Martinez claimed that he tied off while climbing. (Tr. 32, 123-124, 141-142) I
credit the testimony of Inspector Villahermosa that Martinez was not tied off
while climbing. (Tr. 96). I further credit the testimony of the inspector that
even if the miner had been tied off, that he would have been exposed to a
danger, albeit a slightly lesser one. (Tr. 32, 265). The cited condition
occurred at an industrial work site, not at a jungle gym. There was absolutely
no reason for a miner to be climbing on handrails or scrambling up the side of
a mill. Even if Martinez had been tied off, it would still be inappropriate and
unsafe for him to climb on the handrails and structure in this manner. A
ladder, like ones provided at other mills at the mine, should have been
provided for Martinez.

With respect to safety, Respondent also
noted that Martinez’s hands were empty as he climbed, that he maintained “three
points of contact” and that items were handed up to him (rather than carried
during the climb). (Respondent’s Post-Hearing Brief at 9). The evidence
presented supports these assertions; however these issues are largely inconsequential
to the outcome here. Even if Martinez’s hands were empty and he was able to
maintain “three points of contact” there was still a violation of the cited
standard. The issue was that Martinez scrambled to the top of the mill using
handrails. Even if his hands were free, he was exposed to a dangerous fall from
the mill. Further, as noted by Judge Lewis in discussing a similar standard,
“[n]othing in the Act, regulations, or case law provides an exception to the
rule based on points of contact. Respondent cites to no legal authority for the
proposition that three or four points of contact eliminates an imminent fall
danger.” United
Taconite, LLC,
2014 WL 1010076, supra. Villahermosa testified that “three points of
contact” is a standard used for otherwise safe access, not for scrambling up
the side of equipment. (Tr. 258, 266).

Respondent also argued that Inspector
Villahermosa’s belief about the degree of danger was unreasonable. (Respondent’s
Post-Hearing Brief at 8-9). Specifically, it noted that the Inspector
believed that Martinez was in danger of a serious injury even when he was only
four feet off the ground. (Tr. 265). I credit the testimony of Inspector Villahermosa
that a fall, even from as low as four feet, could pose a serious danger to a
miner. However, I further find that this issue is largely academic. The
evidence presented shows that the miner was exposed not only to a four foot
fall, but a seven foot fall from climbing. As discussed at length with respect
to Citation No. 8269720, such a fall would constitute a serious danger. As a
result, whether a four-foot fall could cause a serious or fatal injury is
irrelevant to the instant matter.

Respondent’s
final argument is that use of the handrails was not prohibited by MSHA’s rules
or regulations and that Respondent had used this method to climb for ten years.
(Respondent’s Post-Hearing Brief at 9). While it is true that the
standard does not specifically state that climbing on handrails is prohibited,
this is because the standard is broadly worded to encompass any unsafe access. The
fact that this broad statement does not include a specific reference to
climbing up the side of a mill is not fatal to this citation. Further, the
Commission has held that the issue with respect to such a broadly worded
standard is not actual notice, but whether a reasonably prudent person would
recognize the danger. Ideal Cement Co., supra. Even if Respondent
had no prior notice that scrambling up the side of the mill was unsafe, it
should have been readily apparent to anyone watching, including Vargas, that
Martinez was in danger of falling. Therefore, Respondent’s argument does not
undermine the validity of this citation.

The preponderance of the evidence shows
that the access provided was unsafe. Therefore, this citation was validly
issued.

2.      The Violation
Was Reasonably to Result in a Fatal Injury to One Miner And Was Significant And
Substantial In Nature

Inspector Villahermosa marked the
gravity of the cited danger in Citation No. 8269721 as “Reasonably Likely” to
result in “Fatal” injury to one person. (GX-5). These determinations are
supported by a preponderance of the evidence.

The
event against which the instant standard, 30 C.F.R. §56.11001 is applied is exposure
to dangerous conditions while accessing a workplace. Here, the inspector
credibly testified that a fall while climbing up the mill would be reasonably
likely to result in a serious, perhaps fatal, injury. (Tr. 30-32, 34). Specifically,
Inspector Villahermosa testified that if Martinez had fallen while climbing up
the handrails, he could have hit his head or neck. (Tr. 119-123). This type of
fall could have resulted in a broken neck or fractured skull. (Tr. 34). Martinez
could also have been injured as he reached the top of the mill and fallen from
an even greater height. (Tr. 31-32, 34, 133). He could have also fallen during
his descent. As the miner was untied and using handrails (and other structure)
in an unintended fashion to climb, such injuries were reasonably likely to
occur.

Respondent
argued that such a fall would be possible, but would be less serious because
the miner was tied off. (Respondent’s Post-Hearing Brief at 12-13).  As
discussed at length supra, I found that Martinez and Vargas to be
incredible witnesses as it relates to Martinez accessing the mill. I credit the
testimony of Inspector Villahermosa that the miner was not tied-off when he
first arrived and further that Martinez conceded that he had not tied off on
his climb. (Tr. 24, 26, 28-29, 96). Further, given the unintended use Martinez
made of the handrails and the mill, as well as the large amount of equipment
and other items in the mill area, I find that even if Martinez was tied-off, he
faced considerable hazards. Therefore, I affirm the Secretary’s findings with
respect to gravity.

Finally, only one miner was on top of
the mill. (Tr. 24, 26). There was no indication that more than one miner would
ever be working on top of this area. As a result, the preponderance of the
evidence supports a finding that one person would be affected.

With respect to S&S, the first
element - the underlying violation of a mandatory safety standard - it has
already been established that Respondent violated 30 C.F.R. §75.11001.

With respect to the second element of Mathies,
a discrete safety hazard – that is a measure of danger to safety – contributed
to by the violation – was also met. As discussed supra, the cited
condition contributed to the danger of a fall. The miner was scrambling up the
side of a mill using handrails to a work area 7 feet above a platform (10 feet
above the ground) without a tie-off. (Tr. 39, 46). The miner was reasonably
likely to fall.

Respondent argued that the cited
condition did not contribute to a safety hazard because climbing the structure
was safe, even if other methods might have been safer. (Respondent’s
Post-Hearing Brief at 12). As discussed at length, Respondent’s decision to
allow Martinez to scramble up the side of the mill untied exposed the miner to
a fall. This is not a conflict between two “safe” options, one preferred by the
operator and one by the inspector. Respondent’s method did not provide
the requisite safety to the miner.

Respondent also argued that the cited
condition did not contribute to a safety hazard because the miner used “three
points of contact” and was tied. (Respondent’s Post-Hearing Brief at
12). As noted before, the use of “three points of contact” does not transform
an otherwise unsafe access into a safe access. As noted by the inspector,
“three points of contact” is a safety precaution used for proper forms of
climbing, like using ladders or stairs, not for scrambling up handrails. (Tr. 258,
266). Further, as discussed supra, I credited the testimony of Inspector
Villahermosa that the miner was not tied off. However, I find that even if
Martinez was tied off, the miner’s method of scrambling up the side of the mill
on the handrails exposed him to a fall, which constitutes a safety hazard. Therefore,
even if he were tied off, the second prong of Mathies would be met.

The third element of the Mathies
test – a reasonable likelihood that the hazard contributed to will result in an
injury – was also met. The preponderance of the evidence establishes that the
hazard contributed to in this matter would be reasonably likely to result in
injury. As discussed supra, in the event of a fall from the side or top
of the mill, a miner would be reasonably likely to suffer an injury, including
a fractured neck or skull or other serious injuries. (Tr. 39, 46).

Respondent argued that the hazard
contributed to by this violation created no likelihood of an injury because the
miner was tied off.  (Respondent’s Post-Hearing Brief at 12). Once
again, I credited the testimony of Inspector Villahermosa that the miner was
not tied off. Further, even if the miner had been tied off, the unsafe climb
still exposed the miner to a fall that would have result in an injury. Therefore,
even if he were tied off, the third prong of Mathies would be met.

The fourth element - that the injury be
of a reasonably serious nature - was also met. As discussed supra, the
inspector credibly testified that a fall from the mill could result in serious,
perhaps fatal injury. (Tr. 39, 46). A fatal injury (or a fracture neck) would
be undoubtedly be serious. As a result, the fourth prong of Mathies is
met.

As a result of these factors, I find
that the Secretary proved the violation was S&S by a preponderance of the
evidence.

3.      Respondent’s
Conduct Displayed “High” Negligence and an Unwarrantable Failure.

In the citation at issue, Inspector Villahermosa
found that the operator’s conduct was highly negligent in character. (GX-5). The
substantial evidence supports this designation.

With respect knowledge, the factual
situation presented here is substantially similar to that in Citation No.
8269720. Specifically, a supervisor within in the definition provided in 30
U.S.C. 802(e) and Martin Marietta Aggregates, supra, witnessed
the cited action and actually directed it. (Tr. 26-27, 40-41). Therefore,
Vargas was clearly aware of the violation. Further, as a supervisor, Vargas’
conduct was imputed to Respondent. Whayne Supply Co., supra; Rochester
& Pittsburgh Coal Co., supra; and Southern Ohio Coal Co.,
supra.

Having found the requisite knowledge, the next issue
is whether there were any mitigating circumstances. I find that none existed. Therefore,
I find the Secretary’s designation of “high” negligence appropriate.

Respondent argued that there were mitigating
circumstances. However, Respondent addressed those arguments in its brief to
the issue of unwarrantable failure. As a result, those arguments will be discussed
in the unwarrantable failure discussion infra.

The Commission has recognized the close
relationship between a finding of unwarrantable failure and a finding of high
negligence. San Juan Coal Co., 29 FMSHRC 125, 139 (Mar. 2007) see
also Consolidation Coal Company, 22 FMSHRC 340, 353 (2000) (holding that if
there is mitigation, an unwarrantable failure finding is inappropriate). Emery
Mining Corp., defines an unwarrantable failure, as “aggravated conduct
constituting more than ordinary negligence.” Emery Mining Corp., 9
FMSHRC 1997, 2002 (Dec. 1987). Such conduct may be characterized as reckless
disregard, intentional misconduct, indifference, or serious lack of reasonable
care. Id. at 2004; see also Buck Creek Coal, 52 F.3d 133, 135-136
(7th Cir. 1995). The Commission formulated a six-factor test to determine
aggravating conduct.  IO Coal Co., Inc., 31 FMSHRC 1346, 1350-1351 (Dec.
2009). While each factor does not need to be present in order to find
unwarrantable failure, all six factors must be considered. The Administrative
Law Judge will consider each of those factors in turn:

1.      Extent Of The
Violative Condition

This particular
condition occurred on a single, damaged mill at the mine.  While Respondent had
been cited for similar conditions in the past (as will be discussed infra),
the instant violation was not particularly extensive.

2.      The Length of
Time of the Violation Existed

The evidence
showed that the condition had existed for some time. The uncontested evidence
shows that Martinez climbed the mill twice a month for two years. (Tr.
129-130). Therefore, the condition was quite lengthy.

3.      Whether the
violation is obvious or poses a high degree of danger

The violation at
issue here was obvious and posed a considerable danger. Martinez scrambled up
the side of the mill in plain sight and was, in fact, under the observation of
Vargas. Climbing on equipment that is not intended for climbing is obviously a
violation of the act. As discussed, supra, a reasonably prudent person
would have been aware that this was a violation of the act.

Similarly,
the evidence shows that the condition posed a high degree of danger. As noted
in the gravity discussion, this condition was reasonably likely to result in fatal
injuries to a miner and was S&S. There is no question that the condition
posed a high degree of danger.

Respondent
argued that the condition was neither obvious nor posed a high degree of danger
because it “took every precaution” to ensure that the employees ascended
safely. (Respondent’s Post-Hearing Brief at 13). Those precautions
included the harness, three points of contact, and free hands. (Id.). Of
course, one precaution that Respondent failed to take was to provide a ladder
or some other form of access that was intended to be used for climbing. Instead,
the miner was required to scramble up the side of the mill using handrails and
structure as a ladder. I find that Respondent exposed the miner to a dangerous
fall as a result of this improvised access method. For the reasons discussed at
length earlier, the un-tied harness, three points of contact, and free hands
did not lessen this danger. Further, they did not make the danger any less
obvious, the miner was still scrambling up the side of the mill with no ladder
at a dangerous height. Therefore, the evidence does not support Respondent’s
argument.

4.      Whether the
operator had been placed on notice that greater efforts were necessary for
compliance or that this condition was an issue.

Respondent was
aware that greater efforts were needed. The Secretary presented evidence that
Respondent had been cited nine times in the past for similar violations. (Secretary’s
Post-Hearing Brief at 17). Past citations are relevant to the issue of
whether Respondent had notice. IO Coal at 1353-1355. Therefore,
Respondent had meaningful notice that the cited condition was not permissible
and should have taken action to correct it.

Respondent
argued that it did not receive notice because it had been climbing in this
manner for 10 years without being told that it was unsafe. (Respondent’s
Post-Hearing Brief at 13). There is no requirement that an MSHA inspector
explain to an operator each and every action that might constitute a violation
of every standard. The nine previous citations should have given Respondent
ample notice that it was doing something wrong.

5.      The operator’s
efforts in abating the violative condition

The evidence
shows that the condition was abated without delay.

6.      Operator’s
knowledge of the existence of the violation

“It
is well-settled that an operator’s knowledge may be established, and a finding
of unwarrantable failure supported, where an operator reasonably should have
known of a violative condition.” IO Coal Co., 31 FMSHRC at 1356-1357 (citing
Emery, 9 FMSHRC at 2002-2004). A supervisor’s knowledge and involvement is
an important factor in an unwarrantable failure determination. See Lopke
Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) citing (REB
Enterprises, Inc., 20 FMSHRC 203, 224 (Mar. 1998) and Secretary of Labor
v. Roy Glenn, 6 FMSHRC 1583, 1587 (July 1984). In fact, a supervisor’s
actual knowledge can be imputed to the Respondent for purposes of determining
an unwarrantable failure, in addition to the penalty. Whayne Supply Co.,
supra; Rochester & Pittsburgh Coal Co., supra; and Southern
Ohio Coal Co., supra. As discussed supra, the preponderance
of the evidence shows that Vargas actually directed and witnessed Martinez’s
actions. Therefore, his knowledge can be imputed to Respondent. Respondent had
actual knowledge of the existence of this violation.

In
light of the length of time the violation had existed, the obviousness and high
degree of danger posed by the condition, the notice Respondent received,
Respondent’s knowledge of the cited condition, and the fact that Respondent’s
actions are best characterized as “high” negligence, I find that this violation
was an unwarrantable failure on the part of the operator.

4.     
Penalty

Having affirmed the Secretary’s
determinations in all respects, no deviation in the civil penalty is necessary.
In fact, the proposed penalty is appropriate under the Act. Therefore,
Respondent is hereby ORDERED to pay a civil penalty in the amount of $11,900.00
with respect to this violation.

Defective
Equipment Citation

I.                  
SUMMARY
OF TESTIMONY

Villahermosa was
at the Cantera Canas Mine on August 26, 2010 and inspected the equipment. (Tr.
46-47). Usually, the person accompanying Villahermosa for the inspection
organizes the equipment for examination. (Tr. 49-50). The inspections can occur
at the shop area or out on the road. (Tr. 50). During this inspection,
Villahermosa and the safety representative, Noe Arroyo, went to the road and
waited for the trucks. (Tr. 51).  This allowed them to inspect trucks while they
were loaded, as required. (Tr. 50-51).

During that
inspection Villahermosa issued Citation No. 8544130 (GX-15) for failure to take
several pieces of defective equipment out of operation. (Tr. 47-49, 100-101). None
of the equipment inspected had tags, markings, or was placed in an area
indicating it was out of service. (Tr. 51). Villahermosa informed Arroyo of
each violation and that that the overall inspection of mobile equipment was
ineffective. (Tr. 57, 59-60). The maintenance shop coordinator, Horacio Terron
learned about the conditions later, when he returned to the plant. [14]  (Tr. 189). Terron
was away from the plant periodically between July and October 2010 for private
medical reasons, including the day of the instant inspection. (Tr. 198-199).

Inspector
Villahermosa testified that two of Respondent’s cranes had non-functioning
parking brakes, deteriorated seats, no load charts, missing engine guards, and
one had a seat belt unattached and lying on the floor. (Tr. 47, GX-16). When
Villahermosa arrived, the seat belt for Crane 771 was located on the tire. (Tr.
55-56). Lack of seatbelt could result in serious injury in a collision. (Tr.
52). If the cranes were to run off the road or hit a berm, a miner could be
thrown from the equipment and suffer a fatal injury. (Tr. 52,66). The miner
could be run over by the equipment after ejection. (Tr. 66).

Inspector
Villahermosa also found that a lack of load charts could result in too much
weight being placed on the crane causing a collapse and fatalities. (Tr. 52,
66). However, Respondent told Villahermosa that they would not load the cranes
to the maximum capacity and he had no information to contradict that claim. (Tr.
106). Further, Terron learned in a personnel meeting that the operator had used
the equipment for about 15 years and had not used a load chart in years.  (Tr.
195-196). The operator was trained in the equipment and was used to working
with it. (Tr. 196).

In Inspector
Villahermosa’s opinion, defective parking brakes would allow the crane to roll
and strike someone if parked on a hill. (Tr. 52-53, 107-108). However,
Villahermosa did not know if the equipment was used on grades. (Tr. 108). Further,
the mine used “riggers” as brakes and these most likely would have prevented
the vehicle form moving. (Tr. 108).

A defective
guard on the crane could allow miners to contact moving parts. (Tr. 53).

The broken seats
had existed for a long time, perhaps years and were in bad shape. (Tr. 108). Long-term
use of seats without cushion could cause back problems. (Tr. 53, 108).  Villahermosa
did not recall being informed that Respondent sought new seats to comply with
the standard. (Tr. 108).

One of the
Pettibone cranes, 771, was parked behind the maintenance shop. (Tr. 102,
190-191, 205, 259-260). Terron testified that it was behind the shed since July
2010 because it had a leak on the bottle for the jacks and was waiting on spare
parts. (Tr. 191-193). It was still there at the time of the hearing. (Tr. 193).
The area behind the shed was where Respondent parked out-of-service equipment. (Tr.
191). This equipment may only be accessed by a certified mechanic under Puerto
Rican law. (Tr. 192-193). Terron testified that it had been there, behind a
green truck for several weeks before the inspection and had not moved when he
returned to work after the inspection. (Tr. 192, 205). Terron testified that he
told Bautista that the 771 crane was out of service in July and that he should
not use it. (Tr. 200-201, 206). However, Terron could not be certain that
Bautista did not use it when he was out. (Tr. 201).

No one told
Villahermosa that the machine had been out of service since June 2010. (Tr.
103). Instead, the equipment operator, Bautista, told the inspector that the
equipment was used when the other one, 774, was not working. (Tr. 103,
261-262). In fact, that day Villahermosa asked to inspect machines that would
be used and Bautista led him to the 771 crane. (Tr. 260, 272). While he knew
the equipment was behind the shed, the operator said it was used on more than
one occasion, in June and August. (Tr. 260-261, 272-273). The miner’s statement
contradicted Terron’s testimony. (Tr. 270). Villahermosa testified that
operators, including Respondent, often argue that equipment is out of service
if he is trying to inspect. (Tr. 269).

Whether the
equipment was in use was not included in Villahermosa’s notes. (Tr. 269). The
fact that Bautista said the equipment was used weeks earlier was in the notes,
just not the actual statement. (Tr. 269-270). Generally, Villahermosa does not
include whether equipment is in use in his notes. (Tr. 272, 275). The operator
determines what equipment is in service. (Tr. 273). He asks what will be in
service so he can inspect it. (Tr. 272). If an operator says that equipment is
out of service, he would ask why. (Tr. 272). He did not recall anyone telling
him the equipment could be used on August 24-26. (Tr. 273-274). It was probably
not used that day, but it was used before. (Tr. 271). Further, on the day of
the citation, as far as he could tell the 771 crane was ready to be used
because it was not tagged. (Tr. 272).

Terron believed
that at some point the cabin of 771 was removed. (Tr. 194). Without the cabin,
it could not be used. (Tr. 194). He was not sure if anything else was removed. (Tr.
194). Villahermosa believed the crane had a cage when the citation was issued. (Tr.
102-103).

Next,
Respondent’s front-end-loader did not have safe access. (Tr. 53). Respondent
had modified the loader so that it was no longer greased at floor level, but
instead at the front of the machine. (Tr. 53-54). In order to reach the front,
miners had to climb the loader. (Tr. 54). Some of the miners reached the loader
by climbing a ladder or the tire. (Tr. 55). A fall from that point, seven feet
high, could cause serious injury or death (depending on how the miner fell). (Tr.
54-55, 65-66, 104). Miners working on this equipment tied themselves to the
mirror or handrail, but they could have fallen and hit the structure or,
depending on the length of the line, the ground. (Tr. 54-55, 104-106). Such a
fall was likely to occur and cause permanently disabling injuries, including
severe cuts to the skull or broken bones. (Tr. 105-106). Terron testified that
the lubrication technicians could lubricate the equipment by parking the loader
close to the balcony and reaching it from there. (Tr. 194-195). However, he
never saw anyone perform this task. (Tr. 195).

Respondent had
two defective dozers; one was missing a front wiper and another had an
uncharged fire extinguisher. (Tr. 66, 107, GX-16). Low visibility from a
missing wiper could result in the equipment striking miners or other machinery
causing injury to those inside or outside the machine. (Tr. 52, 66). The lack
of a charged fire extinguisher could cause serious injury in the event of a
fire. (Tr. 67).

Also, Respondent
had a water truck with a defective parking brake. (GX-16). If the water truck’s
parking brake failed, it could result in someone being run over. (Tr. 66-67).

Finally, a haul
truck was equipped with a faulty speedometer and fuel gauge. (GX-16).

Terron testified
regarding the difficulty he experienced getting additional parts. (Tr.
196-198). While his duties included ordering replacement parts, another
department handled the negotiations and purchasing. (Tr. 196). First, Terron
would make a request for parts, which had to be authorized. (Tr. 197). Then the
request went to the planning department for validation. (Tr. 197). Then the
request went to the purchasing department where a negotiator would purchase the
part. (Tr. 197). The validation and ordering process took 10 days and then the
equipment has to come from the U.S. or another country. (Tr. 197). Then the
part would go to the plant. (Tr. 197). Some parts, like for the Caterpillar,
arrived more quickly than others. (Tr. 196).  There was less support for the
Pettibone Cranes because there were no dealers in Puerto Rico and the equipment
was old (it was bought used and refurbished 15-20 years ago). (Tr. 197). It is
harder to find replacement parts for older, discontinued equipment. (Tr. 198). The
replacements were generally new, non-original parts that had to be adapted or
modified to work. (Tr. 198). Sometimes the bases or supports had to be modified
or adapted. (Tr. 198).

Villahermosa
believed the cited conditions were reasonably likely to result in injury
because the equipment had defects that affected safety, the conditions were not
corrected, and the machines were still being used. (Tr. 65). The equipment
operators and miners in the area were those exposed. (Tr. 68). This citation was
marked as S&S because there was a lot of equipment with a lot of safety
defects, and they were still being used. (Tr. 67).

Villahermosa
believed that Terron and Guillermo Vasquez engaged in aggravated conduct
because they received daily examination records. (Tr. 60-61, 67). With respect
to the cranes, Bautista, completed a “daily inspection report” of the machines
and submitted them to Terron as per Respondent’s policy. (Tr. 62-63, 199-200). Such
an inspection was supposed to occur on all equipment that was to be used that
day and was supposed to check the security points (wipers, seatbelts, fire
extinguishers, and other devices). (Tr. 199-200, 204, 270-271). Terron, as
Bautista’s supervisor, was tasked with collecting these reports and coordinating
repairs of defective equipment. (Tr. 61-63). Bautista would leave the reports
in Terron’s office and he would review, but not sign, them. (Tr. 202, 206-207).
If Bautista said the equipment was defective, Terron would get a mechanic to
inspect it and then take it out of service. (Tr. 202, 207). Terron had the
authority to do so. (Tr. 63-64, 202).

Terron reviewed
the daily inspection report for the 771 Crane dated August 24, 2010. (Tr. 204).
That report showed that the crane was defective. (Tr. 67-68). Specifically,
that it had leaks in its hydraulic system, rusted wires, a broken cabin, and a
broken seat. (Tr. 207-208). The leak was the reason the crane was removed from
service in July. (Tr. 208). However, Terron did not take action to prevent
exposure. (Tr. 67-68).  In fact, that daily report says that the equipment was
available for service. (GX-28, Tr. 204-205, 268-269). Bautista said that
equipment was used when reported hazardous.  (Tr. 260, 269) There were two
crane inspections that day, showing that both cranes, not just 774, were
available. (Tr. 262-263, 279).

Vasquez was the
quarry coordinator and was a supervisor for other mobile equipment operators. (Tr.
64, 202-203). Vasquez also knew about these defects because his employees had
turned in inspection forms. (Tr. 65). Both the miners and Vasquez stated that
these forms were turned in. (Tr. 65). He also had authority to remove unsafe
equipment from service. (Tr. 203).

Villahermosa
believed Respondent was highly negligent because it was aware of the cited
conditions and took no corrective action. (Tr. 68). He also believed this
condition was an unwarrantable failure to comply because there were defects,
Respondent continued to use the equipment, and miners were exposed to hazards. (Tr.
68). The equipment should have been repaired or removed from service. (Tr. 68).

II.               
CONTENTIONS
OF THE PARTIES

The Secretary issued a citation
following the August 26, 2010 inspection. This citation was issued for an
alleged failure to take defective equipment out of service. (GX-15).

With respect to this citation, No. 8544130,
the Secretary asserts that Respondent violated 30 C.F.R. §56.15005, that this
violation was reasonably likely to result in fatal injuries to one miner, that
the violation was S&S, that it resulted from high negligence, and that it
was an unwarrantable failure to comply. (GX-15)(Secretary’s Post-Hearing
Brief at 24-32). The Secretary also asserts that a penalty of $3,689.00 is
appropriate. (Id.)

Respondent
asserts that the alleged violation was unlikely to result in any injury, that
any injury sustained would be non-fatal, and its actions would be better
characterized as showing “moderate” negligence. (Respondent’s Post-Hearing
Brief at 16.) Presumably, Respondent would also prefer a reduction in the
penalty.

III.            
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

1.      The Secretary
Has Carried His Burden Of Proof By A Preponderance Of The Evidence That 30
C.F.R. §56.1400(c) Was Violated.

On August 26, 2010, Inspector Villahermosa
issued a 104(d)(1) Citation, No. 8544130, to Respondent. Section 8 of that
Order, Condition or Practice, reads as follows:

The mine operator did not ensure that
defects on mobile equipment that affect safety were corrected in a timely
manner to prevent the creation of a hazard to persons. The mine operator
received the inspection reports and did not make any effort to correct the
reported conditions. Some conditions were reported for several months without
corrections or preventative actions taken while allowing the equipment to be
operated with the defects. Not correcting hazards and allowing equipment to be
used can lead to serious or fatal injuries. Horacio Terron (Maintenance
Coordinator) and Guillermo Vazquez (Quarry Coordinator) engaged in aggravated
conduct constituting more than ordinary negligence in that he was aware that of
the mobile equipment safety defects and allowed the equipment to be used by
miners. This violation is an unwarrantable failure to comply with a mandatory
standard.

(GX-15).

The
cited standard, 30 C.F.R. §56.14100(c) (“Safety Devices and Maintenance
Requirements”), provides the following:

When
defects make continued operation hazardous to persons, the defective items
including self-propelled mobile equipment shall be taken out of service and
placed in a designated area posted for that purpose, or a tag or other
effective method of marking the defective items shall be used to prohibit
further use until the defects are corrected.

30
C.F.R. §56.14100(c).

As Judge Weisberger noted in Dix
River Stone, Inc., “to show a violation of Section 56.14100(c) supra,
the Secretary must establish 1) the existence of a defect, that 2) makes
continued operations hazardous to persons, and 3) the machine was not taken out
of service.” 32 FMSHRC 1779, 1784 (Nov. 2010)(ALJ). In order to find a
violation, each of those factors must be met. See e.g. North Idaho Drilling,
Inc., 2013 WL 4140375, *9-10 (Aug. 7, 2013)(ALJ Manning) (finding a
violation did not exist when there was a defect, the machine was not taken out
of service, but continued operations did not expose miners to a hazard). In
discussing a similar standard, the Commission stated that equipment is still in
service if it “is located in a normal work area, fully capable of being
operated.” Ideal Basic Industries, Cement Division, 3 FMSHRC 843, 845
(April 1981); see also Mountain Parkway Stone, Inc., 12 FMSHRC 960, 963
(May 1990) (equipment was in use when it was “parked in the mine in turn-key
condition and had not been removed from service.”) The Commission found that
allowing equipment to stay “parked in a primary working area could allow
operators easily to use unsafe equipment yet escape citation merely by shutting
it down when an inspector arrives.” Id. Therefore, the equipment does
not have to be actually used, just be available for use.

In the instant matter, credible evidence
establishes that there were several pieces of equipment at the mine that were
defective. (See Secretary’s Post-Hearing Brief at 24-26). Inspector
Villahermosa testified at length about the various dangers that would arise
from these defects. (Tr. 47, 52-55, 65-67, 104-108). In addition, Respondent
was cited 12 times for these pieces of defective equipment and paid the levied
fines. (GX-15). The payment of a civil penalty constitutes an admission that
the cited conduct actually occurred and renders the citation final.  See Old
Ben Coal Co., 7 FMSHRC 205, 209 (Feb. 1985). Finally, Respondent explicitly
concedes in its brief that it was cited for defects in several pieces of
equipment. (Respondent’s Post-Hearing Brief at 16). Therefore, there is
no issue as to whether defects existed or as to whether those defects were
hazardous to persons under continued operations. The only question is if the
equipment was taken out of service.

The
Secretary presented credible evidence to support a finding that the equipment
at issue here was not removed from service. Perhaps most persuasively, Respondent
had conducted pre-operational examinations of the cited equipment. (Tr. 199-200)(GX-28).
This is especially important because Respondent would only conduct
pre-operational examinations on equipment that was going to be used that day. (Tr.
204-205). Therefore, under Respondent’s protocols, there was no question that
the defective equipment was “in use.” It had been prepared for operation on the
day of the inspection with every indication that it would be used.

Even without the pre-operational
examinations, the evidence shows that this equipment was not removed from
service. The evidence shows that the cited equipment was sitting in the regular
work area. Inspector Villahermosa credibly testified that he conducted his
inspection of the equipment in an active work area, so that he could see the
equipment while loaded. (Tr. 50-51). Further, none of the equipment was marked
“out of service” or placed in an area specifically marked for “out-of-service”
equipment. (Tr. 51). Further, when Inspector Villahermosa inspected the
equipment, no one told him that the specific pieces he was citing were not
being used. (Secretary’s Post-Hearing Brief at 28). This type of action
would be reasonable if he was inspecting equipment that was actually removed
from service. In fact, employees told Villahermosa that the equipment was
recently operated. (Tr. 260-261, 269-270, 272-273).

Therefore, the preponderance of the
evidence shows that the equipment was not removed from service, but actually in
a working area, ready for use, and “available” under existing protocol. In
light of the failure to remove this equipment from service, and the fact that
the equipment was defective and hazardous, I find that Respondent violated 30
C.F.R. §56.14100(c).

In
its brief, Respondent asserted several arguments to support its claim that this
citation was invalid. (Respondent’s Post-Hearing Brief at 8, 16). However,
those arguments are not supported by the evidence.

As with the Mill Citations, Respondent
contended that the inspector’s testimony was unreliable and could not form the
basis of a finding that a violation took place. (Respondent’s Post-Hearing
Brief at 8). I find that there is no credible evidence to support this
claim.  I will address each instance of allegedly unreliable testimony from the
inspector in turn.

First, Respondent noted that Inspector
Villahermosa could not remember where he inspected the Pettibone Crane No. 771
and did not include that information in his notes. (Respondent’s
Post-Hearing Brief at 8). This assertion is based on Inspector
Villahermosa’s testimony. (Tr. 102). However, even though Villahermosa was
unsure of the location of the Pettibone Crane, I find him credible. The issue
for the inspector was whether Respondent violated a safety standard. He found
that found that the crane was dangerously defective. (Tr. 47, 52-53, 55-56, 66,
107-108). He also found that it was not tagged out of service and was, in fact,
given a pre-shift examination so that it could be used that day. (Tr. 51). Those
were the relevant facts needed to find a violation of the cited standard.  The
location of the crane was not relevant to that issue. I find that it is natural
that the inspector would not include the location in his notes and that he
would not remember irrelevant details during the three years between the
inspection and the hearing.

Respondent
also questioned Inspector Villahermosa’s credibility because he did not include
in his notes that a miner told him the Pettibone Crane No. 771 was being used. Specifically,
the inspector stated that a miner told him that the equipment had recently been
used, but did not include the miner’s actual statement in the notes. (Tr.
268-270). But this is not relevant. The equipment was ready for use and could
have been used. In fact, Villahermosa asked Respondent’s representative to take
him to the active equipment and the miner brought him to the Pettibone Crane
No. 771. (Tr. 260, 272). Again, Villahermosa credibly testified to the
substantive issues in this matter, his failure to recall irrelevant trivia does
not affect that credibility.

In
addition to questioning Inspector Villahermosa’s credibility, Respondent also
argued that the citation was invalid because it was attempting to correct the
problem. (Respondent’s Post-Hearing Brief at 16). It argued that it
tried to correct the problems, but did not have time. (Id.). There is no
evidence, beyond Terron’s self-serving testimony, that Respondent made any
attempts to correct the cited conditions. (Tr. 196-198). There are no receipts,
no work orders, and no invoices to show that repairs were being made. However,
even if there were, Respondent would still have violated the cited standard. The
standard does not require Respondent to make efforts to repair defective
equipment. It requires operators to remove defective equipment from service. Here
there was defective equipment that was still available for use. Even if all the
replacement parts were sitting at Respondent’s mine and there were concrete
plans to repair the equipment the next day, Respondent still violated the
standard by not removing the equipment from service while the repairs were
pending. Respondent’s argument, even if supported by the evidence, would not
undermine the validity of this citation.

2.      The Violation
Was Reasonably Likely to Result in a Fatal Injury to One Miner And Was
Significant And Substantial In Nature

Inspector Villahermosa marked the
gravity of the cited danger in Citation No. 8544130 as “Reasonably Likely” to
result in “Fatal” injury to one person. (GX-15). These determinations are
supported by a preponderance of the evidence.

The
event against which the instant standard, 30 C.F.R. §56.14100(c) is applied is
exposure to hazards related to defective equipment. Here, the inspector
testified credibly testified that various defects in the equipment exposed
miners to a reasonable likelihood of serious injury. With respect to the
bulldozer, missing windshield wipers, in the event of low visibility or
inclement weather, could impair the vision of the operator to the extent that
he would be unable to see other miners walking or working in his vicinity
resulting in a collision. (Tr. 66). With respect to the crane, the absence of
seatbelts could cause an operator to be thrown from the cabin if he went over a
berm or down a steep decline. (Tr. 66). Further, if the cranes’ booms broke
because the operator erroneously lifted loads that exceeded their capacity, the
broken booms and the loads could cause serious or fatal injuries if they struck
individuals in the vicinity. (Tr. 66). Defective brakes on those cranes or on
the water truck could cause the vehicles to roll away and strike miners. (Tr.
66). All of these pieces of equipment were extremely heavy and would cause
fatal injuries if they struck a miner. In addition, a defective guard on a
crane could allow miners to contact moving parts. (Tr. 53). A miner falling
from the front-end loader, even if tied, could suffer serious injury. (Tr. 54-55,
104-106). Deteriorated seats could also cause some long-term injuries to
miners. (Tr. 53, 108). In short, the defective equipment exposed miners to a
multitude of potential hazards, most fatal, that were reasonably likely to
occur while the equipment was in service.

Only one miner would likely be affected
by these conditions at any one time.

With respect to S&S, the first
element, the underlying violation of a mandatory safety standard, it has
already been established that Respondent violated 30 C.F.R. §56.14100(c).

With respect to the second element of Mathies,
a discrete safety hazard – that is a measure of danger to safety – contributed
to by the violation – was also met. The cited condition, failure to remove
defective equipment from the mine, contributed to several discrete safety
hazards. Miners were exposed to being struck by faulty equipment, to being
thrown from and crushed by faulty equipment, to being crushed by broken
equipment, to contacting moving equipment, to a fall, and to possible long-term
back injury. (Tr. 47, 52-55, 65-67, 104-108).

The third element of the Mathies
test – a reasonable likelihood that the hazard contributed to will result in an
injury – was also met. The preponderance of the evidence establishes that the
hazard contributed to in this matter would be reasonably likely to result in
injury. As discussed supra, if a miner was struck by these large pieces
of equipment, the likely result would be a crushing or striking injury. (Tr. 52-53,
107-108, 66-67). Other pieces of equipment, like the crane with a missing guard,
exposed the miners to other types of injury. (Tr. 53-55, 65-67, 104-106, 108).

The fourth element -that the injury be
of a reasonably serious nature - was also met. As discussed supra, the
inspector credibly testified that in the event the hazards here were realized,
miners being struck or crushed by large equipment would suffer fatal injury. Other
defects exposed miners to serious, if less fatal, injuries. As a result, the
fourth prong of Mathies is met.

As a result of these factors, I find
that the Secretary proved the violation was S&S by a preponderance of the
evidence.

Respondent argues that this citation
should not be S&S because 10 of the underlying twelve violations were not
S&S. (Respondent’s Post-Hearing Brief at 16). Of course, that means
that two of the underlying twelve violations were S&S. If the dangers
associated with some of the underlying defects were S&S, then obviously
failure to remove the defective equipment from service was also S&S. It
would defy logic if the existence of defective equipment was S&S, but the
presence and use of that equipment was not.

3.      Respondent’s
Conduct Displayed “High” Negligence and an Unwarrantable Failure.

In the citation at issue, Inspector Villahermosa
found that the operator’s conduct was highly negligent in character. (GX-15). The
substantial evidence supports this designation.

The facts
establish that Respondent, through its agent, had actual knowledge of the cited
condition.  Terron was the coordinator of maintenance and a supervisor within
in the definition provided in 30 U.S.C. 802(e) and Martin Marietta
Aggregates, supra. (Stip. 9)(Tr. 188). The same was true of Vasquez,
the quarry coordinator. (Tr. 65, 202-203). At the mine, equipment operator’s
would conduct pre-shift examinations and submit the reports to Terron and/or
Vasquez. (Stip. 10) (Tr.65). Terron and Vasquez were responsible for correcting
defects found as a result and could remove defective equipment from service. (Tr.
60-64, 67, 203). In the instant matter, the equipment operator, Bautista,
submitted forms on August 24, 2010 that clearly stated that the Pettibone Crane
No. 771 was defective.[15] (Tr. 67-68). Terron reviewed this
report but did not take action to prevent exposure. (Tr. 67-68, 204).  In fact,
that daily report shows that the equipment was available for service. (GX-28) (Tr.
204-205, 268-269). Bautista stated that equipment was used when reported
hazardous.  (Tr. 260, 269) Vasquez was also aware of defects in the equipment. (Tr.
65). Therefore, Terron and Vasquez had actual knowledge that hazardously
defective equipment was not removed from service. As supervisors, Terron
and Vasquez’s conduct was imputed to Respondent. Whayne Supply Co., supra;
Rochester & Pittsburgh Coal Co., supra; and Southern Ohio
Coal Co., supra.

Having found the requisite knowledge, the next issue
is whether there were any mitigating circumstances. I find that none existed. Therefore,
I find the Secretary’s designation of “high” negligence appropriate.

Respondent argued that there were mitigating
circumstances. However, Respondent addressed those arguments in its brief to
the issue of unwarrantable failure. As a result, those arguments will be
addressed in the unwarrantable failure discussion infra.

The Secretary cited Respondent’s conduct
as an unwarrantable failure to comply with the cited standard. A preponderance
of the evidence, as analyzed in through the IO Coal factors, supports
this determination:

1.      Extent Of The
Violative Condition

The cited
condition dealt with several different pieces of equipment. (Tr. 47-49, 100-101).
Further, some of the equipment had more than one defect. (Tr. 47, 53, 68)
(GX-16). This equipment was examined and reported to management, but it was
placed into service or at least made available for service. (Tr. 67-68). The
evidence supports the Secretary’s characterization that Respondent had a
“culture of neglect” with respect to the equipment at the mine. (Secretary’s
Reply Brief at 16). I find that the cited condition was extensive.

2.      The Length of
Time of the Violation Existed

The evidence
showed that the condition had existed for some time. The evidence showed that,
for example, the Pettibone Crane No. 771 was damaged for over a month, but
remained in service. (Tr. 67-68, 204-205, 268-269)(GX-28). Further, Inspector
Villahermosa testified that some of the deterioration in the equipment that he
observed would have taken considerable time to develop. Therefore, the
condition was quite lengthy.

3.      Whether the
violation is obvious or poses a high degree of danger

The violation at
issue here was obvious and posed a considerable danger. As discussed at length supra,
the dangerously defective equipment was highly likely to result in fatal or
other serious types of injury. (Tr. 47, 52-55, 65-67, 104-108). Miner could
have been struck or crushed by equipment, caught within equipment, thrown from
equipment, and falling from equipment. The condition was also obvious. The
defective equipment included easily visible conditions like missing seatbelts
and warning signs. Further, the defects were actually observed during pre-shift
examinations, indicating that they were obvious to a prudent examiner. (Tr. 67-68,
207-208)(GX-28).

Respondent
argued that the condition was neither obvious nor posed a high degree of danger
because it did its best comply with the standard, but did not have sufficient
time. (Respondent’s Post-Hearing Brief at 16-17). There is some evidence
that Respondent had attempted to repair the defects, albeit in the form of
self-serving testimony without documentation. (Tr. 196-198). However,
Respondent was not cited for failure to repair equipment. It was not required
under the cited standard to repair equipment. It was required to remove
defective equipment from service. Repair was optional. There is no indication
in the evidence that Respondent made any effort to remove equipment from
service. Instead, records show that the equipment was in regular work areas and
was marked “available” on pre-shift reports. The evidence does not support Respondent’s
argument.

Respondent
also argued that the equipment did not pose a danger because it was not
actually used, notwithstanding the “available” marking on the pre-shift
reports. (Respondent’s Post-Hearing Brief at 17). It asserts that the
body of those reports indicated that the equipment was not available. (Id.).
As discussed supra, “removal from service” does not simply turn on
whether the equipment is actually used. Even if the equipment cited here was
not actually used (though the evidence supports a finding that it was), the violation
was that the equipment was sitting in the regular work area in turn-key
condition and was in no way marked as “out-of-service.” In fact, Respondent’s
documentation indicated that this equipment was “available” and was examined in
a way that only active equipment was examined. I find nothing in the body of
any of the documents submitted that indicated that equipment otherwise marked
as “available” was actually “unavailable.” Therefore, the evidence does not support
Respondent’s argument.

4.      Whether the
operator had been placed on notice that greater efforts were necessary for
compliance or that this condition was an issue.

Respondent was
aware that greater efforts were needed with respect to the equipment. As noted,
Respondent had, just days before the instant citation, been cited 12 times for
failure to maintain mobile equipment. (GX-27). Further, Respondent knew from
its own records (the pre-shift examinations) that it had extensive problems
with its mobile equipment. Respondent had sufficient notice that the equipment
it had marked “available” for use on the day of the citation was in no
condition to be operated.

5.      The operator’s
efforts in abating the violative condition

The evidence
shows that the condition was abated without delay.

6.      Operator’s
knowledge of the existence of the violation

As
discussed at length in the negligence section, supra, Respondent’s
agents Terron and Vasquez had actual knowledge of the cited condition from the
pre-shift reports. (Tr. 60-61, 67). A supervisor’s actual knowledge can be
imputed to the Respondent for purposes of determining an unwarrantable failure,
in addition to the penalty. Whayne Supply Co., supra; Rochester
& Pittsburgh Coal Co., supra; and Southern Ohio Coal Co.,
supra. Therefore, this knowledge can be imputed to Respondent. Respondent
had actual knowledge of the existence of this violation.

In
light of the extensive nature of the condition, the length of time the violation
had existed, the obviousness and high degree of danger posed by the condition,
the notice Respondent received, Respondent’s knowledge of the cited condition,
and the fact that Respondent’s actions are best characterized as “high”
negligence, the Administrative Law Judge finds that this violation was an
unwarrantable failure on the part of the operator.

4.     
Penalty

Having affirmed the Secretary’s
determinations in all respects no deviation in the civil penalty is necessary. In
fact, the proposed penalty is appropriate under the Act. Therefore, Respondent
is hereby ORDERED to pay a civil penalty in the amount of $3,689.00 with
respect to this violation.

BCN
Conveyor Citation

I.                  
SUMMARY
OF TESTIMONY

Villahermosa
reviewed Citation No. 8643560 (GX-27), which was issued pursuant to previous
violations. (Tr. 68-69). The initial citation, given on March 1, was issued
because material was spilled along the BCN conveyor, creating unsafe, hazardous
access to the area. (Tr. 68-69, 214). The problem was caused because the chute
that lowered raw cement material from the conveyor was damaged, resulting in
spillage. (Tr. 212-214).

Imilcen Rivera
recalled that after the initial citation, she called someone to close off the
area and then put a plan in place for the area to be cleaned. [16] (Tr. 214). Maintenance
cleaned the spillage. (Tr. 214).  Respondent then made a risk evaluation for
the BCN conveyor and developed a protocol to correct the conditions. (Tr. 237).
This included reconstruction of the roof of the chute which would take six
months and cost $300,000.00. (Tr. 215, 237). It would take time to fix the
condition because there was over 20,000 tons of raw material in the warehouse
that needed to be emptied before the belt could be reached. (Tr. 215, 238). The
contractor’s plans were complicated and made on a month-to-month basis while
the plant adapted. (Tr. 215). The condition was corrected in August 2012. (Tr.
238-239).

Rivera testified
that in the interim, the area was constantly cleaned because if the material
too high, it would stop the conveyor. (Tr. 216, 219). They had someone check
the conditions each day and clean the mounds of material with a shovel and
bucket. (Tr. 219, 242). There were miners in the cited area, but only to
prepare the area to be cleaned. (Tr. 239).

Respondent
received five time abatement extensions because it was unable to correct the
problem. (Tr. 69). Rivera testified that several inspections found that the
condition still existed. (Tr. 215-216). Each time, Respondent closed and
cleaned the walkway. (Tr. 216, 237-238). After the fifth extension, and a month
before the instant citation, Villahermosa saw that the material was still
present and footprints were in the material so he issued an Order. (Tr. 70-71,
241). Respondent had placed yellow tape around the area, but there were still
footprints in the material. (Tr. 71). Collazo felt that the abatement periods
given were too short, especially considering Respondent told MSHA the condition
would take six months to repair. (Tr. 241). Collazo testified that the
inspector knew on each of these subsequent inspections what Respondent was
trying to do. (Tr. 238). If miners were required to leave this area until MSHA
verified that the condition was corrected, Respondent’s business would grind to
a halt. (Tr. 241).

With respect to
Citation No. 8643560, Villahermosa once again observed footprints in the
material and broken tape. (Tr. 71-74, 216). The area was not closed off and
there was about two feet of material with footprints in it (though they did not
measure it). (Tr. 216-217). Rivera testified that there were two footprints;
the first was at the beginning of the pile and maybe half an inch deep and the
second was farther in, but shallower and partial. (Tr. 217-218, 220-221).
Rivera believed that someone had stepped in, not put their full weight in, and
stepped out (she was not present to see them made and could not be sure). (Tr.
218, 220-222). There was no third footprint in the material. (Tr. 221). Villahermosa
saw more than two; he saw a trail. (Tr. 263). Collazo told Villahermosa that
the footprints were present because miners went over the area to clean it. (Tr.
264). Villahermosa told Collazo that this was improper because it exposed
miners to the hazard and that miners should have begun cleaning at the front. (Tr.
264). Respondent had not complied with the Order. (Tr. 71).

Miners could
have slipped and hit structure or twisted an ankle or wrist. (Tr. 75). Laborers
and mechanics were affected when traveling through the area. (Tr. 74-75).

Respondent was highly negligent because
miners continued to access the area in an unsafe manner. (Tr. 74).

II.               
CONTENTIONS
OF THE PARTIES

The Secretary issued a citation
following the above-described inspection. This citation was issued for an
alleged failure to correct or limit exposure to a previously cited hazard. (GX-27).

With respect to this citation, No. 8643560,
the Secretary asserts that Respondent violated Section 104(b) of the Act, that
this violation had no likelihood to result in injuries to a miner, and that it
resulted from high negligence. (GX-27)(Secretary’s Post-Hearing Brief at
32-34). The Secretary also asserts that a penalty of $5,000.00 is appropriate.
(Id.)

Respondent
asserts that the alleged violation would be better characterized as showing “low”
negligence. (Respondent’s Post-Hearing Brief at 19.) Presumably,
Respondent would also prefer a reduction in the penalty.

III.            
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

1.      The Secretary
Has Carried His Burden Of Proof By A Preponderance Of The Evidence That 30
U.S.C. §814(b) Was Violated.

On June 20, 2012 Inspector Villahermosa
issued a 104(a) Order, No. 8643560, to Respondent. Section 8 of that Order,
Condition or Practice, reads as follows:

The mine operator continued to allow
personnel to transit along conveyor BC-N with approximately 2-1/2 feet of
spilled material even though a 104(b) Order No. 8643534 for non-compliance was
issued by MSHA on May 24, 2012. His order required the walkway next to the
conveyor to withdrawn from service until the spilled material was removed and a
safe access is obtained. Foot prints were observed on top of the spilled
material indicating a person or persons transited the area. Area was not closed
off. This condition has not been designated “significant and substantial)
because the conduct violated a provision of the Mine Act rather than a
mandatory Safety or health standard

(GX-27).

The
cited Section, 30 U.S.C. §814(b) (“Citations and Orders”) provides the
following:

If, upon
any follow-up inspection of a coal or other mine, an authorized representative
of the Secretary finds(1) that a violation described in a citation issued
pursuant to subsection (a) of this section has not been totally abated within
the period of time as originally fixed therein or as subsequently extended, and(2)
that the period of time for the abatement should not be further extended, he
shall determine the extent of the area affected by the violation and shall
promptly issue an order requiring the operator of such mine or his agent to
immediately cause all persons, except those persons referred to in subsection
(c) of this section, to be withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the Secretary determines that
such violation has been abated.

30
U.S.C. §814(b).

The Secretary presented credible
evidence that Respondent was issued a 104(a) citation regarding the BCN
conveyor on March 1. (Tr. 68-69, 214)(GX-27). Further, Inspector Villahermosa
credibly testified that, despite five extensions, Respondent failed to totally
abate the cited condition and was issued a 104(b) Order on May 24, 2014. (GX-27).
A follow-up inspection showed Respondent had not complied with the 104(b)
Order, leading to the instant Order. In its brief, Respondent did not contest
the validity of this Order and explicitly stated that it did not intend to
dispute any finding by the Secretary, save for the negligence designation. (Respondent’s
Post-Hearing Brief at 18). In light of this fact, and the evidence
presented, I find that this citation was valid.  

2.      The Violation Posed
No Likelihood of Injury.

Inspector Villahermosa marked the
gravity of the cited danger in Citation No. 8643560 as “No Likelihood” to
result in “No Lost Workdays” injury” to a miner. (GX-27). The evidence supports
this designation. (Tr. 68-69, 74-75, 214). In its brief, Respondent did not
contest gravity designation of this Order and explicitly stated that it did not
intend to dispute any finding by the Secretary, save for the negligence
designation. (Respondent’s Post-Hearing Brief at 18). Therefore, I find
the preponderance of the evidence supports the Secretary’s findings.  

3.      Respondent’s
Conduct Displayed “High” Negligence.

In the citation at issue, Inspector Villahermosa
found that the operator’s conduct was highly negligent in character. (GX-27). The
preponderance of the evidence supports this finding.

With respect to knowledge, Respondent
absolutely knew the condition existed. Inspector Villahermosa testified that he
had issued the initial citation for the messy walkway over a month earlier and
further, had been back to the mine five times to extend the abatement period. (Tr.
68-69, 214). Further, Respondent’s witness, Rivera, testified that they were
attempting to correct the condition but, for various reasons, were unable to do
so. (Tr. 214-215, 237-239). Rivera was the Safety Coordinator for Respondent
and therefore a supervisor. (Tr. 210). Her knowledge of the cited condition is
imputed to Respondent. Therefore, there is no question that Respondent had
knowledge that it had failed to abate the cited condition and had failed to
comply with the previous Order.

Therefore, the only issue remaining is
whether there were any mitigating circumstances. The preponderance of the
evidence shows that there is not. Respondent simply failed to comply with the
Order and failed to abate the initial citation.

Respondent presented several putative
mitigating factors with respect to this order. However, none of those arguments
were compelling.

First, Respondent argued that it “did
its best” to cordon off the area and keep miners out. (Respondent’s
Post-Hearing Brief at 18). Respondent noted that some miners had been in to
bar the area or correct conditions. (Tr. 216, 219, 242, 239). This is not a
mitigating factor. Under the 104(b) Order issued on May 24, 2014, Respondent
was not permitted to access the cited area until the spilled material was
removed and safe access maintained. Its failure to do so is the crux of the
citation. Any efforts to cordon off the area were wholly ineffectual. Miners
were entering the area and leaving footprints. (Tr. 71-74, 216, 241). This
condition occurred on two separate occasions. (Tr. 70-74, 216). When actions
taken to prevent, correct, or limit exposure to hazards are grossly inadequate,
this is not mitigation. See e.g. Maple Creek Mining, Inc., 26
FMSHRC 539, 555 (Aug. 2005)(ALJ Bulluck). Therefore, Respondent’s efforts here
were not mitigation.

Next, Respondent argued that a high
negligence designation was inappropriate because there were only a few
footprints in the material. (Respondent’s Post-Hearing Brief at 18). However,
Inspector Villahermosa credibly testified that there was a “trail” of
footprints through the area. (Tr. 263).  Therefore, the preponderance of the
evidence does not support Respondent’s assertion. Perhaps more importantly,
this was the second time Respondent had failed to keep miners from this area. The
number of times miners were exposed to danger is far more significant that the
number of footprints in the material. Finally, the argument seems to be that
Respondent only violated that May 24, 2014 104(b) Order a little bit and
therefore was less negligent. This, of course, is not mitigation. Respondent is
required to comply with all health and safety standards as well as the Order
issued pertaining to them.

Next, Respondent argued that it was
impossible for the mine to close the plant, because it needed to get 20,000
pounds of “clinker” out of the warehouse before the damaged chute could be
serviced. (Respondent’s Post-Hearing Brief at 19). Respondent was never
ordered to close the entire mine. Respondent was ordered to keep the walkway
closed. (Tr. 70-71, 241) (GX-27). Respondent could have had full use of the
walkway if, at any time, it had demonstrated to MSHA an ability to keep the
walkway clear and safe for miners or completely barred. This could have been as
easy as keeping a miner at the walkway to shovel it clean (without climbing on
top of the material). In fact, Respondent received five extensions in its
efforts to achieve this goal and was unable to do so. Further, even if
Respondent was forced to close its plant, I see no reason why this would
mitigate its negligence in failing to keep the area clean. Therefore, this is
not mitigation.

Finally, Respondent argued the economic
situation in Puerto Rico was dire and closing the plant would cause hardship. (Respondent’s
Post-Hearing Brief at 19). Once again, Respondent was not required to close
its mine; it was required to keep a single walkway clean or barred. More
importantly, this argument is completely unrelated to negligence. The economic
situation could, in fact, be dire and Respondent could still be liable under
the Mine Act. Respondent presented no evidence that this order or the penalty flowing
from it would prevent the company from staying in business. Perhaps most
importantly, the health and safety of miners (the “most precious resource” in
the mining industry) is not an economic commodity that fluctuates in value with
the markets. 30 U.S.C. §801(a). There is no ticker symbol on the Dow Jones for
miners’ lives. The lives of miners are as valuable in good economic times as
bad. I see no reason to find mitigation on these grounds.

In light of the foregoing, I affirm the
inspector’s finding of “high negligence.”

4.     
Penalty

In light of the fact that the
Administrative Law Judge has affirmed the Secretary’s citation as issued, it is
appropriate to affirm the assessed penalty as issued. Therefore, Respondent is
hereby ORDERED to pay a civil penalty in the amount of $5,000.00 with
respect to this violation.

ORDER

It is hereby ORDERED that
Citation/Order Nos. 8629720, 8629721, 8544130, and 8643560 are AFFIRMED.

Respondent is ORDERED to pay
civil penalties in the total amount of $29,711.00 within 30 days of the date of
this decision.[17]

/s/ Kenneth R.
Andrews   

Kenneth R.
Andrews

Administrative
Law Judge

Distribution:

Terrence
Duncan, Esq., U.S Department of Labor, Office of the Solicitor, 201 Varick
Street Room 983 , New York, NY 10014

Manuel
A. Quilichini, Esq., Quilichini Law Offices, PO Box 194321 San Juan, PR 00919-4231

/tjb

[1] Hereinafter the
Joint Exhibits will be referred to as “JX” followed by the number. Similarly,
the Secretary’s Exhibits will be referred as “GX” and Respondent’s Exhibits
will be referred to as “RX.”

[2] Hereinafter the
transcript will be cited as “Tr.” followed by the page number.

[3] Isaac
Villahermosa appeared at hearing and testified for the Secretary. (Tr. 20). Villahermosa
had worked as an MSHA inspector for six years and was also a special
investigator. (Tr. 21). In that capacity he has performed over 200 regular
inspections at quarries and plants. (Tr. 21).

[4] Respondent has
three plants: a lime plant, a cement plant, and the Canas quarry. (Tr. 22).

[5] Carlos Alberto
Collazo Vasquez appeared at the hearing and testified for Respondent. (Tr. 223).
At the time of the hearing Collazo was Respondent’s Safety Director and had
held that position for about five years. (Tr. 224).

[6] Joel Martinez
Torres appeared at hearing and testified for Respondent. (Tr. 114). Martinez
had worked for Respondent since 2002 or 2003. (Tr. 114). At the time of the
hearing he was a welder/mechanic and had held that position for five years. (Tr.
115). In that capacity he repaired broken structure and manufactured items. (Tr.
115).

[7] Carlos G.
Vargas Martinez was present at the hearing and testified for Respondent. (Tr.
168). Vargas retired on June 30, 2011, after working for Respondent for 36
years. (Tr. 168-169, 178). His last position at the company was Industrial
Mechanic Supervisor. (Tr. 169). In that capacity he oversaw a group of
mechanics, including Martinez. (Tr. 169). Since retirement, Vargas had had
little contact with Respondent’s management, though he remained friends with
some of his employees. (Tr. 178). Vargas did not know who issued the subpoena
for the hearing. (Tr. 178).

[8] Respondent’s
counsel asked Villahermosa to review digital photographs of the street (RX-1). (Tr.
81). These photographs were taken just three weeks before the hearing (three
years after the citation) by Respondent’s counsel. (Tr. 81). They showed that
from the angle of the photographs, it was not possible to see the area cited. (Tr.
82-83).  Martinez testified that the area shown in these photographs was
similar to how it looked three years ago. (Tr. 127). However, he could not
authenticate the photographs. (Tr. 161-162).

[9] On cross
examination, Villahermosa discussed a guard on top of the mill. (Tr. 97-98). He
stated that he could see the top of the guard from below, that it was five and
a half feet high, and that he did not observe planks on the guard for a walking
surface. (Tr. 97-99). There was no guard on the backside. (Tr. 96-97).

[10] Martinez had
seen Villahermosa before the day of the inspection but had never spoken to him
before. (Tr. 160-161). He never had any conflict with Villahermosa before that
day. (Tr. 161). Vargas had some encounters with Villahermosa before that day. (Tr.
179).

[11] Collazo learned
about the condition when Villahermosa called him at lunch. (Tr. 226). He
arrived 20 minutes later. (Tr. 226). Martinez and Vargas were already there. (Tr.
243).

[12] Considering the
latter explanation, the obviously ill-conceived and poorly executed ad
hominem attack on the veracity of Inspector Villahermosa utterly fails. The
scheme hatched to place blame on the inspector is readily transparent. Indeed,
the idea that a MSHA inspector would order a miner to perform any act
prohibited by safety regulations is simply preposterous.

[13] Respondent’s
attempt to undermine the credibility of the inspector through misrepresentation
of the record has the effect of bolstering the Inspector’s testimony and
undermining the credibility of Respondent.

[14] Horacio Osvaldo
Terron Vanga appeared at hearing and testified for Respondent. (Tr. 185). At
the time of the hearing, Terron worked for Respondent and had done so since
February 2004. (Tr. 186). He started at Respondent as a maintenance planner for
the concrete fleet. (Tr. 186-187). He then worked as maintenance chief for the
concrete division, maintenance manager for concrete and logistics, the
Dessarrollos Multiples (quarry) division, and the coordinator of the
maintenance shop in Ponce. (Tr. 187). At the time of the hearing he was the
maintenance planner for the milling and packing division inside the plant. (Tr.
187). On August 26, 2010 he was the coordinator of the maintenance shop in the
cement plant. (Tr. 188). In that capacity he would plan maintenance of mobile
equipment in the quarry. (Tr. 188-189).

[15] The report
showed the crane had leaks in its hydraulic system, rusted wires, a broken
cabin, and a broken seat. (Tr. 207-208). The leak was the reason the crane was
removed from service in July. (Tr. 208). There were two crane inspections that
day, showing that both cranes, not just 774, were available. (Tr. 262-263,
279).

[16] Imilcen Rivera
appeared at hearing and testified for Respondent. (Tr. 210). Rivera worked at
Respondent as a Safety Coordinator and had done so for a year and eight months.
(Tr. 210). Before that he had worked as a safety coordinator for Marlin, a
contractor, for nine years. (Tr. 210-211). Rivera’s nickname is Emily, which
appears on some forms. (Tr. 211-212).

[17] 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