Secretary of Labor v. Youngquist Brothers Rock, Inc.

Plain-English summary

Youngquist Brothers Rock operated a surface sand, gravel, and limestone mine in Florida. An MSHA inspector saw a truck driver standing six to seven feet above the ground in a truck bed while shoveling material without a safety belt or line. Judge L. Zane Gill held that MSHA had jurisdiction because the incident occurred on a private way appurtenant to the mine and involved a truck used in mining activities. He affirmed the violation of the fall-protection standard as significant and substantial, with moderate negligence and a potentially fatal injury. The judge reduced the proposed $7,176 penalty by ten percent for good-faith abatement considerations and assessed $6,458.40.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.15005
• Outcome: The fall-protection citation was affirmed, and the proposed penalty was reduced to $6,458.40.
• Key point: Mine Act jurisdiction extended to the mine road and truck at issue, and warning signs did not replace the need for safe fall-protection practices.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

YOUNGQUIST
BROTHERS ROCK, INC.,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. SE 2012-0266 M

A.C.
No. 08-01203-279931

Mine:
Youngquist Brothers Rock Inc.

DECISION AND
ORDER

Appearances:               Emily
O. Roberts, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville,
TN, for Petitioner;

Jake
Huffman, Youngquist Brothers Rock, Inc., Myers, FL, pro se litigant, for
Respondent

Before:                                    Judge
L. Zane Gill

This proceeding arising under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994)
(“Mine Act” or “Act”), involves one section 104(a) citation, 30 U.S.C. §
814(a), issued by the Department of Labor’s Mine Safety and Health
Administration (“MSHA”) to Youngquist Brother’s Rock, Inc. (“Youngquist”).[1]
The parties presented testimony and documentary evidence at the hearing held
in Fort Myers, Florida on September 24, 2013.

The contested issues at trial for
Citation No. 8642418 included whether MSHA had jurisdiction under the Act to
issue the Citation to Youngquist and whether Youngquist violated 30 C.F.R. §
56.15005 as alleged in the Citation.

For the reasons set forth below, I find
that MSHA did have jurisdiction to issue the Citation under the Mine Act. I
also find that Youngquist violated Section 56.15005 under the Act, the negligence
was moderate, the injury was highly likely to result in fatality, and I find
that the citation was significant and substantial. I assess a penalty in the
amount of $6,458.40.

I.                  
Stipulations

At the hearing, the Secretary read the
Stipulations into the record: (Tr. 6:6-22)

1.      The respondent
owns and operates a surface mine producing sand and gravel lime rock products.
The mine, Youngquist Brothers Rock, Inc., ID number 08-01203, is located in Lee
County, Florida.

2.      Employees at
Youngquist Brothers Rock, Inc., Mine ID 08-01203 worked 80,543 hours in 2011.

3.      Copies of 104(a)
citation number 8642418 and 107(a) order number 8642417 were served on the
respondent by an inspector employed by the Mine Safety and Health
Administration.

4.      The Respondent
timely contested the 104(a) citation number 8642418.

5.      The proposed
penalty will not affect the respondent’s ability to continue business.

Prior
to the hearing, the parties also stipulated to the Commission’s jurisdiction to
hear and rule on this case in a Joint Prehearing Report received by the Court on
September 18, 2013, which states:

Jurisdiction exists because the Respondent
was an operator of a mine, I.D. Number 08-01203, as defined in section 3(d) of
the Mine Act, 30 U.S.C. § 802(d), and the products of that mine entered into
the stream of commerce or the operations or products thereof affected commerce
within the meaning and scope of Section 4 of the Mine Act, 30 U.S.C. § 803, at
all times relevant to these proceedings.

Joint Prehearing Report at 1.

II.               
Jurisdiction

A.    Statutory Definition
of “coal or other mine”

Section 3(h)(1) of the Mine Act
defines of “coal or other mine” as follows:

[C]oal or other
mine means (A) an area of land from which minerals are extracted in nonliquid
form or, if in liquid form, are extracted with workers underground, (B) private
ways and roads appurtenant to such area, and (C) lands,
excavations, underground passageways, shafts, slopes, tunnels and workings,
structures, facilities, equipment, machines, tools, or other property
including impoundments, retention dams, and tailings ponds, on the surface or
underground, used in, or to be used in, or resulting from, the work of
extracting such minerals from their natural deposits in nonliquid form, or
if in liquid form, with workers underground, or used in, or to be used in, the
milling of such minerals, or the work of preparing coal or other minerals, and
includes custom coal preparation facilities.

30
U.S.C. § 802(h)(1). (emphasis added)

It is well established that
Congress intended this definition to be interpreted broadly. See, e.g., Calmat
Co. of Ariz., 27 FMSHRC 617, 622 (Sept. 2005), citing S.
Rep. No. 95-181, at 14 (1977) ([I]t is the Committee’s intention that what is
considered to be a mine and to be regulated under this Act be given the
broadest possible interpretation.). However, the courts have recognized that
the jurisdiction of the Mine Act is not without limitations. See, e.g., Sec’y
of Labor v. Nat’l Cement Co. of Cal., Inc., et. al, 573 F.3d 788, 794-95
(D.C. Cir. 2009) (“National Cement”) (rejecting unreasonably expansive
reading of subsection 3(h)(1)(B)); Paul v. P.B.-K.B.B., Inc., 7
FMSHRC 1784, 1787 (Nov. 1985) (While we have recognized that the definition of
coal or other mine provided in section 3(h) of the Mine Act is expansive and is
to be interpreted broadly the inclusive nature of the Act’s coverage is not
without bounds.); Donovan v. Carolina Stalite Co., 734 F.2d 1547,
1551 (D.C. Cir. 1984).

In National Cement, the
Court of Appeals for the D.C. Circuit discussed reasonable limitations on what
could be considered part of a “coal or other mine under subsections 3(h)(1)(A),
(B), and (C). 573 F.3d at 793-97. The Secretary interpreted subsection (B) more
narrowly than subsection (A). Id. at 793.  She took the position that
subsection (A), which covers extraction areas, extends to all the facilities
and equipment within the boundaries of the extraction area, because virtually
everything within an extraction area is necessarily related to mining
activity. Id. at 794. However, she interpreted subsection (B),
which covers private ways and roads appurtenant to extraction areas, to apply
only to the ways and roads themselves. Id. Additionally, equipment
and vehicles traveling on such roads would fall under MSHA jurisdiction only if
they were covered under subsection (C), which covers only those facilities and
equipment that are used in, or to be used in, or resulting from mining
activities. Id. at 795. The D.C. Circuit found that the Secretary’s interpretation
of section 3(h)(1) was reasonable and entitled to deference. Id. at
794-97.

The Court in National Cement
also adopted the Secretary’s interpretation that “private” means are
“restricted to a particular group or class of persons (not to a particular
person).” Id. at 791,795. However, liability under the Mine Act requires
a finding of control because only mine “operators” can be cited and held liable
for violations. See 18 U.S.C. §§ 802(d), 814(a); Sec'y
of Labor v. Berwind Natural Res. Corp., 21 F.M.S.H.R.C. 1284,
1293 (1999) (stating that to be an “operator,” an entity must have “substantial
involvement” in the operation of the mine). Therefore, an entity cannot be held
liable unless it “operates, controls, or supervises” the mine. 30 U.S.C. §
802(d).

Section 3(h)(1)(A) of the Mine
Act is not in issue here. What is in issue is subsection (B), which covers
private ways and roads appurtenant to extraction areas themselves, and
subsection (C) which covers equipment and vehicles that are used in or
resulting from mining activities traveling on such roads. National Cement
at 794-795. Thus, what must be determined is if the area is a private way,
appurtenant to the mine and under the control of the mine, and that the truck
in question is equipment used in or resulting from mining activities.

B.     The Parties’
Positions

On
December 14, 2011, MSHA Inspector Leroy Ford[2]
(“Inspector Ford”) issued Citation No. 8642418 to Youngquist alleging a
violation of 30 C.F.R. § 56.15005. Inspector Ford observed a truck driver on
top of his load in the bed of his truck shoveling material. Ex. S-1. The driver
was not wearing a safety belt or line. Id. Inspector Ford testified that
he had just finished inspecting the mine and was doing some work in his vehicle
when he looked up and noticed a truck driver on the back of his bed about two
hundred to three hundred feet from where he was sitting. (Tr. 24:24 – 25:6) He
testified that the truck was approximately three hundred to four hundred feet
inside the gate entrance to the mine. (Tr. 26:12-20) Inspector Ford was able to
take a picture[3]
of the vehicle before it drove away. (Tr. 27:3-8)

Immediately, Inspector Ford went
straight to the office to talk to Jake Huffman[4]
(“Mr. Huffman”) and explained that he was going to issue a 107(a) imminent
danger order. (Tr. 27:18-21) Inspector Ford also testified that he wrote the Citation
because he believed the property where the truck was located belonged to the
mine. (Tr. 64:22-24) Inspector Ford testified that he told Mr. Huffman the
truck was located at the gate entrance (Tr. 28:8-9) and located on mine
property because it was just inside the gate to the mine. (Tr. 66:24-25) If the
truck driver had been outside of the gate, Inspector Ford noted, it would not
have been under MSHA’s jurisdiction. (Tr. 65:2-4)

Mr. Huffman testified that Youngquist owns
two thousand acres, and that there are pieces of land that are leased out that
MSHA does not have jurisdiction over, including the “restaurant” that sits on
the property.[5]
(Tr. 51:4-10; Ex. S-4) Mr.
Huffman testified that the truck in the picture was taken in the “restaurant”
parking lot. (Tr. 51:4-10) Mr. Huffman testified that while the truck was on
the mine property owned by Youngquist Brothers, that particular section was leased
out. (Tr. 52:12-14) Mr. Huffman testified that truck drivers or the general
public can drive into the dirt lot and go over into the leased “restaurant”
area to have lunch. (Tr. 51:22-24)  Inspector Ford spoke to Mr. Huffman and
told him that the violation occurred on his property, but Mr. Huffman testified
that he did not bring up any issues because “it’s best not to ruffle those
feathers.” (Tr. 60:19-22)

Mr. Huffman, however, did admit that the
land that the “restaurant” leases abuts the entrance and exit gate of the mine.
(Tr. 77:1-3) Inspector Ford testified that he told Mr. Huffman at the time he
wrote the imminent danger order that the truck was on his property, (Tr.
86:10-11) and at the time he issued the Citation there was no conversation that
the area in question was a lunch area and not part of the mine. (Tr. 86:21-23) To
Inspector Ford the area in question appeared to be a meals-on-wheels set up.
(Tr. 66:9-12)

C.    Analysis of the
Facts

It is important to note that at no point
during the hearing, (Tr. 82:12-14) or at any point after the hearing, did Mr.
Huffman or any agent of Youngquist provide the Court with a copy of the lease
agreement between Youngquist and the “restaurant.”[6]
Nor did Mr. Huffman call the “restaurant” owner as a witness to leasing out a
portion of the mine property. As such, there is no evidence on record other
than trial testimony of Mr. Huffman that a lease exists, and that the area in
question does not in fact belong to Youngquist’s mine and subject to MSHA
jurisdiction. Indeed, other than vague testimony that the leased property to
the “restaurant” was a “dirt” section of approximately one acre, there is no
evidence on record to show that the truck in the picture taken by Inspector
Ford was actually on the restaurant’s property.[7]
Mr. Huffman did provide a handwritten drawing of the property, but without a
lease or evidence showing where the actual property line existed, I cannot be
certain that the truck was on any other property but on Youngquist’s mine
property. Ex. S-4, Ex. R-1.

Even if Respondent had put forth
credible evidence that the area in question where the truck was located was
leased property to the “restaurant,” I would still find that under National
Cement, the area in question is subject to the jurisdiction of MSHA.[8]

Mr. Huffman admitted that the
land that the “restaurant” leases abuts the entrance and exit gate of the mine.
(Tr. 77:1-3) Additionally, according to the drawing made by Mr. Huffman, the
“restaurant” property abuts the mine property. Ex. R-1. Mr. Huffman testified
that the whole property within the gates was owned by Youngquist (Tr. 51:4-10);
that the “restaurant” was within Youngquist’s property gates (Tr. 77:1-3;
77:11-12); and assuming a lease does exist, the area in question is leased to a
private party who provides food for patrons of the mine and other people who
came onto the property. (Tr. 52:12-14) Mr. Huffman also testified that the
truck depicted in the picture was in the “restaurant’s” dirt parking lot. (Tr.
51:9-10; Ex. S-4) The “restaurant” property is considered private even if it is
open for business to the public because it is “restricted to a particular group
or class of persons, namely its customers. Therefore, according to the above, I
find that the truck in question was located on a private way appurtenant to
Youngquist’s operations.

Mr. Huffman testified that the distance
from the scales to the road, which is directly outside the mine gates, is
approximately four hundred to five hundred feet. (Tr. 59:17-20) The mine
property and the “restaurant” property share this gated entrance. (Tr.
77:11-12) When Mr. Huffman was asked if the load on the truck in the picture
appeared to be sand and gravel, Mr. Huffman testified that it seemed to be the
color of sand and gravel in the bed of the truck in the picture. (Tr. 54:16-18;
Ex. S-4) By looking at the picture and the hand drawing made by Mr. Huffman
together, it appears as though the truck in question was driving from the
scales towards the exit gates of the mine, and on his way out, the truck driver
pulled over slightly off to the side of the paved road to level off his load. (See
Ex. S-4; See Ex. R-1) I therefore conclude that the truck was used in
and resulted from the mining activities at Youngquist.

Youngquist’s control over the
“restaurant” lot can be proven circumstantially by its location and testimony
of Mr. Huffman. The “restaurant” is inside the mine’s gates, three hundred to
four hundred yards away from the scale house, and adjoining the lot on which Youngquist’s
printers and scales sit. (Tr. 77:1-3; 77:11-12; Tr. 26:12-20; Tr. 26:12-20; Ex.
R-1) There is no barrier between the “restaurant” lot and the mine. (Tr. 79:19-21)
Additionally, Mr. Huffman’s testimony showed that the behavior which led to
Citation 8642418 is unusual because of the mine’s zero tolerance policy:

They’re all aware that if they get
caught in the back of their trucks, in any of the rock mines, we’d just forever
ban you from the rock mines… There’s a zero tolerance for any of this. It’s an
issue we really don’t have. They go down the road where they’re far away from
the mines, and they do what they have to there. This is something that we do
not see.

(Tr. Tr. 58:25 − 59:9)

Mr. Huffman testified that the best
place for the truck drivers to level off their load would be four miles down
the road (Tr.
59:5-9; 60:4-7), and that this was because “[w]e don’t encourage it anywhere in
the general vicinity of the mines.” This indicates that Youngquist did have
some control over what the truck drivers did within the mine gates.[9]

I find that MSHA did have
jurisdiction to issue Citation No. 8642418 to Youngquist because the area where
the violative condition occurred was a private way appurtenant to the mine under
the control of the mine, and the truck in question was used in mining
activities.

III.            
Citation
8642418

A.    The Violation

On December 14, 2011, MSHA Inspector
Leroy Ford issued Citation No. 8642418 to Youngquist alleging a violation of 30
C.F.R. § 56.15005. The regulation states that “[s]afety belt and lines shall be
worn when persons work where there is a danger of falling.” Section 56.15005
regulates a mandatory safety standard. The Citation alleges:

One truck driver was observed on top of
a load in the bed of the truck shoveling material. The driver was not wearing a
safety belt or line. The fall to the ground was estimated to be a 6’ to 7’
drop. The truck was hauling from the scale house. The operation manager had
signs posted all around the scale house with instructions to stay off the bed
of the trucks. The signs were written in Spanish and English. This condition
was a factor that contributed to the issuance of imminent danger order #
8642418 [sic]. Therefore no abatement time was set.

Ex. S-1.[10]

The Citation also alleges that the
condition was highly likely to cause injury, that the injury was reasonably
likely to be fatal, that the violation was significant and substantial (“S&S”),
and the negligence standard was moderate negligence. Id. The Secretary
proposed a penalty of $7,176.00 for this violation.[11]
Inspector Ford observed a truck driver on top of his load in the bed of his
truck shoveling material. Id. Inspector Ford testified that the truck
driver was approximately six or seven feet off of the ground, (Tr. 25:24) and
the truck driver was not wearing a safety line, harness, belt, or anything to
keep him from falling. (Tr. 26:2-5) Inspector Ford could tell the driver did
not have safety equipment on because he had a shovel in his hand and he could
see the truck driver moving around the back part of the bed. (Tr. 26:6-9; See
also Ex. S-4) I find that Youngquist violated Section 56.15005.

B.     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.” 30 C.F.R.
§ 100.3(d). “A mine operator is required […] to take steps necessary to
correct or prevent hazardous conditions or practices.” Id. “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.”
Id. Reckless negligence is present when “[t]he operator displayed
conduct which exhibits the absence of the slightest degree of care.” Id.
High negligence is when “[t]he operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.” Id.
Moderate negligence is when “[t]he operator knew or should have known of
the violative condition or practice, but there are mitigating circumstances.” Id.
 Low negligence is when “[t]he operator knew or should have known of the
violative condition or practice, but there are considerable mitigating
circumstances.” Id. No negligence is when “[t]he operator exercised
diligence and could not have known of the violative condition or practice.” Id.

The Commission has provided guidance for
making the negligence determination in A. H. Smith Stone Co.,
stating that:

Each mandatory standard thus carries
with it an accompanying duty of care to avoid violations of the standard, and
an operator’s failure to satisfy the appropriate duty can lead to a finding of
negligence... In this type of case, we look to such considerations as the
foreseeability of the miner’s conduct, the risks involved, and the operator’s
supervising, training, and disciplining of its employees to prevent violations
of the standard in issue.

5
FMSHRC 13, 15 (Jan. 1983) (citations omitted).

Mitigation is something the operator
does affirmatively, with knowledge of the potential hazard being mitigated,
that tends to reduce the likelihood of an injury to a miner. This includes
actions taken by the operator to prevent or correct hazardous conditions.

Inspector Ford marked the citation as
moderate negligence because he explained to Mr. Huffman at the time that he
felt like they did everything they could possibly do as a company because they
had signs. (Tr. 38:14-17) Inspector Ford considered the signs to be mitigation.
(Tr. 38:22-25)

Mr. Huffman testified that he is aware
that there is an issue that some of the truck drivers want to get into the bed
of their trucks. (Tr. 57:1-5) Youngquist had seven signs at the scale house, in
English and Spanish, telling the truck drivers not to get inside the beds of
the trucks. (Tr. 21:7-10; 21:13-15; 56:23-25; 51:17-19) Mr. Huffman testified
that there is a zero tolerance policy for getting onto the truck beds at
Youngquist and that the drivers go down the road four miles where they are far
from the mine to level the loads. (Tr. 59:5-9; 60:4-7)

Youngquist, however, does not provide a
safe place for the drivers to level the load on the mine property. (Tr.
59:11-13) They do not provide safety lines, belts, or harnesses. (Tr. 59:14-16)
Truck drivers are not advised of safe methods of tying off on the mine
property. (Tr. 60:8-10) There are no signs that say that truck drivers must
wear a belt to line if they need to tarp. (Tr. 58:9-11) There is no
site-specific hazard awareness training for tying off. (Tr. 58:12-15) There are
no trainings or signs for acceptable safety methods for leveling the load of
the truck bed. (Tr. 58:16-18) There are no trainings or signs about acceptable
safety methods for leveling the load of the truck bed. (Tr. 58:16-18) I find
that given the known issue to Youngquist, they should have training for safely
tying off and safely leveling the load of the truck bed. For the reasons stated
above, I find the negligence to be moderate.

C.    Gravity

The
gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. §
820(i), “is often viewed in terms of the seriousness of the violation.” Consolidation
Coal Co., 18 FMSHRC 1541, 1549 (Sep. 1996) (citing Sellersburg
Stone Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th
Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681
(April 1987)). The seriousness of a violation can be examined by looking at the
importance of the standard which was violated and the operator’s conduct with
respect to that standard, in the context of the Mine Act’s purpose of limiting
violations and protecting the safety and health of miners. See Harlan
Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). The gravity
analysis focuses on factors such as the likelihood of an injury, the severity
of an injury, and the number of miners potentially injured. The Commission has
recognized that the likelihood of injury is to be made assuming continued
normal mining operations without abatement of the violation. U.S. Steel
Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985).

Inspector Ford testified that the truck
driver was approximately six or seven feet off of the ground, (Tr. 25:24) and
the truck driver was not wearing a safety line, harness, belt, or anything to
keep him from falling. (Tr. 26:2-5) Inspector Ford could tell the driver did
not have safety equipment on because he had a shovel in his hand and he could
see the truck driver moving around the back part of the bed. (Tr. 26:6-9; See
Ex. S-4) The safety harnesses tether the drivers to the truck itself to prevent
falls. (Tr. 33:22-25) From what Inspector Ford observed, the truck driver could
fall over the side, hit the ground head first, and probably break his neck. (Tr.
32:7-13) The driver could have been killed because he was high enough off of
the ground. (Tr. 32:7-13) Based on the above, I agree that the injury is
serious in nature and that the resulting injury could result in a fatality.

D.    Significant and
Substantial                               

The Secretary bears the burden of
proving all elements of a citation by a preponderance of the evidence. In
re: Contests of Respirable Dust Sample Alteration Citations: Keystone Mining
Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C.
Cir. 1998); Jim Walter Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008)
(ALJ Zielinski) (“The Secretary’s burden is to prove the violations and related
allegations, e.g., gravity and negligence, by a preponderance of the
evidence.”) Some of the citations in dispute and discussed below have been
designated by the Secretary as significant and substantial (“S&S”). A
violation is properly designated S&S “if, based upon the particular facts
surrounding that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably
serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr.
1981). The question of whether a particular violation is S&S must be based
on the particular facts surrounding the violation. Texasgulf, Inc., 10
FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007
(Dec. 1987). S&S enhanced enforcement is applicable only to violations of
mandatory health and safety standards. Cyprus Emerald Res. Corp. v. FMSHRC,
195 F.3d 42, 45 (D.C. Cir. 1999).

In Mathies Coal Co., the
Commission established the standard for determining whether a violation was
S&S:

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.

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

The third element of the Mathies
test presents the most difficulty when determining whether a violation is
S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug.
1985), the Commission provided additional guidance: [T]he third element of the Mathies
formula “requires that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there is an injury.”
(citing U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984)).
The Secretary, however, “need not prove a reasonable likelihood that the
violation itself will cause injury.” Cumberland Coal Resources, 33
FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS
Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010). Further, the Commission has
found that “the absence of an injury-producing event when a cited practice has
occurred does not preclude a determination of S&S.” Id.
(citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue
Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). This
evaluation is also made in consideration of the length of time that the
violative condition existed prior to the citation and the time it would have
existed if normal mining operations had continued. Elk Run Coal Co., 27
FMSHRC at 905; U.S. Steel Mining Co., Inc., 6 FMSHRC at 1574.

As stated above, I have already
determined that there was a violation of a mandatory safety standard. Additionally,
I determined there is a high likelihood that the injury in question will be of
a reasonably serious nature, i.e. broken neck or broken back resulting in a
fatality. A measure of danger to safety, a discrete safety hazard, was
contributed to by the lack of harness or safety equipment, and thus could fail to
keep the truck driver from falling from the truck bed, which could result in
serious injuries to a miner. What is left to be determined is whether there was
a reasonable likelihood that the hazard contributed to will result in an
injury.

Inspector Ford had just finished
inspecting the mine. He was doing paper work in his vehicle when he looked up
and noticed a truck driver on the back of his bed about two hundred to three
hundred feet from where he was sitting. (Tr. 24:24 – 25:6) That is what led
Inspector Ford to write the imminent danger order. (Tr. 25:20-22) Inspector
Ford told Mr. Huffman that the reason he wrote the imminent danger order was
because a man was inside the back of the bed without any fall protection and he
could fall and possibly be killed. (Tr. 28:3-6)

Inspector Ford testified that he marked
the citation as highly likely because he felt that if the man had fallen from
the top of the truck he could have broken his neck or his back, and that would
have resulted in paralysis or death. (Tr. 36:14-19; 37:3-6) Inspector Ford also
testified that he felt that falling was very likely to happen from where the
truck driver was standing in the back of the bed. (Tr. 36:24-25) It is also
apparent form the photo exhibit that the truck driver was standing towards the
back of the truck bed. Ex. S-4. Inspector Ford testified that he designated one
person affected, and that person was the truck driver. (Tr. 37:7-8) Accordingly,
I find that the Secretary did meet his burden to prove S&S.

E.     Penalty

The
principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well
established. Section 110(i) of the Mine Act delegates to the Commission and its
judges the “authority to assess all civil penalties provided in [the] Act.” 30
U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the
Commission to assess said penalty. 29 C.F.R. § 2700.28.

Under Section 110(i)
of the Mine Act, the Commission is to consider the following when assessing a
civil penalty: (1) the operator’s history of previous violations; (2) the
appropriateness of such penalty to the size of the business of the operator
charged; (3) whether the operator was negligent; (4) the effect on the
operator's ability to continue in business; (5) the gravity of the violation;
and (6) the demonstrated good faith in abatement of the violative condition. 30
U.S.C § 820(i). Thus, the Commission
alone is responsible for assessing final penalties. See Sellersburg
Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir.
1984) (“[N]either the ALJ nor the Commission is bound by the Secretary's
proposed penalties … we find no basis upon which to conclude that [MSHA's Part
100 penalty regulations] also govern the Commission.”); See American Coal
Co., 35 FMSHRC 1774, 1819 (July 2013)(ALJ).

The Commission has repeatedly held that
substantial deviations from the Secretary's proposed assessments must be
adequately explained using the section 110(i) criteria. E.g., 293 Sellersburg Stone Co., 5 FMSHRC at 293; Hubb
Corp., 22 FMSHRC 606, 612 (May 2000); Cantera Green, 22 FMSHRC
616, 620-21 (May 2000) (citations omitted). A judge need not make exhaustive
findings but must provide an adequate explanation of how the findings
contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC
at 622.

The Secretary assessed the penalty for
this citation as $7,176.00. Youngquist operated the mine for approximately
80,543 hours in 2011, which indicates that the mine is medium sized. (Tr.
6:6-22; Ex. S-6) I have already determined above that Youngquist’s negligence
was moderate. As per the joint stipulations, Youngquist’s business will not be
significantly affected by the assessed penalty of $7,176.00. (Tr. 6:6-22) As to
the gravity of the violation, I found the violation to be S&S. The
Secretary did not apply to ten percent penalty reduction for good faith
abatement because it was issued in conjunction with an imminent danger order,
Order 8642417. Therefore, no abatement time was set. However, given the
circumstances that the truck driver was not apprehended and Youngquist could
not abate the violation, I will give Youngquist the ten percent penalty
reduction. Therefore, I assess the penalty amount against Youngquist to be
$6,458.40.

WHEREFORE,
it
is ORDERED that Youngquist pay a penalty of $6,458.40 within
thirty (30) days of the filing of this decision.

/s/
L. Zane Gill

L. Zane Gill

Administrative
Law Judge

Distribution:

Emily
O. Roberts, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th
Avenue North, Suite 240, Nashville, TN 37219

Jake Huffman,
Youngquist Brothers Rock, Inc., 15401 Alico Road, Fort Myers, FL 33913

[1] On July 25,
2013, I signed a Decision Approving Partial Settlement for the remaining eight
Citations for Docket No. SE 2012-0266 M, and ordered Youngquist Brothers, Inc.
to pay a total sum of $3,278.00.

[2] After serving
in Vietnam, Inspector Ford worked in the coal mines in Kentucky. (Tr. 10:19-21)
During his twenty-six year tenure for a surface mine (Tr. 5-13), he was a
safety director for ten years, and worked on pretty much everything else in the
mine. (Tr. 16-18) He also worked as a truck driver for ten years before working
for MSHA. (Tr. 12:5-6) Inspector Ford began working for MSHA in 1998 in the
metal non-metal division. (Tr. 12:8; 12:19-25) As of the day of the hearing,
Inspector Ford worked a total of sixteen years for MSHA in Florida. (Tr.
13:20-21)

[3] The picture was
admitted into evidence. Ex. S-4.

[4] At the time of
the hearing, Mr. Huffman was the general manager of Youngquist Brothers Rock
and agreed to represent the Respondent and to give testimony as required at
trial. (Tr. 5:9-15)

[5] The “restaurant”
Mr. Huffman refers to is nothing more than a “truck that this man has turned
into his restaurant… [that] hasn’t moved… [and] [h]e set it up on blocks.” (Tr.
75:4-9)

[6] The Court did
provide Mr. Hufffman and Youngquist the opportunity to provide a copy of the
lease to the Court after the hearing.

[7] Mr. Huffman
made the distinction that the mine property is the area that is asphalted and
the “restaurant” property is the dirt area. (Tr. 67:8-18)

[8] As the litigant
was pro se, I will include the National Cement reasoning in the decision
to explain that MSHA had jurisdiction to issue Citation No. 8642418 even if the
land was leased to the “restaurant.”

[9] This is not to
say that MSHA has jurisdiction of the operations of the “restaurant,” but over
violations such as the Citation at issue in this docket.

[10] The actual
imminent danger order number is 8642417.

[11] The Respondent
failed to present any evidence regarding the Citation itself. The Respondent’s
sole defense at the hearing was that MSHA lacked jurisdiction to issue the
Citation. In fact, upon the conclusion of the Secretary’s direct examination of
Inspector Ford, Mr. Huffman stated that “[e]verything he said is very accurate”
when referring to Inspector Ford’s testimony. (Tr. 50:10)