Secretary of Labor v. Campbell County Highway Department

Plain-English summary

MSHA issued two withdrawal orders at Campbell County's quarry for hydraulic fluid pooled in a loader cab and rock debris covering an elevated hammer-mill walkway. Judge Alan G. Paez found the fluid violation S&S and unwarrantable because the leak had been documented for five months, the loader remained in use, and the spill created a fire hazard in the enclosed cab. He also upheld the safe-access violation as S&S and unwarrantable because miners used the debris-covered walkway for inspections and maintenance, the obvious rock accumulation remained for at least two days, and the county had prior notice of the standard. For the walkway order, the Judge reduced the expected injury from permanently disabling to lost workdays or restricted duty. He assessed the statutory-minimum $4,000 penalty for each order, totaling $8,000.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.4102 and 56.11001
• Outcome: The hydraulic-fluid order was affirmed, the walkway order's injury severity was reduced, and total penalties were $8,000.
• Key point: Known fluid leaks and persistent debris on a work-access route can support S&S and unwarrantable-failure findings even at a small government-operated quarry.

Full text (FMSHRC public release)

FO#5D.WPD

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

September 30, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA),

Petitioner,

v.

CAMPBELL COUNTY HIGHWAY

DEPARTMENT,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. SE 2012-198-M

A.C. No. 40-00739-276522

Mine: County Quarry

DECISION

Appearances:  Robert S. Bexley, Esq., Office of the Solicitor, U.S. Department of Labor, Atlanta,
Georgia, for Petitioner;

Charles W. Kite, Esq., Knoxville, Tennessee, for Respondent.

Before:            Judge Paez

This case is before me upon the Petition for the Assessment of a Civil Penalty filed by the
Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). In dispute are two section 104(d)(2) orders
issued by the Mine Safety and Health Administration (“MSHA”) to the Campbell County
Highway Department as the owner and operator of the County Quarry mine. To prevail, the
Secretary must prove the cited violations “by a preponderance of the credible evidence.”  In re:
Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995)
(citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom.,
Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This
burden of proof requires the Secretary to demonstrate that “the existence of a fact is more
probable than its nonexistence.”  RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070
(Sept. 2000) (citations and internal quotation marks omitted), aff’d, 272 F.3d 590 (D.C. Cir.
2001).

I. STATEMENT OF THE CASE

The two alleged violations in this case were issued at the Campbell County (Tennessee)
Highway Department’s County Quarry. Order No. 8542424 charges the Campbell County
Highway Department (“Campbell County” or “Respondent”) with a violation of 30 C.F.R.
§ 56.4102

for failing to remove in a timely manner a pool of flammable hydraulic fluid on the
cab floor of the mine’s John Deere 544G loader. Order No. 8542431 charges the mine operator
with a violation of 30 C.F.R. § 56.11001

for failing to clean up an accumulation of rock material
on a walkway used to service the quarry’s rock crusher, also known as the hammer mill. The
Secretary designated both violations as significant and substantial (“S&S”)

and in both instances
characterized the Campbell County Highway Department’s negligence as high. The Secretary
further asserts that each violation was an unwarrantable failure

to comply with a mandatory
health and safety standard. The Secretary proposed a penalty of $4,000.00 for each violation, for
a total penalty of $8,000.00.

Chief Administrative Law Judge Robert J. Lesnick assigned Docket No. SE 2012-198-M
to me, and I held a hearing in Knoxville, Tennessee.

The Secretary presented testimony from
MSHA Inspector Robert McPheeters. Campbell County presented testimony from Safety
Director Samuel Franklin, Campbell County Highway Superintendent Dennis Potter, and
Assistant Road Superintendent Estel Muse. The parties each filed post-hearing briefs, and
Campbell County Highway Department filed a reply brief.

II. ISSUES

For Order No. 8542424, the Secretary asserts that Respondent failed to fulfill its duty
imposed by 30 C.F.R. § 56.4102 by allowing a combustible liquid to accumulate on the floor of a
vehicle at the mine. (Sec’y Br. at 5–7.) The Secretary further claims that the dangerous nature of
the violation, the length of time the violation existed, and Respondent’s knowledge of the
violation provide sufficient aggravating circumstances to support the issuance of an order under
section 104(d)(2). (Id. at 7–13.) Campbell County asserts that the Secretary did not satisfy its

burden of persuasion to show that a combustible liquid was present. (Resp’t Br. at 4–5.)
Alternatively, Campbell County claims that additional safety measures mitigated the gravity of
the violation and the operator’s efforts to repair the violative leak mitigate the level of
Respondent’s negligence. (Resp’t Br. at 5–7.)  

For Order No. 8542431, the Secretary contends Respondent failed its duty under
30 C.F.R. § 56.11001 to maintain safe access to a workplace. (Sec’y Br. at 15–17.) The Secretary
asserts that an accumulation of rock material made access to the mine’s rock crusher unsafe. (Id.)
He further claims that the duration of the violation’s existence and the operator’s knowledge of
the violation were sufficient aggravating factors to support the issuance of an order under section
104(d)(2). (Id. at 16–25.) Campbell County contends the area where the accumulation occurred
was not a working place and, alternatively, disputes the Secretary’s allegations about the danger
posed by the debris and the length of time the debris was present. (Resp’t Br. at 7–15.)  

Accordingly, the following issues are before me: (1) whether the Secretary has carried his
burden of proof that Respondent violated the Secretary’s mandatory health or safety standards
regarding the removal of spills involving flammable or combustible liquids; (2) whether the cited
conditions violated the Secretary’s mandatory health or safety standards regarding safe access to
working places; (3) whether the record supports the Secretary’s assertions regarding the gravity
of the alleged violations, including the S&S determinations; (4) whether the record supports the
Secretary’s assertions regarding Campbell County’s negligence, including the unwarrantable
failure determinations, in committing the alleged violations; and (5) whether the Secretary’s
proposed penalties are appropriate.

III. FINDINGS OF FACT

The Campbell County Highway Department owns and operates the County Quarry in
Jacksboro, Tennessee. Campbell County mines and crushes stone at the County Quarry for use
on the county’s roads. (Tr. 228:6–10.) Campbell County employs four workers at the County
Quarry. (Tr. 162:2–10.) Among its equipment, Campbell County employs a rock crusher to grind
larger pieces of rock into gravel. The mine also employs a John Deere 544G front-end loader to
move and load rock. (Tr. 46:15–19.)

On June 22, 2010, MSHA Inspector Robert McPheeters and his supervisor, Inspector Don
Ratliff, visited the County Quarry as part of a regular biannual inspection of the Mine.
(Tr. 33:11–14.) McPheeters had extensive experience as a mining safety inspector, working for
thirty-three years as a state or federal inspector, including thirteen years for MSHA.
(Tr. 24:11–28:16.)

A.        Order No. 8542424: The John Deere Loader

Prior to his visit, McPheeters looked at past MSHA inspection reports to check for any
history of violations at the mine. (Tr. 37:1–25.) McPheeters’ review revealed a history of
citations and orders issued under section 104(a) and (d) of the Mine Act. (Tr. 39:10–12,
42:11–19.) Upon arriving at the mine, McPheeters and Ratliff also examined the mine’s pre-shift
safety inspection reports, which included notes indicating the presence of a leak on the mine’s
John Deere front-end loader. (Tr. 57:4–6.)

Along with quarry Safety Director Samuel Franklin, inspectors McPheeters and Ratliff
examined the mine’s John Deere 544G front-end loader. (Tr. 46:12–20.) The front-end loader has
a single-person cab. (Tr. 47:14–23.) The cab stands seven to eight feet above the ground and has
one entry door. (Tr. 47:6–23) The vehicle’s cab also has windows on all sides. (Tr. 47:22–23.)
Although not required by law, the cab possessed a fire extinguisher. (Tr. 48:7.)

At the mine, an employee alerted McPheeters to a potential problem with the front-end
loader, telling the inspector that a valve or hose in the machine was leaking. (Tr. 50:18–21.)
Campbell County’s Franklin testified that one of the inspectors asked him to remove a rubber
mat covering the floor of the vehicle’s cab before checking the interior. (Tr. 149:10–11.) Upon
inspection of the cab floor, McPheeters found an oily sheen across the entire floor and a puddle
of brown, oily fluid in the corner. (Tr. 48:12–49:19.) McPheeters identified the brown liquid as
oil-based hydraulic fluid. (Tr. 48:19.) The fluid was mixed with dirt. (Tr. 51:21–22.)

The inspectors observed that the mine’s workplace examination records first noted the
presence of a leak of hydraulic fluid in January 2010, five months prior to the June 22 MSHA
inspection. (Tr. 115:14.) Yet, Campbell County’s records revealed no attempts to repair the
hydraulic fluid leak. (Tr. 125:21–126:2.)

Based on his observations, Inspector McPheeters issued Order No. 8542424, alleging a
violation of 30 C.F.R § 56.4102:

Flammable or combustible liquid spillage or leakage was not
removed in a timely manner or controlled to prevent a fire hazard.
On the John Deere 544G loader, a hydraulic leak exist[ed] in the
cab. The floor is covered with oil and employees are exposed to a
fire or burn hazard. The mine operator has engaged in aggravated
conduct constituting more than ordinary negligence. This violation
is an unwarrantable failure to comply with a mandatory standard.

(Ex. P–4 at 1.) McPheeters designated the order as an S&S violation affecting one person and
characterized the Campbell County Highway Department’s negligence as “high” and as an
unwarrantable failure to comply with a mandatory health or safety standard (Id.) Because of the
mine’s history of citations and orders under section 104(d)(1) of the Mine Act, McPheeters
issued a closure order under section 104(d)(2) for the alleged violation.

B.        Order No. 8542431: The Hammer Mill

After examining the front-end loader, the MSHA inspectors checked the mine’s rock
crusher, which they generally referred to as the “hammer mill.” (Tr. 96:14–15.) The hammer mill
is a big piece of equipment used to reduce large rocks to a size suitable for use by the Campbell
County Highway Department. (Tr. 70:14–15.) The hammer mill operates almost continually
when the mine is open. (Tr. 178:1–10.) The machine’s design causes material to be expelled
during the crushing process. (Tr. 172:6–8.) To prevent this expulsion of material, the hammer
mill is equipped with chains covering the ejection points. (Tr. 168:14–25.)

A miner operates the hammer mill remotely from a stand located approximately 100 feet
away from the crushing device. (Tr. 161:2.) However, workers must still access the area
immediately surrounding the crusher device to perform occasional repairs and weekly
maintenance. (Tr. 161:6–13.) To facilitate those repairs and maintenance, Campbell County
installed an elevated walkway around the hammer mill. (Tr. 228:25–229:10.) The main portion
of the walkway is approximately eight feet long, thirty inches wide, and stands about eight feet
off the ground. (Tr. 71:5–14.) The walkway has guard rails around the outer edge.
(Tr. 73:17–20.) The walkway runs around the side of the hammer mill and then reaches a small
platform area that is level with the walkway. (Tr. 185:4–7.) A feeder runs across the small
platform and connects to the hammer mill. (Tr. 182:23–183:3.) The feeder stands approximately
four feet above the walkway and platform. (Tr 73:10–13.) A small catwalk branches off from the
platform and runs to other parts of the rock crusher. (Tr. 183:21–184:17.)

Upon inspecting the elevated walkway, Inspector McPheeters discovered an accumulation
of rock material six inches to a foot in depth. (Tr. 73:21–22.) The material covered the entire
width of the elevated walkway and stretched a length of four to five feet. (Tr. 74:7–15.) The
material, which included rocks ranging from the size of gravel to the size of a fist, had spilled out
of the hammer mill where the feeder overhangs the walkway. (Tr. 73:5–9.) McPheeters testified
that during the inspection an employee at the mine told him the hammer mill was missing chains
that would prevent rock from being thrown out of the mill. (Tr. 97:12–15.)

When looking at the County Quarry’s workplace records, McPheeters discovered that the
accumulated material had been noted on June 16, six days prior to the inspectors’ visit, but with
no indication it had been cleaned up. (Tr. 79:18–21.) Franklin, the mine’s safety director,
testified that the hammer mill would take several days to expel the quantity of rock McPheeters
found on the walkway. (Tr. 178:2–4.)

Based on his observations, McPheeters issued Order No. 8542431, alleging a violation of
30 C.F.R. § 56.11001:

Safe means of access was not provided and maintained to all
working places. At the primary plant the walkway adjacent to the
hammer mill had a build up of rock material about six inches to a
foot deep. Employees that work in this area are exposed to a trip or
fall hazard. This condition was noted on work place exams;
however, it was not corrected.

(Ex. P–18 at 1.) McPheeters designated Order No. 8542431 as an S&S violation affecting one
person and characterized Campbell County’s negligence as “high” and as an unwarrantable
failure to comply with a mandatory health or safety standard. (Id.)

IV. PRINCIPLES OF LAW

A.        30 C.F.R. § 56.4102 – Spillage and Leakage

Section 56.4102 requires that operators (1) remove or control (2) flammable or
combustible liquid spillage or leakage (3) in a timely manner.

MSHA has defined “flammable liquid” as a “liquid that has a flashpoint below 100°F.”
30 C.F.R. § 56.2. The Secretary has defined “combustible liquids” to mean “liquids having a
flash point at or above 100°F.” Id. “Flash point” in turn is defined as “the minimum temperature
at which sufficient vapor is released by a liquid or solid to form a flammable vapor-air mixture at
atmospheric pressure.” Id. As one Commission Judge observed, these expansive definitions
mean the regulation covers nearly every liquid other than water. See Lehigh Southwest Cement
Co., 33 FMSHRC 340, 352–353 (2011) (ALJ).

The determination of whether an operator fails to correct a defect in a timely manner
depends entirely on when the defect occurred and when the operator knew or should have known
of the condition’s existence. See Lopke Quarries, Inc., 23 FMSHRC 705, 715 (July 2001)
(affirming Judge’s ruling that the Secretary must present evidence of when a device became
defective to show a violation of 30 C.F.R. § 56.14100(b) for failing to correct the defect “in a
timely manner”) (footnote omitted). Where an operator has actual knowledge of a violative
condition and nevertheless continues to use the equipment without addressing the hazard,
Commission Judges have found violations of this standard. See, e.g., Consolidated Rebar, Inc.,
35 FMSHRC 3025, 3027–28 (Sept. 2013) (ALJ) (violation established because operator
continued to use vehicle for several days while damaged); Northshore Mining Co., 35 FMSHRC
1006, 1017 (Apr. 2013) (ALJ) (violation established because operator used vehicle for six
months without replacing damaged mirrors); Sweetman Construction Co., 21 FMSHRC 101
(Jan. 1999) (ALJ) (violation established because defective truck was in use at the time the
inspector found the defect); Walker Stone Company, 20 FMSHRC 1225 (Oct. 1998) (ALJ)
(violation established where the operator had been using equipment without functioning
headlights for a long period of time due to a lack of knowledge that MSHA required them).

B.        30 C.F.R. § 56.11001 – Safe Access

Section 56.11001 requires that operators (1) provide and maintain (2) safe means of
access (3) to all working places. The Commission has held that section 56.11001 “comprises the
dual requirements of providing and maintaining safe access to working places.” Watkins Eng’rs
& Constructors, 24 FMSHRC 669, 680 (July 2002) (emphasis added) (citation omitted). The
Commission also has concluded that the term “maintain” requires “an operator to uphold, keep
up, continue, or preserve the safe means of access it has provided to a working place.” Lopke
Quarries, 705 at 708. MSHA has defined a “working place” as any place in or about a mine
where work is being performed.” 30 C.F.R. § 56.2.

The Commission has held that in determining whether a broadly worded standard that is
intended to be applied to many factual situations, such as this one, applies to a specific situation,
“it is appropriate to evaluate the evidence in light of what a ‘reasonably prudent person, familiar
with the mining industry and the protective purpose of the standard, would have provided in
order to meet the protection intended by the standard.’” Ideal Cement Co., 12 FMSHRC 2409,
2415 (Nov. 1990) (citing Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987)). Applied to section
56.11001, the standard imposes an obligation on the operator to make each means of access to a
working place safe unless, for example, there is no reasonable possibility that a miner would use
the route as a means of reaching a workplace. The Hanna Mining Co., 3 FMSHRC 2045, 2047
(Sept. 1981).

C.        Significant and Substantial Violations

A violation is S&S “if, based on 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).
To establish an S&S violation, the Secretary 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) (footnote omitted);
see also Buck Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135-36 (7th
Cir. 1995) (affirming ALJ’s application of the Mathies criteria); Austin Power, Inc. v. Sec’y of
Labor, 861 F.2d 99, 104 (5th Cir. 1988) (approving the Mathies criteria).

The Commission has provided guidance to Administrative Law Judges in applying the
Mathies test. The Commission has observed that “the reference to ‘hazard’ in the second element
is simply a recognition that the violation must be more than a mere technical violation—i.e. that
the violation present a measure of danger.” U.S. Steel Mining Co., 3 FMSHRC 822, 827 (Apr.
1981). The Commission also has indicated that “[t]he correct inquiry under the third element of
Mathies is whether the hazard identified under element two is reasonably likely to cause injury.”
Black Beauty Coal Co., 34 FMSHRC 1733, 1742–43 & n.13 (Aug. 2012). Finally, the
Commission has specified that evaluation of the reasonable likelihood of injury should be made
assuming continued mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).

D.        Unwarrantable Failure 

The Commission has determined that unwarrantable failure is aggravated conduct
constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001
(Dec. 1987). It is characterized by “indifference,” a “serious lack of reasonable care,” “reckless
disregard,” or “intentional misconduct.” Id. at 2003–04. Whether conduct is “aggravated” in the
context of unwarrantable failure is determined by looking at all the facts and circumstances of a
case to see if aggravating or mitigating factors exist. The Commission has identified several such
factors, including: (1) the length of time a violation has existed, (2) the extent of the violative
condition, (3) whether the operator has been placed on notice that greater efforts are necessary for
compliance, (4) the operator’s efforts in abating the violative condition, (5) whether the violation
was obvious, (6) whether the violation posed a high degree of danger, and (7) the operator’s
knowledge of the existence of the violation. See IO Coal Co., 31 FMSHRC 1356, 1350-51 (Dec.
2009). These factors are viewed in the context of the factual circumstances of each case.
Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). All relevant facts and
circumstances of each case must be examined to determine whether an actor’s conduct is
aggravated or mitigating circumstances exist. Id.

V. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW

A.        Order No. 8542424 – The John Deere Loader

1.         Further Findings of Fact

a.         The Presence and Flammability of Hydraulic Fluid

Respondent claims the Secretary did not demonstrate that the material in the front-end
loader’s cab was hydraulic fluid. (Resp’t Br. at 2, Resp’t Reply at 2.) Respondent’s argument
lacks support in the evidence. Here, McPheeters, an MSHA inspector with thirty-three years of
experience working at mines, identified the material on the cab floor as hydraulic fluid that had
likely leaked from the front-end loader’s steering column. (Tr. 48:19.) At the hearing,
McPheeters testified that an employee of the mine alerted the MSHA inspectors to the hydraulic
fluid leak before the inspectors checked the vehicle. (Tr. 50:18–21.) Moreover, Campbell
County’s own witness, Franklin, testified that the front-end loader had leaked oil into the cab
intermittently for several months. (Tr. 217:2–218:4.) Franklin further testified that the mine had
attempted to repair the leak by replacing seals in the hydraulic system. (Tr. 217:2–218:4). Finally,
Franklin testified that he cleaned the pooled liquid from the cab floor with Oil-Dri, a material
specifically designed for cleaning oil-based fluids. (Tr. 157:10–15.) Indeed, Campbell County’s
witnesses failed to provide any evidence suggesting an alternative origin for the fluid in the
vehicle’s cab, or even questioning the Secretary’s assertion that the spill was of hydraulic fluid.
Given the evidence before me, I find that the accumulated material on the cab floor of the John
Deere loader was hydraulic fluid.

Respondent also argues that the Secretary has not demonstrated that the accumulated
fluid was flammable or combustible.

(Resp’t Br. at 2.) At the hearing, however, McPheeters
credibly testified from his extensive experience that hydraulic fluid is combustible.
(Tr. 52:7–53:3.) Given his experience, I find McPheeters’ testimony persuasive. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998) (relying on the opinion of an
experienced inspector to conclude that substantial evidence supported an ALJ’s S&S
determination). Meanwhile, Campbell County again curiously failed to present any evidence at
hearing suggesting the fluid in the cab was not flammable.

Based on the evidence before me, I therefore find that the accumulated liquid was
hydraulic fluid and that it was combustible.

b.         The Duration of the Spill

Respondent also disputes the amount of time the leaked hydraulic fluid was present in the
front-end loader’s cab. (Resp’t Br. at 5–7.) Here, Inspector McPheeters testified the hydraulic
fluid spill was first noted in equipment examination reports in January 2010, five months prior to
the MSHA inspection. (Tr. 59:20–23.) Although McPheeters did not specifically note any
subsequent equipment examination reports showing the presence of hydraulic fluid, the MSHA
investigator testified that his use of the term “since” in his notes suggested he had found other
examination reports noting the presence of the fluid after January. (Tr. 59:20–23,
134:18–135:23.) McPheeters also testified that Respondent did not produce any repair records
showing him the front-end loader’s leak had been remedied. (Tr. 89:6–19.) McPheeters further
noted the quantity of hydraulic fluid present in the cab and the presence of dirt mixed into the
fluid suggested the leakage was present “for sometime.” (Tr. 51:15–52:6.) Accordingly,
McPheeters inferred the material had been present since first reported in January. (Tr. 63:11–22.)

At the hearing, Respondent presented testimony that the mine attempted to repair the
front-end loader after the leak’s discovery in January. Assistant Superintendent Estel Muse, who
oversaw repair of equipment at the mine during the period, claimed Campbell County had
worked on the front-end loader three times, but he was unsure of the precise dates of the work.
(Tr. 247:11–15.) Safety Director Franklin likewise testified the operator attempted to repair the
leak twice prior to the June 22 inspection, but admitted neither attempt permanently solved the
problem. (Tr. 153:8–154:2.) Superintendent Potter testified that the county purchased a set of
seals specific for the 544G John Deere front-end loader on November 3, 2009, over seven
months prior to McPheeters’ inspection, and that the seals were used on the machine.
(Tr. 227:1–20.) Nevertheless, Campbell County failed to provide any record of repairs for
the front-end loader during that period. Speaking specifically of the leak McPheeters cited on
June 22, Franklin testified the accumulated liquid was present for at least two days prior to the
inspection. (Tr. 215:14–25.)

Based on the above testimony, I conclude the leak in the front-end loader’s hydraulic
system existed from January until the MSHA inspection. Campbell County’s efforts to repair the
loader were repeatedly ineffectual. I further find the specific accumulation forming the basis of
the Secretary’s claim existed for at least two days prior to the examination.

2.         Analysis and Conclusions of Law

a.         Violation of 30 C.F.R. § 56.4102

Inspector McPheeters issued Order No. 8542424 for Campbell County’s failure to clean
up an accumulation of hydraulic fluid in the cab of the mine’s John Deere 544G front-end loader.
(Ex. P–4.) I have already found that the accumulated liquid present in the John Deere loader’s
cab was hydraulic fluid, which is a combustible liquid as defined by 30 C.F.R. § 56.2. I therefore
determine that an accumulation of combustible material was present and not controlled,
satisfying the first and second elements of a violation of § 56.4102.

Consequently, this violation turns on whether Campbell County failed to remove the
leakage in a timely manner. As discussed above, I have found that the defect causing the leak
existed for five months prior to the MSHA inspection. I have also found that the accumulation of
hydraulic fluid on June 22 existed for at least two days, during which the operator knew of the
leaked fluid and still operated the vehicle.

Given the evidence before me, I determine that Campbell County failed to remove the
leakage in a timely manner. The repeated recurrence of the leak, despite numerous, inadequate
repair efforts throughout the five-month period leading up to MSHA’s inspection, put Campbell
County on notice that it needed to be vigilant in checking for new accumulations of hydraulic
fluid. Furthermore, Campbell County had actual knowledge that the combustible liquid lay at the
feet of the front-end loader’s operator for two days, yet failed to clean up the liquid. Considering
the danger posed by having a pool of combustible liquid at the feet of a worker in a vehicle eight
to ten feet off the ground, as well as the ease with which the material could be removed, the
operator could be expected to remove the hydraulic fluid immediately upon noticing the
accumulation. In fact, Franklin testified that he was able to clean the accumulation with a
pressure washer and Oil-Dri. (Tr. 157:10–15.) Under the circumstances, two days certainly was
not a timely response. Thus, I conclude that Respondent violated 30 C.F.R. § 56.4102.

b.         Gravity and S&S Determination                    

Campbell County’s violation of section 56.4102 establishes the first element of the
Mathies test for an S&S violation. The second element of the Mathies test asks whether the
violation contributed to a discrete safety hazard; that is, whether the violation provides a measure
of danger to safety. Here, Inspector McPheeters credibly testified that accumulated hydraulic fuel
contributed to the safety hazard of a fire in the cab of the front-end loader, as well as the hazard
of slipping and falling from the vehicle. (Tr. 55:10–18.) Respondent claims that the risk of a fire
was negligible because the vehicle’s operator did not smoke. (Resp’t Br. at 13.) However,
McPheeters testified that the electrical components in the vehicle’s cab or a related fire in the
engine of the vehicle also could light the hydraulic fluid on fire. Accordingly, I determine that the
violation contributed to the discrete safety hazard of a fire in the vehicle cab. The Secretary has
therefore met his burden of proof on the second element of Mathies.

The third and fourth elements of Mathies ask whether the safety hazard is reasonably
likely to contribute to a reasonably serious injury. The Secretary claims that injuries in this
instance are reasonably likely to be fatal. I recognize that the opinion of an experienced inspector
is entitled to significant weight. Harlan, 20 FMSHRC at 1278–79. Based on the quantity of
hydraulic fluid and its location in the cab of the vehicle, Inspector McPheeters determined that
injuries from a fire were reasonably likely to be serious. (Tr. 58:9–11.) The potential for the
vehicle operator to slip on the fluid and fall eight feet to the ground when evacuating in an
emergency compounded the potential for a serious injury. (Tr. 55:10–18.)

Campbell County contends that several factors mitigate the threat of a serious injury
posed by a fire in the vehicle’s cab. First, Respondent argues that a second point of egress
through the cab window increases a miner’s chances of escaping from a dangerous fire. (Resp’t
Br. at 13.) Respondent adds that the presence of a fire extinguisher also reduces the chances of a
fire causing serious injuries. (Id.) Finally, Campbell County argues that the rubber mat on the
floor reduces any risk of the operator slipping and falling. (Id.)

The evidence and the law do not support Respondent’s arguments. A second exit through
the cab window adds only a negligible degree of safety. A miner forced to scramble out the cab
window of his vehicle during a fire faces an increased risk of falling from the vehicle.
McPheeters already testified that the accumulation of hydraulic fluid increased the risk of a
potentially fatal fall from the vehicle cab. (Tr. 55:16–18, Tr. 129:19–130:4.) Next, the
Commission has consistently rejected the argument that extraneous safety measures such as the
front-end loader’s fire extinguisher reduce the likelihood of a serious injury. See Buck Creek,
52 F.3d at 136 (indicating that the fact a mine operator “has safety measures in place to deal with
a fire does not mean that fires do not pose a serious safety risk to miners”). Finally, while a
rubber mat may make the floor less slippery, McPheeters testified it would not prevent a fire, the
primary danger involved in this case. (Tr. 130:17–131:7.)

Given the evidence before me, I determine that the Secretary has satisfied his burden of
proving that reasonably serious injuries were reasonably likely to occur, thus satisfying Mathies’
third and fourth elements. Based on my above determinations, I therefore conclude that this
violation was appropriately designated as S&S.

c.         Negligence and Unwarrantable Failure

The Secretary designated this violation as an unwarrantable failure and characterizes
Campbell County’s negligence as high. In support of his allegations, the Secretary points to the
length of time Campbell County had knowledge of the leak’s existence. The Secretary further
emphasizes that Campbell County provided no evidence of mitigating circumstances during the
inspection or in the following closeout conference. (Sec’y Br. at 10–13.)

Looking to the aggravating factors in the unwarrantable failure determination, five of the
seven factors favor the Secretary’s unwarrantable failure allegation. First, the violative conditions
lasted for a long time. Respondent’s own witness testified that the hydraulic fluid accumulation
was present in the cab for at least two working days prior to the inspection, during which time the
front-end loader was in regular use. When a hazard is found to exist, it must be addressed. See
Buck Creek, 52 F.3d at 133 (finding unwarrantable failure where cited accumulation hazard must
have been present at least since the previous shift). Considering the ease with which the fluid
could be removed, allowing the combustible material to persist for two days exhibited a lack of
care. Furthermore, the front-end loader had a defect in the hydraulic system of its steering
column for approximately five months prior to the inspection on June 22, 2010. Over that period,
Campbell County’s safety director noted accumulations of hydraulic fluid in the loader’s cab at
least five times. Second, Campbell County had actual knowledge of the accumulation of
hydraulic fluid in the front-end loader’s cab. Third, Campbell County’s actual knowledge of the
violative conditions on June 22 and its repeated failure to repair the leak over the previous five
months put Respondent on notice that greater efforts were necessary to come into compliance
with the regulation. The Commission has indicated that a mine operator’s own safety reports can
serve to put the operator on notice that its existing abatement efforts are insufficient. See
Peabody Coal Co., 14 FMSHRC 1258, 1262 (1992) (holding that a mine’s preshift examination
books were “relevant in demonstrating that [the operator] had prior notice that a problem with
coal and coal dust accumulations existed in the cited area, and that greater efforts were necessary
to assure compliance. . . .”). Fourth, the extent of the violative condition was significant. The
leaked fluid had formed a six-inch puddle at the feet of the vehicle’s operator and was smeared
across the cab floor. As such, the hazard posed a high degree of danger to the vehicle operator,
which applies to the fifth factor. As I have already held, the violation was S&S and reasonably
likely to cause a fatal injury.

In its defense, Respondent first contends that the presence of a rubber mat on the cab
floor obscured the leakage. But the repeated incidences of the leaked hydraulic fluid in the
months leading up to the MSHA inspection put Campbell County on notice that it should be
extra vigilant in examinations of the front-end loader. Just as an apartment owner who covers his
leaking pipes with a rug gets no reprieve when the apartment below floods, Campbell County
merits no sympathy for having a mat covering the loader’s floor.

Finally, Respondent claims that its efforts to fix the leak by replacing seals on the
hydraulic lines should weigh against the Secretary’s allegations. Campbell County’s good
intentions garner it minimal credit. As the Commission has observed: “Good intentions [] and
good faith are not the same. Good faith requires vigilance about one’s responsibilities,
commitment to finding the resources to get the job done, and accountability for failure.”
Consolidation Coal Co., 22 FMSHRC 328, 332 (2000). Perhaps if this were the first or even the
second time that the hydraulic fluid leak had arisen, I would credit Respondent’s abatement
efforts. But the condition was noted no less than five times. Campbell County’s abatement efforts
amount to treating a bullet wound with a Band-Aid; at some point, the efforts must become
inadequate to any reasonable observer.

In light of Campbell County’s failure to address the leakage of combustible material in
the cab of the front loader, I conclude that the Secretary has met his burden of proving
unwarrantable failure.

Similarly, I conclude that the Secretary has demonstrated Campbell County’s level of
negligence to be high. See 30 C.F.R. § 100.3(d) at Table X (suggesting “high negligence” where
the “operator knew or should have known of the violative condition or practice, and there are no
mitigating circumstances.”) Here, Respondent knew of the hydraulic fluid leak yet dangerously
allowed violative conditions to remain in the cab. For at least two days, the miner operating the
loader faced potentially serious injuries from a known condition that Respondent failed to
address. Campbell County’s efforts to address the leakage repeatedly proved inadequate to fix the
problem, and thus do not mitigate Respondent’s negligence.

d.         Penalty

The Secretary proposed a $4,000.00 civil penalty for this violation. I have found that this
order was properly designated S&S. I also have found Campbell County’s negligence to be
“high” and its actions to amount to an unwarrantable failure. Under section 110(i) of the Mine
Act, I must consider six criteria in assessing a civil penalty: (1) the operator’s history of previous
violations; (2) the appropriateness of the penalty relative to the size of the operator’s business;
(3) the operator’s negligence; (4) the penalty’s effect on the operator’s ability to continue in
business; (5) the violation’s gravity; and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i).

In the two years prior to the MSHA inspectors’ visit on June 22, 2010, Campbell County
received approximately fifty citations or orders for violations of mandatory safety and health
standards. (Ex. P-1.) Considering that the County Quarry employs a modest four miners on site,
such a high number of violations is substantial. Nothing in the record suggests that the penalty
would impinge on Campbell County’s ability to remain in business. Moreover, Campbell County
was highly negligent in allowing the hydraulic fluid accumulation to persist, and the violation
exposed miners to a reasonable risk of fatal injuries. Nevertheless, I acknowledge the small size
of Campbell County’s mining operation and the operator’s rapid efforts to repair the front-end
loader after the June 22 inspection.

The Mine Act sets a minimum penalty of $4,000.00 for an order issued under section
104(d)(2). 30 U.S.C. § 820(a)(3)(B); see Stansley Mineral Resources, Inc., 35 FMSHRC 1177
(May 2013) (holding that Administrative Law Judge cannot reduce penalty below statutory
minimum set under 30 U.S.C. § 820(a)(3)(A) for analogous section 104(d)(1) violation).

Considering all of the facts and circumstances of this matter, I do not see that the
violation deserves a penalty beyond the statutory minimum. Accordingly, I affirm the Secretary’s
proposed penalty and assess the statutory minimum penalty of $4,000.00.

B.        Order No. 8542431: The Hammer Mill

1.         Further Findings of Fact

a.         Whether Work Took Place on the Elevated Walkway

Campbell County disputes at length the Secretary’s allegation that the walkway upon
which debris had accumulated was a workplace or the means of access to a workplace for the
purposes of section 56.11001. (Resp’t Br. at 7–10, Resp’t Reply at 2–5.) Campbell County
contends the only work performed on the elevated walkway is “clearing the catwalk of build-up,
which miners are required to do, per quarry rules, as they make their way to the de-activated
hammer mill to perform maintenance and repairs.” (Resp’t Br. at 9.)

The evidence does not support Respondent’s position that work did not take place on the
elevated walkway. In fact, Safety Director Franklin, testified that workers accessed the walkway
at least once a week to grease the machinery. (Tr. 161:9–11.) Indeed, Superintendent Potter
testified that the entire reason for installing the elevated walkway was to provide a safer means of
performing maintenance work on the hammer mill. (Tr. 229:1–10.) In addition to this regular
maintenance, miners accessed the walkway on a daily basis to perform necessary equipment
safety checks. (Tr. 196:9–11.) Workers also occasionally accessed the catwalk branching off of
the main walkway section. (Tr. 188:16–19.) Inspector McPheeters testified the walkway was a
work area because mine employees accessed it to perform regular maintenance on the hammer
mill. (Tr. 143:8–10.)   Indeed, the testimony of McPheeters, Franklin, and Potter is
uncontroverted.

All three witnesses agree that work is performed on the platform where the rock material
had accumulated. Based on the evidence before me, I find that work did take placed on the
elevated walkway on a daily basis.

b.         Whether the Rock Material Covered Accessible Parts of the Walkway

Campbell County also asserts that the area containing the accumulation of material
cannot constitute a working place or a means of access under the regulation because the
accumulation was confined to the small area underneath the overhanging feeder. (Resp’t Br.
at 9.) Respondent argues that the low clearance of the feeder makes traversing the area difficult,
and thus not a means of access. (Id.)

Once again, the evidence does not support Respondent’s argument. McPheeters testified
that the rock pile covered nearly four feet of the elevated walkway, leaving no way to navigate
past the rubble without traversing it. (Tr. 82:1–4.) In addition, the Secretary introduced into
evidence photographs showing the accumulated rocks spreading to the edge of the walkway and
completely blocking access to the catwalk. (Ex. P–5.) In the photograph, the debris spread well
beyond the shadow of the feeder. (Id.)

Based on this evidence, I find that the accumulation of rubble extended to an accessible
area of the walkway.

c.         The Duration of the Rock Spill’s Existence

Next, Respondent challenges the Secretary’s assertion that the ejected material had been
present on the walkway for approximately a week at the time of the inspection. (Resp’t Reply Br.
at 4.) At the hearing, Inspector McPheeters said the accumulation of debris along the walkway
was noted on June 16, 2010, six days prior to the MSHA inspection. (Tr. 79:16–21.) He also
speculated that the hammer mill would have to run for about a week to eject the amount of rock
found at the site. (Tr. 75:19–76:6.)

In contrast, Superintendent Potter testified that the hammer mill would eject the amount
of material present at the time of the inspection in merely two days. (Tr. 178:2–5.) Respondent
emphasizes that McPheeters did not find any notes identifying the accumulated rock in the
mine’s workplace examination reports subsequent to the initial June 16 notice. (Resp’t Reply Br.
at 4; Tr. 81:13–22.) Notably, however, Respondent presented no specific testimony that anyone
had cleaned the walkway in the time between the June 16 report and the inspection on June 22.
Respondent urges me to make the negative inference that because McPheeters did not note any
report of the debris accumulation subsequent to that of June 16, it therefore follows that
Campbell County cleared the violation. The evidence does not support such a conclusion.

I find that the inspector’s testimony is credible in that a regularly functioning hammer
mill could eject the amount of collected material in one week. Because Potter had greater specific
knowledge of the County Quarry’s hammer mill, I also find credible his testimony that the
hammer mill was functioning more poorly than McPheeters estimated. Furthermore, it is
uncontroverted that the design flaw allowing a mass of material to eject onto the elevated
walkway had been present for longer than a few days. (Tr. 170:22–172:11.)

Based on the evidence before me, I find that the rock spill had lasted at least two days.
Indeed, the defect in the hammer mill causing the material to eject onto the elevated walkway
likely existed since the hammer mill’s installation.

2.         Analysis and Conclusions of Law

a.         Violation of Section 56.11001

Inspector McPheeters issued Order No. 8542431 for Campbell County’s failure to clean
an accumulation of rock debris off the elevated walkway around the mine’s hammer mill. (Ex.
P–5.) To demonstrate a violation of 30 C.F.R. § 56.11001, the Secretary must prove by the
preponderance of the evidence that the operator (1) failed to provide or maintain (2) safe means
of access (3) to a working places.

I have already determined that work regularly took place on the elevated walkway and
that the expelled material covered the walkway where workers could walk. For the debris-covered section of the walkway to constitute means of access to a working area under section
56.11001, therefore, I need only find there was a reasonable possibility that a miner would access
that area. Hanna Mining, 3 FMSHRC at 2047.

Here, the rubble was directly adjacent to access points to grease the hammer mill.
Furthermore, a worker would have to traverse the material to reach the catwalk for equipment
examinations. Thus I determine it is reasonable to believe a miner would have reason to walk
across the walkway covered in debris to perform work.

Based on the evidence before me, I
conclude that the walkway around the hammer mill was a working area. The Secretary has
therefore satisfied the second and third elements necessary to show a violation of the regulation.

As there is no question that Campbell County provided safe access to the hammer mill by
constructing the walkway,

the case turns on whether Campbell County maintained the walkway
in a reasonably prudent manner.

At the hearing, Inspector McPheeters testified that accumulation of material presented a
distinct trip-and-fall hazard to miners working on the walkway, and that no amount of ejected
material would be safe. (Tr. 78:10–11, 77:4–8.) He also explained that the reasonably prudent
course of action for the mine would be to repair the hammer mill to prevent the escape of
material onto the elevated walkway. (Tr. 77:15–19.) In contrast, Campbell County claims that the
ejection of material is a natural function of the hammer mill and that the Secretary’s demands
would require the mine to shut down the hammer mill several times per day to clean the
accumulated debris. (Resp’t Br. at 14; Tr. 178:5–9.)

Respondent’s argument again is inapposite. By their nature, safety regulations may
impede mining operations to ensure that workers are safe. In passing the Mine Act, Congress
prioritized worker safety over mine output. In allowing the rock debris to accumulate around the
hammer mill for days at a time, Campbell County prioritized output above the safety of its
workers. At the very least, reasonable prudence would require the operator to clean up the debris
on a daily basis to protect miners performing the daily workplace inspections. It is unclear from
the record how daily cleaning would require the operator to alter the hammer mill’s operating
schedule. By Superintendent Potter’s own admission, the ejected rock took at least two days to
accumulate. Thus, Campbell County did not even reach the low bar of daily cleaning. I find
McPheeters’s testimony credible, and I determine that a mine’s reasonable response to the
continual ejection of material would be to modify the hammer mill to prevent the debris from
spilling out. Campbell County eventually did exactly this, but only when faced with a work
closure order from MSHA. (Tr. 169:2–13.)

Consequently, I determine that the Secretary has satisfied all three elements to show a
violation of section 56.11001. The area around the hammer mill was a working place as defined
in the regulation, and the elevated walkway was a means of access to that working place.
Campbell County therefore had a duty to maintain the walkway in a reasonably safe manner.
Campbell County failed in this duty by allowing the accumulation of rock material that created a
risk of tripping and falling.

b.         Gravity and S&S Determination        

Campbell County’s violation of section 56.11001 establishes the first element of the
Mathies test for an S&S violation. Second, I must assess whether the violation contributed to a
discrete safety hazard. Inspector McPheeters credibly testified that the debris on the walkway
threatened to trip a miner traversing the area. (Tr. 78:10–11.) McPheeters judged that the
material, which included fist-sized rocks, was six to twelve inches high. (Tr. 73:21–22.) I find his
testimony credible, and determine that the loose rubble in the middle of a walkway presented a
discrete risk of causing a worker to fall and suffer injury.

Next, I must determine whether the safety hazard is reasonably likely to contribute to an
injury. In support of its assertion that the rubble pile would reasonably likely result in injury, the
Secretary points to the size of the rock pile and the regularity with which miners accessed the
walkway to perform maintenance and daily workplace examinations. (Sec’y Br. at 19.) Campbell
County, on the other hand, emphasizes the low frequency with which miners access the hammer
mill and the mine’s efforts to limit access to the mill by chaining off walkway entrances while
the mill is operational. (Resp’t Br. at 13–14.) Campbell County also claims that the overhanging
feeder belt forces miners in the area to move slowly, further reducing the risk of an injury
occurring. Again, the evidence does not support Respondent’s argument. The debris pile covered
the entire width of the walkway in parts. A miner performing workplace evaluations would be
forced to traverse the pile of rocks on a daily basis. I determine that a miner traversing the rock
accumulation regularly could reasonably be expected to trip and fall, resulting in injury.

Finally, I must determine whether the injury caused would likely be serious. The
Secretary claims the injuries in this instance are reasonably likely to be permanently disabling.
(Sec’y Br. at 19.) McPheeters testified that the resulting fall from tripping on the walkway could
result in a damaged back, broken bones, torn tendons, or a head injury. Respondent contends
that, because a railing enclosed the walkway and because the overhanging feeder prevented
workers from moving quickly through the area, any injuries resulting from a fall likely would be
minor. In addition, Respondent suggests that a trip and fall hazard is insufficient to support a
designation of S&S without the presence of aggravating circumstances.

(Resp’t Br. at 14.)

Looking at the evidence, I am convinced that the injury likely to result from a fall on the
walkway would not be permanently disabling. Given the presence of the railing and the fact that
miners did not access the walkway while the hammer mill was operational, the injuries resulting
from a fall on the platform likely would be limited in severity. In this context, the kind of injuries
McPheeters describes are more likely to cause lost work time than to be permanently disabling.
Accordingly, I reduce the type of injury in Order No. 8542431 from “permanently disabling” to
“lost workdays or restricted duty”

Nevertheless, the Commission has consistently recognized that muscle strains, sprained
ligaments and tendons, and broken bones are injuries of a sufficiently serious nature to support
an S&S designation. S & S Dredging Co., 35 FMSHRC 1979, 1981 (July 2013) (overturning a
judge’s ruling that muscle strains were insufficient to underpin an S&S designation); see, e.g.,
Maple Creek Mining, Inc., 27 FMSHRC 555, 562–63 (Aug. 2005) (affirming Judge’s conclusion
that serious injuries such as a leg or back injury would arise from the failure to maintain an
escapeway in a safe condition); Buffalo Crushed Stone Inc., 19 FMSHRC 231, 238 n.9 (Feb.
1997) (concluding that slipping on a walkway would result in reasonably serious injuries such as
a finger or a wrist fracture); Southern Ohio Coal Co., 13 FMSHRC 912, 918 (June 1991)
(affirming Judge’s conclusion that a trip and fall would result in reasonably serious injuries such
as “sprains, strains, or fractures”).

Given the evidence before me, I determine that the Secretary has met his burden of
proving that reasonably serious injuries were reasonably likely to occur, thus satisfying the fourth
element of Mathies. Based on my above determinations, I therefore conclude that this violation
was appropriately designated as S&S.

c.         Negligence and Unwarrantable Failure

The Secretary designated this violation as an unwarrantable failure, characterizing
Campbell County’s negligence as high. In support of this allegation, the Secretary points to the
obvious nature of the risk and the length of time the problem existed. (Sec’y Br. at 23.) In
response, Campbell County asserts that its efforts to limit access to the walkway during operation
and its policy of cleaning the walkway whenever work must be performed in the area mitigate the
operator’s negligence. (Resp’t Reply Br. at 8.)

Each of the Commission’s unwarrantable failure factors suggests Respondent’s conduct
was aggravated. First, the extent of the violation was significant, spreading across half the length
of the eight-foot walkway and covering nearly the entire width of the walkway, as well as the
platform directly under the feeder. Second, Campbell County’s own safety inspections put the
operator on notice regarding the need to clean the accumulating debris. Furthermore, Respondent
had been cited for violations of section 56.11001 four times in the two years prior to the order in
question, so it was well aware of the requirements of the regulation. (Tr. 84:7–14.) Third, the
operator did not provide any evidence of specific efforts it had made to prevent the material from
collecting, other than the assertion that miners servicing the hammer mill were told to grab both
grease and a shovel to clear their way. Indeed, Campbell County did not clear the rock piles on
even a daily basis and instead apparently adopted a policy of allowing the material to collect for
days at a time. Fourth, the violation was obvious, accumulating quickly and spreading across the
breadth of the walkway. Furthermore, the material was ejected in the direct line of site of the
machine’s operator. Because of the rapidity with which the hammer mill expelled material, the
operator either knew or should have known of the existence of the accumulated debris on June

22. Sixth, as I determined above, the trip-and-fall hazard was dangerous because it could result in
    broken bones, torn tendons, or a head or back injury.

In response, Campbell County suggests its negligence is mitigated because the debris
accumulation took place over two days instead of the inspector’s estimated week. (Resp’t Reply
Br. at 4.) Respondent’s argument is unsupported. It defies logic to suggest that the operator
should be granted leniency because the machine creating a hazard functioned worse than the
inspector believed when he found the violation. In light of the obviousness of the violation and
the significant degree of danger, leaving the material on the walkway for two days is aggravated
conduct. Cf. Midwest Material Co., 19 FMSHRC 30, 32–37 (Jan. 1997) (finding unwarrantable
failure for extremely unsafe violation that lasted only minutes).

Campbell County next argues that its negligence is mitigated because the hammer mill
was operating within its design parameters. (Resp’t Br. at 14.) Respondent’s reliance on the
hammer mill’s safety manual is misplaced. The manual warns of the danger of ejected material
and explicitly states that alterations may be necessary to conform to federal and state safety
regulations. (Ex. R–3.)

Similarly, Campbell County Highway Superintendent Potters testified expansively on the
pristine safety record the County Quarry enjoys. While it may be true that Campbell County has a
commendable record of injury-free operations, MSHA does not need an injury to find a violation
of a mandatory health or safety standard. The Mine Act is a strict liability statute. Western
Fuels-Utah, Inc. v. FMSHRC, 870 F.2d 711, 716 (D.C. Cir. 1989).

In light of these factors, I find that the Secretary has met his burden of showing that
Respondent’s conduct was aggravated, amounting to an unwarrantable failure.

Likewise, I determine Campbell County’s negligence to be high. See 30 C.F.R. § 100.3(d)
at Table X (suggesting “high negligence” where the “operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.”). Again, the violative
conditions were readily apparent and exposed Campbell County’s miners to significant injuries.
Rather than clearing the walkway, however, Campbell County chose to continue operating the
hammer mill.

d.         Penalty

The Secretary also proposed a $4,000.00 civil penalty for this violation. Again, I have
found that this order was properly designated S&S. I have also found Campbell County’s
negligence to be “high” and its actions to amount to an unwarrantable failure.

Turning to the relevant factors for assessing a penalty, I again note the mine’s history of
violations. The record does not show that the Secretary’s proposed penalty would impinge on
Campbell County’s ability to remain in business, but I note that the County Quarry is a small
mining operation. Campbell County’s negligence in allowing the debris accumulation was high,
but the hazard posed only the risk of lost workdays or restricted duty. Finally, Campbell County
swiftly made adjustments to the hammer mill after the MSHA inspection to prevent future debris
accumulations.

The evidence does not support a penalty above the Secretary’s proposed penalty, which is
the statutory minimum penalty allowed for an order issued under section 104(d)(2). 30 U.S.C.
§ 820(a)(3)(B); see Stansley Mineral Resources, 35 FMSHRC at 1177. Accordingly, I hereby
assess a civil penalty of $4,000.00 for this violation.

VI. ORDER

In light of the foregoing, it is hereby ORDERED that Order No. 8542424 is
AFFIRMED. It is further ORDERED that Order No. 8542431 be MODIFIED by changing the
type of injury from “permanently disabling” to “lost workdays or restricted duty.”

WHEREFORE, Respondent is ORDERED to pay a penalty of $8,000.00 within 40 days
of this decision.  

/s/ Alan G. Paez

Alan G. Paez

Administrative Law Judge

Distribution:

Leslie P. Brody, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, S.W.,
Room 7T10, Atlanta, GA 30303

Christian Barber, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue
North, Suite 420, Nashville, TN 37219-1823

Charles W. Kite, Esq., 9925 Tierra Verde Drive, Knoxville, TN 37922

/lct