Secretary of Labor v. N.J. Wilbanks Contractor, Inc. (ALJ decision, December 15, 2017)

Read the official release (fmshrc.gov)

Plain-English summary

N.J. Wilbanks used three Caterpillar scrapers whose pedal-operated service brakes had not worked since the machines arrived at a future quarry site. The company argued that MSHA lacked jurisdiction before mineral production began and that operators could stop the machines by lowering their bowls. Judge L. Zane Gill held that the site was already a mine because it was being prepared for future extraction and that lowering a bowl was not a substitute for the installed service-brake system required by 30 C.F.R. § 56.14101(a)(1). He affirmed all three violations as S&S and unwarrantable failures, but reduced gravity from highly likely to reasonably likely and negligence from reckless disregard to high. Based on those modifications, the company's small size, its limited violation history, and good-faith abatement, he reduced the proposed $79,800 total penalty to $6,000.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14101(a)(1)
• Outcome: Three violations were affirmed as S&S and unwarrantable failures, gravity and negligence were reduced, and total penalties were cut from $79,800 to $6,000.
• Key point: A quarry site can fall under MSHA jurisdiction while being prepared for mining, and an equipment attachment is not a substitute for the manufacturer's service-brake system.

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:

202-434-9900 / FAX: 202-434-9949

SECRETARY

OF LABOR

MINE

SAFETY AND HEALTH   

ADMINISTRATION

(MSHA),

Petitioner,

v.

N.J.

WILBANKS CONTRACTOR, INC.,

Respondent.

CIVIL

PENALTY PROCEEDING

Docket

No. SE 2012-275-M

A.C.

No. 09-01204-278900 (W276)

Mine:

Warren County Quarry

DECISION AND

ORDER

Appearances:               Jean

C. Abreu, Esq., Shelly Anand, Esq., and Sophia Haynes, Esq., U.S. Department of

Labor, Office of the Solicitor, Atlanta, Georgia, for Petitioner;

Douglas

Flint, Esq., and Kristyn Atkinson, Esq., Flint, Connolly & Walker, LLP, for

Respondent.

Before:                                    Judge

L. Zane Gill

This

proceeding is before me upon the Petition

for the Assessment of Civil Penalty filed by the Secretary of Labor

(“Secretary”) pursuant to section 105 of the Federal Mine Safety and Health Act

of 1977 (“Mine Act” or “Act”), 30 U.S.C. § 815. This case

involves one section 104(d)(1) citation and two section 104(d)(1) orders issued

by the Secretary to Respondent N.J. Wilbanks Contractor, Inc. (“N.J. Wilbanks”).

I.  STATEMENT OF

THE CASE

On

August 25, 2010, the Secretary issued Citation No. 8546331 and Order Nos.

8546333 and 8546335 following MSHA’s investigation into a hazard complaint lodged

against N.J. Wilbanks. Citation No. 8546331 and Order Nos. 8546333 and 8546335 each

allege a violation of 30 C.F.R. § 56.14101(a)(1) for failing to have a

functioning service brake system on three separate Caterpillar 631E scrapers. [1]

The Secretary proposed a specially-assessed penalty of $26,600.00 for each

violation for a total combined proposed penalty of $79,800.00.

On

April 15, 2016, the Secretary filed a Motion for Adverse Inference and

Exclusion of Testimony Due to Respondent’s Spoliation of Evidence. (Mot. at

1–14) The Secretary alleges that Respondent failed to produce and possibly

destroyed inspection logs noting the condition of the mobile equipment involved

in this matter. ( Id. at 2) The Secretary states that the company’s

superintendent showed the inspection logs to MSHA Inspector Raymond Dubics at

the time of the inspection. ( Id. at 3) The Secretary requests that an

adverse inference be drawn against Respondent with respect to the content of

the inspection logs and that any testimony from Respondent’s witnesses

regarding the condition of the mobile equipment on or before the date of the

inspection be excluded from the record. ( Id. at 4) Respondent offered

its response to the motion at hearing, asserting that Respondent was unaware of

the existence of such logs, that the Secretary delayed in requesting these

logs, and that the adverse inference requested by the Secretary would actually support

Respondent’s case. (Tr. 14:8–16:9) At hearing, I informed the parties that I

would issue my ruling on the motion with the decision. (Tr. 22:8–24:15) For the

reasons provided below, the Secretary’s motion is DENIED . [2]

I held a hearing on April 19, 2016, in

Atlanta, Georgia. The Secretary presented testimony from N.J. Wilbanks

President Chris Wilbanks and MSHA Inspector Raymond Dubics. Respondent

presented testimony from Chris Wilbanks and former N.J. Wilbanks Project

Manager Justin Crowe. The parties each submitted post-hearing briefs and reply

briefs.

II.  ISSUES

For

each of the three violations, the Secretary asserts that N.J. Wilbanks violated

30 C.F.R. § 56.14101(a)(1) by failing to have functioning service brakes on

three Caterpillar 631E scrapers. (Sec’y Br. at 10–11)­ The Secretary asserts

that the violations were significant and substantial (“S&S”), inasmuch as

they were highly likely to result in a fatality, and a result of the operator’s

reckless disregard and unwarrantable failure. ( Id. at 12–17) In

contrast, Respondent argues that the work site where MSHA issued the violations

was not subject to MSHA’s jurisdiction. (Resp’t Br. at 8–11) Respondent further

asserts that the scrapers were equipped with functioning brakes and challenges

the Secretary’s negligence and gravity determinations. ( Id. at 3–8, 12–15)

Accordingly,

the following issues are before me: (1) whether MSHA had jurisdiction over the

work site where MSHA cited N.J. Wilbanks; (2) whether N.J. Wilbanks violated 30

C.F.R. § 56.14101(a)(1) as alleged in Citation No. 8546331 and Order Nos.

8546333 and 8546335; (3) whether the Secretary’s gravity determinations are

properly designated for the three violations, including the S&S

designations; (4) whether Respondent’s negligence for the violations is

properly designated as “reckless disregard” and constitutes an unwarrantable

failure; and, (5) whether the proposed penalties are appropriate.

III.  FACTUAL

BACKGROUND

A.        N.J.

Wilbank’s Work at APAC Mid-South Project

On June 21, 2010, N.J. Wilbanks entered

into a subcontract with general contractor Brasfield & Gorrie to perform

site development work at a site owned by APAC Mid-South in Camak, Georgia. (Tr.

41:12–20, 44:15–45:9; Ex. S–3) The project was listed as the “APAC Plantation

Quarry” project per Brasfield & Gorrie’s contract with N.J. Wilbanks. (Ex.

S–3) The location, now known as Warren County Quarry, [3]

would eventually be used to extract and process granite. (Tr. 64:20–65:18) Hence,

owner APAC Mid-South was issued a state surface mining permit on December 15,

2009, and an MSHA Identification Number on August 25, 2010, for the site. (Exs.

S–4, S–5)

N.J. Wilbanks commenced work at the

Warren County Quarry site on August 15, 2010. (Tr. 45:10–21; Ex. S–3) The

contracted project involved N.J. Wilbanks performing tasks such as site

grading, drilling and blasting rock, and constructing dams, as well as laying

down belt structures, crushers, and shakers, and hauling clean rock to

designated locations. (Tr. 65:1–18; Ex. S–3) The work took approximately two

years to complete. (Tr. 171:6–8)

B.        MSHA

Inspection: August 25, 2010

In August 2010, MSHA received a telephone

complaint alleging several safety issues at the Warren County Quarry, including

a broken air conditioner, defective equipment brakes, document falsification,

and inadequate employee training. (Tr. 54:21–55:11) MSHA assigned Inspector

Raymond Dubics to investigate the allegations. (Tr. 55:19–24) Dubics traveled

to the mine on August 25, 2010, to perform an inspection and found

subcontractor N.J. Wilbanks working on the property. (Tr. 55:19–56:9; Exs. S–7,

S–8, S–9, S–10) Upon arriving at the site, Dubics asked for a supervisor and

was directed to plant supervisor Steve Bishop. (Tr. 56:10–24)

Dubics explained to Bishop that MSHA

received a hazard complaint and would need to inspect the site. (Tr. 57:2–12) Dubics

then traveled with Bishop around the site and observed some equipment moving

dirt in addition to foot traffic in the area. (Tr. 57:10–64:19; Ex. S–6) Dubics

asked Bishop about their activities at the site and testified that Bishop

explained that N.J. Wilbanks was building a plant to be used for mining and

processing granite, which would go into operation approximately three years

later. (Tr. 64:20–65:18)

Dubics informed Bishop that he needed to

test the brakes on the site’s mobile equipment. (Tr. 57:5–6) Bishop allowed, but

informed Dubics beforehand that he would find that the brakes on some of the

equipment did not work. (Tr. 65:19–22, 66:3–5) Dubics tested all the mobile

equipment on site in a slightly downhill gully, which Dubics estimated to be at

a one percent grade. (Tr. 66:6–16, 68:3–23) The rest of the work site was

relatively flat. (Tr.

127:21–25, 202:3–5; Ex. S–6) Dubics tested the mobile equipment empty because he

was told the brakes did not work and did not want to create an additional

hazard by adding a load. (Tr. 66:17–24) To conduct the tests, Dubics asked each

equipment operator to apply the equipment’s brakes at the top of the gully to

see if the brakes would hold the equipment on the grade. (Tr. 66:8–13)

One type of

mobile equipment Dubics tested was the Caterpillar 631E scraper. (Tr. 67:1–14;

Ex. S–7) N.J. Wilbanks used Caterpillar 631E scrapers to perform cut and fill operations

on the land. (Tr. 171:18–23) A scraper (also called a “blade”) works by moving

forward and scraping dirt inside its bowl. (Tr. 172:1–173:5) The scraper’s gate

is then closed, and the bowl is raised to a leveled position. (Tr. 173:6­–25) The

gate is then opened, and the dirt is dropped and raked out. (Tr. 174:1–175:5) A

scraper can weigh anywhere from 15 to 35 tons and typically travels at a speed

of approximately six to eight miles per hour. (Tr. 80:14–81:5, 82:21–23, 176:4–7)

Because of their weight, scrapers must be pushed by dozers to have enough power

to move the dirt. (Tr. 175:14–176:16)

Caterpillar 631E

scrapers are equipped with pedal brakes. (Tr. 129:24–130:3, 131:5–13, 177:12­–14)

The scrapers also come to a stop when the scraper’s bowl contacts the ground. (Tr.

175:6–8) Project manager, Justin Crowe, and N.J. Wilbanks President,

Chris Wilbanks, testified that pedal brakes are not strong enough to stop scrapers

carrying a load and that the only way to brake in those cases would be to drop

the bowl. (Tr. 183:16–20, 225:21–226:2) Crowe testified that pedal brakes would

only be used in limited situations, such as loading them onto trailers, moving

them around a yard, spotting them, or washing them. (Tr. 177:17–22, 183:8–15)

Dubics first tested scraper Unit 109. (Tr.

66:25–70:1) Prior to the test, the unit’s operator informed Dubics that the

scraper’s pedal brakes did not function. (Tr. 67:3–11) Dubics asked the unit’s

operator to demonstrate and observed for himself that the equipment did not

stop when the operator depressed the foot pedal. (Tr. 67:7–11) Dubics asked the

equipment operator how long the brakes had not been working and whether they

had been reported. (Tr. 69:5–10) The equipment operator told Dubics that the

pedal brake had never worked during the time the equipment operator used the

machine. (Tr. 69:7–10) Dubics then told Bishop that Unit 109 had to be tagged

out of service. (Tr. 69:16–70:1)

Dubics also tested scraper Unit 110. (Tr.

70:2–4) When the unit’s operator pulled up and dropped the bowl to stop the

scraper, Dubics explained to him that he needed to check the scraper’s pedal

brake. (Tr. 70:7–12) The equipment operator told Dubics that the pedal brakes

had not worked for two weeks, which the equipment operator had reported to

Bishop personally and recorded on a pre-shift examination. (Tr. 70:11–18) Dubics

testified that the equipment operator marked “NA” for no action on the

pre-shift examination because the equipment operator had informed the company

about the brakes before and the company took no action to repair them. (Tr. 70:19–71:3)

Dubics had the equipment operator test the pedal brakes, which did not work. (Tr.

72:17–22) Dubics told N.J. Wilbanks that the scraper needed to be taken out of

service and allowed the operator to drive the scraper out of the way and tag it

out of service. (Tr. 71:4–9)

Lastly, Dubics tested scraper Unit 117. (Tr.

71:10–15) Similar to the other two tests, the pedal brakes on the scraper did

not function and the equipment only stopped when the unit’s operator dropped

the scraper’s bowl. (Tr. 71:17–22, 72:12–16) The unit’s operator informed

Dubics that he did not report the brakes in a pre-shift examination because it

was his first day on the job. (Tr. 71:21–25) Dubics testified that the unit’s

operator told him that the company was teaching him to drive the scraper with

no pedal brakes, which Bishop confirmed. (Tr. 71:25–72:11) Dubics then had Unit

117 tagged out of service as well. (Tr. 72:25–73:2)

As a result of the tests, Dubics issued

three imminent danger orders on August 25, 2010, to N.J. Wilbanks, stating that

the company was operating the three scraper units without service brakes and

placing them out of service until the company made the proper repairs. [4]

(Tr. 73:2–74:9; Ex. S–7)

In addition, Dubics issued Citation No.

8546331 and Order Nos. 8546333 [5]

and 8546335, separately alleging that the brakes on scraper Units 109, 110, and

117, respectively, “would not stop the scrapper [sic] on the normal grade

traveled empty,” in violation of 30 C.F.R. § 56.14101(a)(1). (Tr.

77:14–92:2; Exs. S–8, S–9, S–10) Dubics designated each of the three violations

as “S&S” and “reasonably likely” to result in a “fatal injury” to “one

miner.” ( Id. ) The following day, on August 26, 2010, he modified the likelihood

of injury for each of the violations to “highly likely.” (Tr. 81:13–82:7, 87:17–21,

91:8–12; Exs. S–8, S–9, S–10) Dubics also modified the violations to classify

each as an “unwarrantable failure” on August 26, 2010. (Exs. S–8, S–9, S–10) Dubics

originally designated each of the three violations as a result of the company’s

“high negligence,” but approximately one month later, on September 16, 2010, modified

the violations to increase the level of negligence to “reckless disregard.” (Exs.

S–8, S–9, S–10; Tr. 91:22–92:2) Dubics modified the violations’ negligence

designations after returning to his office and reviewing the violations with

his supervisor. (Tr. 138:4–141:4)

N.J. Wilbanks

abated Citation No. 8546331 and Order Nos. 8546333 by removing scraper Units

109 and 110 from the work site. (Exs. S–8, S–9) N.J. Wilbanks abated Order. No.

8546335 by repairing the brakes on Unit 117, which stopped the unit on the

steepest grade at the work site when re-tested. (Ex. S–10) N.J. Wilbanks also

had its supervisor reinstruct each scraper unit’s operator on proper pre-shift

examinations for mobile equipment. (Exs. S–8, S–9, S–10) Consequently, Dubics

terminated each of the violations. ( Id. )

IV.  LEGAL

PRINCIPLES

A.        Mine

Act Jurisdiction

Section 4 of the Mine Act provides,

in part, that “[e]ach coal or other mine, the products of which enter commerce

. . . shall be subject to the provisions of this Act.” 30

U.S.C. § 803. Section 3(h)(1) of the Act defines “coal or other mine”

to include “ lands,

excavations, underground passageways, shafts, slopes, tunnels and workings,

structures, facilities, equipment, machines, tools, or other property . . .

used in, or to be used in , or resulting from, the work of extracting

such minerals from their natural deposits in non-liquid form . . . or used in, or

to be used in , the milling of such minerals[.]” 30 U.S.C.

§ 802(h)(1) (emphasis added).

Section 4 unambiguously

expresses Congress’ intent to regulate the mining industry to the full extent

under the Commerce Clause, which includes the power to regulate mines whose

products are sold entirely intrastate. D.A.S. Sand & Gravel, Inc. v.

Chao , 386 F.3d 460, 464 (2d Cir. 2004). In the legislative history of the

Act, Congress instructed “that what is considered to be a mine and to be

regulated under this Act be given broadest possibl[e] interpretation” and that “doubts

be resolved in favor of . . . coverage of the Act.” S. Rep. No. 95-181, at 14

(1977).

B.        Significant

and Substantial

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 a 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 recently explained

that in analyzing the second Mathies element, Commission Judges must

determine “whether, based upon the particular facts surrounding the violation,

there exists a reasonable likelihood of the occurrence of the hazard against

which the mandatory safety standard is directed.” Newtown Energy, Inc. ,

38 FMSHRC 2033, 2038 (Aug. 2016). In evaluating the third Mathies

element, the Commission assumes the hazard identified in the second Mathies

element exists and determines whether that hazard is reasonably likely to cause

injury. Id. at 2045 (citing Knox Creek Coal Corp. v. Sec’y of Labor ,

811 F.3d 148, 161–62 (4th Cir. 2016); Peabody Midwest Mining, LLC , 762

F.3d 611, 616 (7th Cir. 2014); Buck Creek Coal , 52 F.3d at 135). The

Commission has specified that evaluation of the reasonable likelihood of injury

should be made assuming continued normal 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)). Finally, it is well settled that

redundant safety measures are not to be considered in determining whether a

violation is S&S. Cumberland Coal Res. LP , 717 F.3d at 1029 (D.C.

Cir. 2013); Knox Creek Coal Corp. , 811 F.3d 148, 162 (4th Cir. 2016); Buck

Creek , 52 F.3d at 135; Brody Mining, LLC , 37 FMSHRC 1687, 1691 (Aug.

2015); Cumberland Coal Res., LP , 33 FMSHRC 2357, 2369 (Oct. 2011).

C.        Negligence

The Commission evaluates negligence

using “a traditional negligence analysis.” Am. Coal Co. , 39 FMSHRC 8, 14

(Jan. 2017) (quoting Mach Mining, LLC v. Sec’y of Labor , 809 F.3d 1259,

1264 (D.C. Cir. 2016) (citation omitted)). Because the Commission is not bound

by the Secretary’s regulations set forth in 30 C.F.R. Part 100, the

Commission and its Judges are not required to consider the negligence

definitions in 30 C.F.R. § 100.3(d). Id. (citing Mach Mining, LLC ,

809 F.3d at 1263–64). Under a traditional negligence analysis, an operator is

negligent if it fails to meet the requisite standard of care. Brody Mining,

LLC , 37 FMSHRC 1687, 1702 (Aug. 2015). In determining whether an operator

met its duty of care, the Commission considers what actions would have been

taken under the same circumstances by a reasonably prudent person familiar with

the mining industry, the relevant facts, and the protective purpose of the regulation.

Id. at 1702 (citation omitted). In making a negligence determination, a

Judge is not limited to an evaluation of allegedly “mitigating” circumstances,

but may consider the totality of the circumstances holistically and thus find “high negligence” in spite of mitigating

circumstances or “moderate” negligence without identifying mitigating

circumstances. Id. In this respect, the Commission has recognized that

the gravamen of high negligence is that it “suggests an aggravated lack of care

that is more than ordinary negligence.” Topper Coal Co. , 20 FMSHRC

344, 350 (Apr. 1998) (citation omitted).

The

Commission has not opined specifically as to what constitutes “reckless

disregard.” However, Commission judges have noted that the term “reckless”

describes conduct characterized by “the creation of a

substantial and unjustifiable risk of harm to others and by a conscious (and

sometimes deliberate) disregard for or indifference to that risk[.]” Stillhouse

Mining, LLC , 33 FMSHRC 778, 803 (Mar. 2011) (ALJ) (citing Reckless , Black’s

Law Dictionary (8th ed. 2004)). “Deliberate action contrary to the Mine Act

with the conscious knowledge that such activity may seriously endanger worker

constitutes reckless disregard.” Winn Materials LLC , 36 FMSHRC 1430,

1435 (May 2014) (ALJ) (citing Roxcoal, Inc. , 36 FMSHRC 625,

634 (ALJ) (Mar. 2013)).

D.        Unwarrantable

Failure

The Commission has held

that an unwarrantable  failure

is aggravated conduct constituting more than ordinary negligence. Emery

Mining Corp. , 9 FMSHRC 1997, 2004 (Dec. 1987). It is characterized by “indifference,”

a “serious lack of reasonable care,” or “reckless disregard.” Id.  at

2003 – 04;  see also Buck Creek

Coal , 52 F.3d at 136 (7th Cir. 1995) (approving the Commission’s  unwarrantable  failure test). 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. IO

Coal Co. , 31 FMSHRC 1346, 1350 – 51 (Dec.

2009). The Commission has identified several such factors, including: the

length of time a violation has existed, the extent of the violative condition,

whether the operator has been placed on notice that greater efforts are

necessary for compliance, the operator’s efforts in abating the violative

condition, whether the violation was obvious, whether the violation posed a

high degree of danger, and the operator’s knowledge of the existence of the violation.

Id. Because supervisors are held to a high standard of care, another

important factor supporting an unwarrantable failure determination is the

involvement of a supervisor in the violation. Lopke Quarries, Inc. , 23

FMSHRC 705, 711 (July 2001) (citing REB Enters., Inc. , 20 FMSHRC

203, 225 (Mar. 1998)). All relevant facts and circumstances of each case

must be examined to determine whether an actor’s conduct is aggravated or if

mitigating circumstances exist. Consolidation Coal Co. , 22 FMSHRC 340,

353 (Mar. 2000).

V.  ANALYSIS AND

CONCLUSIONS OF LAW

A.        Mine

Act Jurisdiction

Respondent

asserts that MSHA did not have jurisdiction over the work site where Dubics

issued the disputed violations and that the company lacked fair notice that

MSHA would exert jurisdiction. (Resp’t Br. at 8–11) Respondent reasons that the

work site was not yet a mine at the time of the violations and that the company

had not yet been given an MSHA ID number at the time of inspection. ( Id. )

In contrast, the Secretary maintains that the work site falls within the Mine

Act’s definition of “mine” and that N.J. Wilbanks did have fair notice that it

would be subject to MSHA’s jurisdiction based on the contract the company

signed. (Sec’y Br. at 8–10)

Here, N.J. Wilbanks entered into a

subcontract to perform site development work for a project identified as “APAC

Plantation Quarry.” (Ex. S–3) The quarry would be used to extract and process

granite. (Tr. 64:20–65:18) N.J. Wilbanks’ contract stated that its work on the

site included tasks such as “blasting in pit area,” “delivery of all clean rock

to the portable crusher” that would be set up, and “adherence to MSHA

regulations.” (Ex S–3) N.J. Wilbanks’ current president, who signed the

subcontract, also testified that per the contract, the company knew MSHA

regulations would “come [in]to play at some point in time.” (Tr. 230:22–231:4,

73:20–22; Ex. S–3) However, the company was under the impression that MSHA

regulations would not apply to every stage of the project, but only after the

date when crushing operations began on site. (Tr. 193:10–195:4, 209:3–210:5) General

contractor Brasfield & Gorrie told N.J. Wilbanks that the date would be in

early November 2010, and thus, N.J. Wilbanks assumed that the work site fell

under OSHA’s jurisdiction until that date. (Tr. 195:19–196:23)

The Mine Act defines “mine” as any land

or property “used in, or to be used in . . . extracting such

minerals from their natural deposits[.]” 30 U.S.C. § 802(h)(1) (emphasis

added). Considering Congress’s intent that the statute be interpreted broadly

in favor of MSHA jurisdiction, courts have held that the “to be used in”

language would include properties that are not yet producing mine products, but

are preparing to begin production. See Cyprus Indus. Minerals Co. v. Fed. Mine Safety

& Health Admin. ,

664 F.2d 1116, 1117–20 (9th Cir. 1981) (holding that activities conducted in

preparation for future mining may bring a site within the definition of a

“mine” if the activities were in contemplation of mining); see also

Lancashire Coal Co. v. Sec’y of Labor , 968 F.2d 388, 390 (3d Cir. 1992)

(recognizing that the Mine Act refers to three time frames in section 3(h),

including the term “to be used in” meaning contemplated use).

Despite Respondent’s arguments, the

terms of N.J. Wilbank’s contract explicitly gave notice from the project’s

onset that the subject work site would be a “quarry” and used in mineral

extraction, thus falling squarely into the statutory definition of a “mine”

subject to MSHA’s jurisdiction. Respondent had knowledge that its activities on

site were conducted in contemplation of future mining. Thus, Respondent’s

mistaken belief that MSHA’s jurisdiction would not apply to every stage of the

project is not reasonable given that the plain language of the statute clearly

and unambiguously encompasses any property to be used in mineral extraction,

even when such mineral extraction has not commenced. Moreover, N.J. Wilbanks

had received an MSHA ID in 2008 for work at another quarry and therefore should

have known the extent of MSHA’s jurisdiction permitted by statute given this

prior experience. (Tr. 241:8–242:9; Ex. S–5)

Because the statute must be interpreted

broadly in favor of the Mine Act’s jurisdiction, I conclude that MSHA had

jurisdiction over the site where N.J. Wilbanks performed work at the time of

Dubic’s inspection.

B.        Citation

No. 8546331, Order Nos. 8546333 and 8546335 – Service Brakes

Fact

of the Violations

For Citation No.

8546331 and Order Nos. 8546333 and 8546335, the Secretary asserts that N.J.

Wilbanks violated 30 C.F.R. § 56.14101(a)(1) by failing to have functioning

service brakes on three Caterpillar 631E scrapers that could stop and hold the

machines with their typical load on the maximum grade they travel. (Sec’y Br.

at 10–11) According to the Secretary, the pedal brakes on each scraper are its “service

brakes” and did not work when tested. ( Id. ) In contrast,

Respondent argues that it did not violate the standard because each scraper

could stop by dropping its bowl, a method which Respondent considers to be each

scraper’s primary service brake system. (Resp’t Br. 3–7)

In

this case, the pedal brakes on each of the three scrapers did not function from

the moment they arrived on the site. (Tr. 221:24–222:3) Inspector Dubics

considered these pedal brakes to be each machine’s “service brakes.” (Tr.

67:5–11, 69:5–10) To confirm, Dubics contacted the manufacturer, Caterpillar,

who informed Dubics that the foot pedal, which applies brake pads to the

scraper’s four wheels, is what the manufacturer considered to be the service

brake. (Tr. 131:5–20) N.J. Wilbanks’ manager of the project, Justin Crowe,

testified that although the scrapers were equipped with pedal brakes, the

primary way to stop these machines was to lower the bowl, which was the

industry’s standard. (Tr. 177:4–22) According to Crowe, this method would stop

the scraper immediately. (Tr. 183:21–184:4) N.J. Wilbanks President, Chris

Wilbanks, also testified that in his experience working in the grading

business, he had always used the bowl to stop the scrapers. (Tr. 222:4–223:23) Both

Crowe and Wilbanks explained that the pedal brakes would not be strong enough

to stop the scrapers if they carried a load and the only way to stop the

machines in those situations would be to drop the bowl. (Tr. 183:16–20, 225:21–226:2)

Crowe testified that the pedal brakes would only be used in limited circumstances,

such as loading or unloading the scrapers onto trailers, moving the scrapers

around a yard, spotting the scrapers, or washing the scrapers. (Tr. 177:17–22,

183:8–15)

The

cited standard, 30 C.F.R. § 56.14101(a)(1), provides: “Self-propelled mobile

equipment shall be equipped with a service brake system capable of stopping and

holding the equipment with its typical load on the maximum grade it travels.” 30

C.F.R. § 56.14101(a)(1). The Commission has previously considered the “service

brakes” on a Caterpillar 631 scraper to be its installed wheel brakes, which

are “activated with a pedal in the operator’s compartment.” Missouri Rock,

Inc. , 11 FMSHRC 136, 137 (Feb. 1989). The Commission has also upheld

determinations that dropping a scraper’s bowl is not always a safe and reliable

braking method, noting that the bowl “alone may not effectively stop the

scraper in all instances.” Id. at 140; see also Knife River Constr. ,

38 FMSHRC 1289, 1293 (June 2016) ( holding that a judge did not err in

relying on an inspector’s testimony that lowering the cutting tool to stop a

scraper could put an operator at risk of injury in certain situations).

Based

on the above, I reject Respondent’s argument that dropping the bowl on each

scraper qualified as a “service brake system.” Rather, I determine that the

Secretary has offered a reasonable interpretation of the standard that the

scrapers’ foot pedal brakes are its “service brakes” given that this

interpretation is consistent with the Commission’s prior findings. I also note

that although Respondent demonstrated that the scrapers had an alternative

method of braking, this method would not be ideal in all instances as Crowe

testified to a number of situations where the pedal brakes would be used

instead of dropping the bowl, including loading the scrapers onto a trailer. Given

that N.J. Wilbanks subcontracted to work on the site for only a specific period

of time, it can reasonably be inferred that the company would eventually have

to move the scrapers and load them onto trailers — a task that could potentially

lead to an accident if the scraper lacked a reliable braking method. It is

undisputed that the pedal brakes on each of the scrapers did not function. Accordingly,

I determine that the N.J. Wilbanks failed to have functioning service brakes on

the three scrapers.

For

the reasons stated, I conclude that Respondent violated 30 C.F.R. §

56.14101(a)(1) as alleged in Citation No. 8546331 and Order Nos. 8546333 and

8546335.

S&S

and Gravity

To establish the

first element of the Mathies test, the Secretary must prove an

underlying violation of a mandatory safety standard. N.J. Wilbank’s three violations

of section 56.14101(a)(1) establishes the first element of an S&S

violation.

In regard to the

second Mathies element, the Secretary must show that the violations

created a reasonable likelihood the hazard that section 56.14101(a)(1) aims to

prevent would occur. Section 56.14101(a)(1) requires mobile equipment to be

equipped with a service brake system capable of stopping and holding the

equipment in order to prevent the equipment from accidentally rolling and

hitting miners. In this case, Dubics testified that there was some foot traffic

in the area where the scrapers were operating. (Tr. 57:10–19) However, Respondent

claims that the three scrapers would have been unlikely to hit a person because

dropping the bowls could stop the machines on demand. (Resp’t Br. at 14; Tr.

183:21–184:4) In addition, the area was relatively flat, and the scrapers

typically traveled at six to eight miles per hour. (Tr. 80:14–81:5, 127:21–25,

202:3–5) Nevertheless, Crowe, the project’s manager, testified about a number

of situations in which the scrapers would use pedal brakes instead of dropping

the bowl, including loading them onto trailers, moving them around a yard,

spotting them, or washing them. (Tr. 177:17–22, 183:8–15) Assuming continued

normal mining operations, I find that there was a reasonable likelihood that

N.J. Wilbanks would eventually perform some, if not all, of these tasks that

utilize the scrapers’ pedal brakes instead of bowl dropping. For example, as

noted previously, N.J. Wilbanks would eventually have to move the scrapers and

load them onto trailers when it finished its contract. Given that the pedal

brakes did not function, I conclude that the hazard of miners being hit by the

scrapers was reasonably likely because the scrapers performed various tasks

where the pedal brakes were primarily used. Consequently, I determine that the

Secretary has satisfied the second element of the Mathies test. However,

taking into account Respondent’s arguments, I conclude that the Secretary has

not proven that the gravity should be designated as “highly likely,” but should

instead be designated as “reasonably likely.”

With regard to

the third and fourth Mathies elements, the Secretary must demonstrate a

reasonable likelihood the hazard will result in a serious injury. In analyzing

the third element, I must assume the hazard identified in the second Mathies  element

has been realized. Newtown Energy, Inc. , 38 FMSHRC at 2045. If a scraper

hit a miner because the service brake did not function, the miner would likely

be crushed given that each scraper weighed anywhere from 15 to 35 tons. (Tr.

82:19–25, 176:4–7) Consequently, I determine that the hazard of a scraper

hitting a miner would be reasonably likely to result in injuries, thus

satisfying the third Mathies element. Furthermore, I determine that such

injuries would be reasonably likely to be fatal given the size and weight of

the mobile equipment, thus satisfying the fourth Mathies element.

Accordingly, the

Secretary has satisfied all four elements of the Mathies test. I

conclude that Citation No. 8546331 and Order Nos. 8546333 and 8546335 were

appropriately designated as S&S. For reasons stated above, I determine the

gravity for each of the violations to be “reasonably likely” to result in

“fatal” injuries to “one miner.”

Unwarrantable

Failure and Negligence

The Secretary asserts that N.J.

Wilbanks’ conduct amounted to reckless disregard and an unwarrantable failure

in each of these three violations. (Sec’y Br. at 13–17) In support, the

Secretary argues that Respondent admitted to bringing the equipment onto the

work site knowing their pedal brakes were defective and allowed the condition

to exist for ten days. (Sec’y Br. at 13) The Secretary notes that the condition

was highly dangerous and the operator made no effort to abate the condition. ( Id.

at 14–17) In contrast, Respondent claims it was unaware of MSHA’s

jurisdiction and the applicable regulations. (Resp’t Br. at 15) Respondent also

asserts that while it knew the pedal brakes were defective, Respondent did not

display any lack of care because it knew the machines would be able to stop by

dropping the bowl. (Resp’t Reply Br. at 4)

In analyzing an unwarrantable failure, I

must consider the Commission’s factors for determining aggravated conduct. See

IO Coal Co. , 31 FMSHRC at 1350–51. The record reveals multiple aggravating

factors regarding these violations.

In term of knowledge and obviousness, N.J.

Wilbanks acquired the scrapers knowing that the pedal brakes were defective. (Tr.

221:24–222:3) Crowe

admitted that he would not have chosen the three scrapers had the company

realized MSHA regulations applied because their pedal brakes did not work. (Tr.

197:16–24) I have previously determined that the company should have known MSHA

regulations applied. [6]

See discussion supra  Part V.A. The work site’s supervisor,

Bishop, also trained workers to operate the equipment without using pedal

brakes. (Tr. 71:25–72:11) Therefore, I conclude that N.J. Wilbanks had

knowledge of the violation and its duty to maintain the service pedal brakes

under the standard. The involvement of supervisors Crowe and Bishop also

supports an unwarrantable failure determination . See

Lopke Quarries, Inc. , 23 FMSHRC at 711. Furthermore, multiple

employees reported the defective conditions to a supervisor and on pre-shift

examinations. (Tr. 70:13–71:3, 75:7–76:3) Given the reports and the company’s

knowledge, I thus conclude that the conditions were obvious.

Regarding the length of time and

abatement, the conditions lasted approximately ten days as N.J. Wilbanks

commenced work on site on August 15, 2010. (Tr. 45:10–21, 70:10–12, 220:12–15) In

terms of abatement, the Commission focuses on compliance efforts made prior to

the issuance of the violation. Enlow Fork Mining Co. , 19 FMSHRC 5, 17

(Jan. 1997). Although problems with the scrapers’ pedal brakes had been noted

to a supervisor and on pre-shift examinations, the company took no action to

repair the brakes. (Tr. 70:13–71:3, 75:7–76:3)

Finally, the violations posed a high

degree of danger because they were reasonably likely to cause a serious or

fatal accident as discussed above. See discussion supra  Part

V.B.2. Further, the condition affected three scraper units, which I consider to

be extensive. (Exs. S–8, S–9, S–10)

The other unwarrantable failure factor

appears neither mitigating nor aggravating. The Secretary did not present

evidence that N.J. Wilbanks had been placed on notice by MSHA that greater

efforts were required for compliance with the service brake standard. Accordingly,

I afford this factor no weight in the unwarrantable failure analysis.

After considering all the factors, particularly

the violation’s obviousness, the company’s knowledge, and the involvement of

multiple supervisors, I conclude that Citation No. 8546331 and Order Nos.

8546333 and 8546335 were a result of N.J. Wilbanks’ unwarrantable failure.

However, I do not find that N.J.

Wilbanks’ negligence rose to the level of reckless disregard. Reckless

disregard has been characterized by deliberate action, conscious knowledge of

substantial risk, and disregard or indifference to that risk. See Stillhouse

Mining, LLC , 33 FMSHRC at 803; Winn Materials, LLC , 36 FMSHRC

at 1435; Roxcoal, Inc. , 36 FMSHRC at 634. Here, I do not find that the

company displayed complete disregard or indifference to the risk of miners

being injured by the mobile equipment given that the company trained scraper

operators to use an alternative braking method that would be effective in many,

but not all, instances. Nevertheless, the company failed to meet the duty

imposed by the standard to maintain functioning service brakes on the mobile

equipment. Considering all the facts and circumstances, I conclude that N.J.

Wilbanks’ negligence should be designated as “high” for the three violations.

C.        Penalty

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).

The Secretary has proposed a

specially-assessed penalty of $26,600.00 for each violation for a total

combined proposed penalty of $79,800.00. Respondent is a small contractor of

approximately 20 to 25 employees. (Sec’y Br. at 19; Resp’t Reply Br. at 6) Respondent

operates under multi-million dollar contracts, as demonstrated by the contract

it signed with Brasfield & Gorrie. (Sec’y Br. at 19; Ex. S–3) However,

Respondent notes that their contract prices include business costs and that its

actual net profit is less than their contract prices. (Resp’t Reply Br. at 6) Respondent

asserts that the proposed penalty would affect its ability to continue in

business, but has not provided any additional information regarding its ability

to pay. (Resp’t Br. at 15) The violations in this docket were issued to N.J.

Wilbanks when it first began operations at the Warren County Quarry, and thus

N.J. Wilbanks had no history of violations prior to Dubics’ August 25, 2010,

inspection. Respondent’s history of violations show no other violations of 30

C.F.R. § 56.14101(a)(1) from August 25, 2010, to August 25, 2012, and only six

other citations were issued to N.J. Wilbanks at the mine during that period. (Ex.

S–1)

In regard to the violations themselves,

I have affirmed the Secretary’s S&S and unwarrantable failure determinations.

However, I have lowered the gravity from “highly likely” to “reasonably likely”

and the negligence from “reckless disregard” to “high.” Additionally, N.J.

Wilbanks demonstrated good faith abatement by removing two of the cited

scrapers from service and having the other scraper repaired. (Exs. S–8, S–9,

S–10) The company also worked with Inspector Dubics to implement further safety

plans. (Tr. 230:6–15)

Based on the criteria above, I conclude

that the Secretary’s proposed penalty is inappropriate. The Secretary’s special

assessment was based on the Secretary’s alleged gravity and negligence

designations. However, I have lowered both these gravity and negligence determinations.

The record therefore does not support the Secretary’s special assessment.

The minimum penalty under the Mine Act for

an unwarrantable failure section 104(d)(1) citation or order is $2,000.00. 30 U.S.C. § 820(a)(3)(A).

Taking into account N.J. Wilbanks’ small size, its lack of a history of

violations, its good faith efforts to abate the violations, modifications to the

violations’ gravity and negligence, as well as considering all the facts and

circumstances set forth above, I hereby assess a civil penalty of $2,000.00 for

each of the three violations, or $6,000.00 in total.

VI.  ORDER

Based

on the above discussion, it is hereby ORDERED that Citation No. 8546331

and Order Nos. 8546333 and 8546335 be MODIFIED to reduce the likelihood

of injury or illness from “highly likely” to “reasonably likely” and to reduce the

negligence from “reckless disregard” to “high.”

WHEREFORE,

it is ORDERED that Respondent pay a total penalty of $6,000.00 within

forty (40) days of the date of this order. [7]

/s/

L. Zane Gill

L.

Zane Gill

Administrative

Law Judge

Distribution:

Jean

C. Abreu, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth

Street, S.W., Atlanta, GA 30303

Douglas

H. Flint, Esq., Flint, Connolly & Walker, LLP, 131 East Main Street,

Canton, GA 30114

/ivn

[1]

Section 56.14101(a)(1) provides that “[s]elf-propelled mobile equipment shall

be equipped with a service brake system capable of stopping and holding the

equipment with its typical load on the maximum grade it travels.” 30 C.F.R. §

56.14101(a)(1).

[2]

Spoliation refers to “the destruction or significant alteration of evidence, or

the failure to preserve property for another’s use as evidence in pending or

reasonably foreseeable litigation.” Oil Equipment Co. v. Modern Welding Co. ,

661 F. App’x 646, 652 (11th Cir. 2016) (citing West v. Goodyear Tire &

Rubber Co. , 167 F.3d 776, 779 (2d Cir. 1999)). Sanctions for spoliation of

evidence are intended “to prevent unfair prejudice to litigants and to insure

the integrity of the discovery process.” Flury v. Daimler Chrysler Corp. ,

427 F.3d 939, 944 (11th Cir. 2005). When a party does not preserve evidence

in its control, a judge can draw an adverse inference that the evidence

destroyed would have been unfavorable to the destroying party. See IO Coal

Co. , 31 FMSHRC 1346, 1359 & n.11 (Dec. 2009). Excluding evidence is an

extreme sanction not to be imposed absent a showing of willful deception or

flagrant disregard. Gray v. N. Fork Coal Corp. , 35 FMSHRC 2349, 2360

(citations omitted). To determine what sanctions are warranted for spoliation

of evidence, factors to consider are the extent of prejudice caused by the

spoliation based on the importance of the evidence, whether that prejudice can

be cured, and the culpability of the spoliator. Oil Equipment Co. , 661

F. App’x at 652.

Here, because the condition of the mobile equipment was

the subject of MSHA’s inspection and alleged violations, I find that N.J.

Wilbanks had a duty to preserve the inspection logs in anticipation of

litigation. However, because the MSHA inspector can testify to the content of the

inspection logs, the prejudice suffered to the Secretary can be cured and does

not warrant the severe sanctions requested. Respondent’s inability to produce

the inspection logs may be factored into my weighing of the evidence and

assessing credibility in the final decision. Accordingly, the Secretary’s

motion is DENIED .

[3]

In addition to Plantation Quarry, Warren County Quarry has also been referred

to as Camak Quarry. (Tr. 53:23–54:2, 206:11–207:4)

[4]

Dubics issued imminent danger Order Nos. 8546330, 8546332, and 8546334, for the

three Caterpillar 631E scrapers, Units 109, 110, and 117, respectively. (Ex. S–7)

[5]

Dubics initially issued Order No. 8546333 as a section 104(d)(1) citation, but

later modified the violation to a section 104(d)(1) order. (Ex. S–9)

[6]

I also find the company’s claim that it did know the defective pedal brakes constituted

a violation because it did not know MSHA regulations applied suspect given that

OSHA’s regulation regarding service brakes nearly mirrors that of MSHA,

providing that scrapers “shall have a service braking system capable of

stopping and holding the equipment fully loaded[.]” 29 C.F.R. § 1926.602(a)(4).

[7]

Payment

should be sent to: Mine Safety & Health Administration, U.S. Department of

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.