Secretary of Labor v. Tim M. Ball, employed by Mountain Materials, Inc. and Secretary of Labor v. Ricky A. Rose, employed by Materials, Inc.

Plain-English summary

This case penalized two supervisors personally, not their employer. Section 110(c) of the Mine Act lets MSHA assess individual penalties against a corporate agent who knowingly authorizes, orders, or carries out a violation. An MSHA inspector arrived at Mountain Materials' Castlewood limestone pelletizer plant in April 2011 and found dust so thick he could not see fifteen feet inside, plus material built up across the floor and catwalks, including a pile 63 inches high with footprints across it. Shift foreman Tim M. Ball was cited under the housekeeping standard, and fine grind superintendent Ricky A. Rose was cited under the workplace examination standard after two weeks of exam records showed no hazards except a roof leak, with five of seven areas left blank. Judge L. Zane Gill rejected the argument that reject material in a designated floor bin was a normal part of production, finding the footprints and a cut-through access road showed miners used the area as a passageway. He held Ball knew of the buildups and ran the plant instead of cleaning up, and that Rose either ignored the thin exam records or failed to supervise the foremen who kept them. Both violations were affirmed as significant and substantial with high negligence, and the judge assessed $1,200 against Ball and $1,500 against Rose.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.20003(a) and 56.18002(a)
• Outcome: Both violations upheld as written and as S&S; individual penalties of $1,200 against Ball and $1,500 against Rose.
• Key point: A supervisor can be personally liable under section 110(c) without intending to break any rule; knowing the hazardous condition existed, having authority to fix it, and running production instead is enough.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

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

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

TIM
M. BALL, employed by Mountain

Materials,
Inc.,

Respondent.

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

RICKY
A. ROSE, employed by Mountain

Materials,
Inc.,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. VA 2014-0148-M

A.C.
No. 44-00165-340588 A

Mine:
Castlewood Plant

Docket
No. VA 2014-0149-M

A.C.
No. 44-00165-340589 A

Mine:
Castlewood Plant

DECISION AND
ORDER

Appearances:               Jason
S. Grover, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,
Virginia, for Petitioner;

David
M. Toolan, Esq., Oldcastle Law Group, Atlanta, Georgia, for Respondent.

Before:                                    Judge
L. Zane Gill

I.          INTRODUCTION

These proceedings arise under section
110(c) of the Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30
U.S.C. § 820(c). Section 110(c) provides that corporate agents, officers, or
directors who knowingly authorize, order, or carry out a Mine Act violation may
be subject to individual civil penalties. Here, the Secretary of Labor (“the
Secretary”) seeks to impose individual civil penalties on Tim M. Ball and Ricky
A. Rose (“Respondents”) in their capacity as employees and agents of mine
operator Mountain Materials, Inc. for two violations

that
were issued to Mountain Materials by the Department of Labor’s Mine Safety and
Health Administration (“MSHA”) under section 104(d)(1) of the Mine Act, 30
U.S.C. § 814(d)(1).[1] 

The sole matter at issue in Docket Number
VA 2014-0148-M is Citation Number 8634338, which alleges a housekeeping
violation. The Secretary seeks a $1,200.00 penalty against Respondent Ball for this
alleged violation. The sole matter at issue in Docket Number VA 2014-0149-M is
Order Number 8634340, which alleges an examination violation. The Secretary
seeks a $1,500.00 penalty against Respondent Rose for this alleged violation.

The parties presented testimony and
evidence on May 27, 2015, in Big Stone Gap, Virginia. For the reasons discussed
below, after considering all the evidence, I uphold the two violations as
written and assess an individual penalty against each Respondent.

II.        STIPULATIONS

The parties have
entered into the following stipulations of fact, which were listed in the
parties’ Joint Prehearing Report and read into the record at hearing (Ex. S-5;
Tr. 5:17–6:18)[2]:

1.     
Mountain
Materials, Inc., was an “operator” as defined in section 3(d) of the Mine Act,
30 U.S.C. § 802(d), at the Castlewood Plant mine.

2.     
Castlewood
Plant is a “mine” as defined in section 3(h) of the Mine Act, 30 U.S.C. §
802(h).

3.     
The
products of the Castlewood Plant entered commerce, or the operations or
products of the Castlewood Plant affected commerce, within the meaning of the Mine
Act, specifically sections 3(b) and 4, 30 U.S.C. §§ 802(b), 803.

4.     
Operations
of Mountain Materials, Inc. at the Castlewood Plant where the citation and
order at issue in this docket were issued are subject to the jurisdiction of
the Mine Act.

5.     
This
proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judges under sections
105 and 113 of the Mine Act, 30 U.S.C. §§ 815, 823.

6.     
Mountain
Materials, Inc. is a “corporation” under the Mine Act.

7.     
Citation
8634338 was properly served by a duly authorized representative of the
Secretary of Labor.

8.     
Order
8634340 was properly served by a duly authorized representative of the
Secretary of Labor.

III.       FACTUAL
BACKGROUND[3]

The citation and order at issue
in this matter were written by MSHA Inspector Danny Hagy[4]
on April 11, 2011, at Mountain Materials’ limestone processing facility, the
Castlewood Plant. (Ex. S-1; Ex. S-2) A few days earlier, Hagy had been
contacted by a former MSHA colleague, Jack Burnett,[5]
regarding dust conditions and buildups of material at the Castlewood Plant. (Tr.
106:14-19, 107:11–108:8) At the time, Burnett was working for Mountain
Materials as a safety consultant tasked with conducting mock inspections at
four of the company’s operations, including the Castlewood Plant. (Tr. 66:3-12,
99:15–100:2) Burnett’s comments about dust and buildups at the pelletizer plant
spurred Inspector Hagy to visit the facility to make sure there were no
problems. (Tr. 114:5-12)

Hagy arrived at the Castlewood
Plant around 7:00 p.m. on April 11, and initiated a regular semiannual MSHA
inspection. (Tr. 12:4–13:7) The mine office was closed, so he traveled directly
to the pelletizer plant. (Tr. 13:5-8) The pelletizer plant is a large building where
raw limestone is fed through a grinding mill, mixed with a binding agent, spun
on a disc to form round pellets, and run through a dryer to create a product
that is sold for use in agricultural applications. (Tr. 13:11-21, 34:14-20, 49:14-18,
52:4–53:5, 75:13-15, 80:13–83:25)

When Hagy looked through the
doorway of the plant, his view was obscured by “excessive” airborne dust that
prevented him from seeing beyond about fifteen feet into the building. (Tr.
13:22–14:16, 15:2-12, 18:4-11) Because his visibility was limited and he did
not want to inhale the dust, he waited outside the door for about ten minutes
until an employee arrived and directed him to the control room at the back of
the building. (Tr. 14:1-3, 14:17–15:25) Respondent Ball,[6]
the shift foreman, was in the control room operating the pelletizer plant. (Tr.
15:21-23) He was the only person in the plant at the time. (Tr. 76:11-13) Inspector
Hagy asked why the dust was so thick, but as of the hearing date four years
later, he could no longer recall what Ball had said to him. (Tr. 16:16-19, 32:6-10,
38:22-25) Ball immediately attempted to tamp down the dust by applying water to
the material he was processing, which clogged the machinery and halted
production. (Tr. 17:2-9)

Hagy walked through the plant
with Ball after the dust had settled. (Tr. 17:8-19, 18:14-24) He observed “quite
a bit of buildup of material throughout the plant” both in walkways and on the
floor, including multiple areas where footprints were visible and one location
where material was piled to a height of 63 inches. (Tr. 17:11–18:1, 19:2-15) Hagy
alleges that he noticed several other obvious safety hazards, although by the
hearing date he could no longer remember any of them except a large door that was
hanging by a hinge which he was concerned would fall on a miner. (Ex. S-2; Tr.
29:17–30:11) When he reviewed the plant’s workplace examination records, he found
that no hazards had been recorded over the past two weeks except a leak in the
roof. (Ex. S-2 at 5; Tr. 31:11-24)

Based on his observations, Inspector
Hagy issued Citation Number 8634338, which alleges that the operator failed to
keep the pelletizer plant’s floor and travelways clear, and Order Number
8634340, which alleges that the operator failed to conduct an adequate
workplace examination in the pelletizer plant. (Ex. S-1; Ex. S-2; Tr.
20:17–21:2, 26:9–27:18) Citation Number 8634338 was terminated eight days
later, on April 19, 2011, with notation that the buildups of material in the
travelways had been cleaned up. (Ex. S-1 at 3) Order Number 8634340 was
terminated on April 20 with notation that shift foremen had been retrained in
the proper performance of workplace exams. (Ex. S-2 at 4)  

In July 2011, an MSHA
investigator interviewed Ball and the plant’s fine grind superintendent,
Respondent Rose,[7]
who had been onsite but not at the pelletizer plant the evening of the
inspection. (Ex. S-3; Ex. S-4; Tr. 47:25–49:4) The Respondents told the
investigator that the buildups had been caused by a malfunction or imbalance in
the pelletizing process that occurred while running a special product. (Ex. S-3
at 4, 5; Ex. S-4 at 5) At hearing, they explained that when an imbalance causes
the material to become too wet or too dry, it is diverted and dumped into a
“floor bin” area[8]
as reject material that is later picked up with a skidsteer and run through the
system again. (Tr. 49:12–53:17, 79:4-14, 82:3–83:10, 97:11-13) They suggested this
is a normal part of the pelletizing process that can rapidly generate large
amounts of reject material and dust. (Tr. 49:9-11, 54:12–55:2, 59:3-18, 79:15–80:3,
84:5-20, 91:11-21, 101:5-15)

IV.       LEGAL
PRINCIPLES

Section 110(c) Liability

Section 110(c) of the Mine Act provides
that “[w]henever a corporate operator violates a mandatory health or safety
standard … any director, officer, or agent of such corporation who knowingly
authorized, ordered or carried out such violation shall be subject to the same
civil penalties” as the corporate operator. 30 U.S.C. § 820(c).

Thus, as a threshold matter,
section 110(c) requires a showing that the individual respondent is a director,
officer, or agent of a corporate operator. Although the corporate operator – in
this case, Mountain Materials – need not be a party to the proceeding, another
necessary predicate for 110(c) liability is a finding that the operator
violated the Mine Act. Kenny Richardson, 3 FMSHRC 8, 9-11 (Jan. 1981), aff’d
on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461
U.S. 928 (1983).

Importantly, section 110(c) also requires
a showing that the individual respondent knowingly authorized, ordered, or
carried out the violation. The Commission has construed “knowingly” to include
both actual and constructive knowledge, explaining that 110(c) liability is
triggered whenever a person “in a position to protect employee safety and
health fails to act on the basis of information that gives him knowledge or
reason to know of the existence of a violative condition.” Kenny
Richardson, 3 FMSHRC at 15-16 (emphasis added); accord Sumpter v. Sec’y
of Labor, 763 F.3d 1292, 1299-1300 (11th Cir. 2014); Freeman United Coal
Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997). Specific
intent is not required. The Secretary must prove only that the individual
knowingly acted, not that the individual knowingly violated the law. McCoy
Elkhorn Coal Corp., 36 FMSHRC 1987, 1996 (Aug. 2014) (citing Warren
Steen Constr. Co., 14 FMSHRC 1125, 1131 (July 1992)). Although a
showing of willfulness is not required either, “section 110(c) liability is generally
predicated on aggravated conduct constituting more than ordinary negligence.” Ernest
Matney, 34 FMSHRC 777, 783 (Apr. 2012) (citing BethEnergy Mines, Inc.,
14 FMSHRC 1232, 1245 (Aug. 1992)); see also Freeman United, 108 F.3d at
360.

Whether conduct is “aggravated” is
determined by looking at all the facts and circumstances of the case to see if
any aggravating or mitigating factors exist. Manalapan Mining Co., 35
FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346, 1351 (Dec.
2009); Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Big
Ridge, Inc., 34 FMSHRC 119, 125 (Jan. 2012) (ALJ Zielinski). These include:
(1) the extent of the violative condition; (2) the length of time that the
violative condition existed; (3) whether the violation posed a high degree of
danger; (4) whether the violation was obvious; (5) the respondent’s knowledge
of the existence of the violation; (6) the respondent’s prior efforts in abating
the violative condition; and (7) whether the respondent had been previously placed
on notice that greater efforts were necessary for compliance. Sierra Rock
Products, Inc., 37 FMSHRC 1, 4 (Jan. 2015); ICG Hazard, LLC, 36
FMSHRC 2635, 2637 (Oct. 2014); Manalapan, 35 FMSHRC at 293; IO Coal,
31 FMSHRC at 1351-57; Consolidation Coal, 22 FMSHRC at 353; Cyprus
Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other
grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19
FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192,
195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy
Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc.,
10 FMSHRC 705, 709 (June 1988); see also Ernest Matney, 34 FMSHRC at
783-87 (analyzing aggravated conduct in 110(c) case by discussing unwarrantable
failure factors).

Assuming that 110(c) liability applies,
the gravity of the violation and negligence must also be evaluated in
accordance with the Commission’s well-established legal principles, summarized
below, in order to determine the appropriate penalty.

Significant and
Substantial (S&S)              

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

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

In order to establish that a violation
of a mandatory safety standard is significant and substantial under National
Gypsum, the Secretary of Labor must prove: (1) the underlying violation of
a mandatory safety standard; (2) a discrete safety hazard – that is, a measure
of danger to safety – contributed to by the violation; (3) a reasonable
likelihood that the hazard contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will be of a reasonably
serious nature.

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

Traditionally, the third element of the Mathies
test has presented the most difficulty when determining whether a violation is
S&S. In U.S. Steel Mining Co., the Commission provided additional
guidance: “[T]he third element of the Mathies formula ‘requires that the
Secretary establish a reasonable likelihood that the hazard contributed to will
result in an event in which there is an injury.’” 7 FMSHRC 1125, 1129 (Aug.
1985) (citing U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984)). The
Secretary, however, “need not prove a reasonable likelihood that the violation
itself will cause injury.” Cumberland Coal Res., 33 FMSHRC 2357, 2365
(Oct. 2011) (citing Musser Eng’g, Inc., 32 FMSHRC 1257, 1281 (Oct.
2010)), aff’d, 717 F.3d 1020 (D.C. Cir. 2013). Further, the Commission
has found that “the absence of an injury-producing event when a cited practice
has occurred does not preclude a determination of S&S.” Id. (citing Elk
Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005) and Blue Bayou Sand
& Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). This evaluation is
also made in consideration of the length of time that the violative condition
existed prior to the citation and the time it would have existed if normal
mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905; U.S.
Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).

The Fourth and Seventh Circuits have interpreted
the Mathies test somewhat differently by placing the emphasis and the
bulk of the analysis on the second element of the test. See Knox Creek Coal
Corp. v. Sec’y of Labor, 811 F.3d 148 (4th Cir. 2016); Peabody Midwest
Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014). Because the Castlewood
Plant is located in the Fourth Circuit, my S&S analysis will follow the
Fourth Circuit’s ruling in Knox Creek. According to the Fourth Circuit,
the second element of the Mathies test “primarily accounts for the
Commission’s concern with the likelihood that a given violation may
cause harm” because “for a violation to contribute to a discrete safety hazard,
it must be at least somewhat likely to result in harm.” Knox Creek, 811
F.3d at 162. The Fourth Circuit also held that the occurrence of the hazard
must be assumed at the third prong of the Mathies test, characterizing
the appropriate inquiry as whether the hazard, assuming it occurred, would
result in serious injury. Id. at 161-65.

Gravity

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

Negligence

“Negligence” is not defined in the Mine
Act. The Commission, has, however,

recognized that “[e]ach mandatory
standard … carries with it an accompanying duty of care to avoid violations of
the standard, and an operator’s failure to meet the appropriate duty can lead
to a finding of negligence if a violation of the standard occurs.” A.H. Smith
Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator
met its duty of care, we consider 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. See
generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).

Brody
Mining, LLC,
37 FMSHRC 1687, 1702 (Aug. 2015); Jim Walter Res., Inc., 36 FMSHRC 1972,
1975 (Aug. 2014); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008). “Thus
in making a negligence determination, a Judge is not limited to an evaluation
of allegedly ‘mitigating’ circumstances. Instead, the Judge may consider the
totality of the circumstances holistically.” Brody Mining, LLC, 37 FMSHRC
at 1702.

Indeed, the Part 100 regulations “apply
only to the proposal of penalties by MSHA and the Secretary of Labor;
under both Commission and court precedent, the regulations do not extend to the
independent Commission, and thus the MSHA regulations are not binding in any
way in Commission proceedings.” Id. at 1701-02 (citing Jim Walter
Res., Inc., 36 FMSHRC at 1975 n.4, and Sellersburg Stone Co. v. FMSHRC,
736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[N]either the ALJ nor the Commission
is bound by the Secretary’s proposed penalties … we find no basis upon which to
conclude that [MSHA’s Part 100 penalty regulations] also govern the Commission.”),
aff'g 5 FMSHRC 287 (Mar. 1983)). Although the Secretary’s part 100 regulations
are not binding on the Commission, the Secretary’s definitions of negligence in
those provisions are illustrative.

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

Penalties

The
principles governing the authority of Commission administrative law judges to
assess civil penalties de novo for violations of the Mine Act are well
established. Section 110(i) of the Mine Act delegates to the Commission and its
judges the “authority to assess all civil penalties provided in [the] Act.” 30
U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the
Secretary. 30 U.S.C. §§ 815(a), 820(a). When an operator notifies the Secretary
that it intends to challenge a penalty, the Secretary petitions the Commission
to assess said penalty. 29 C.F.R. § 2700.28. Thus, the Commission alone is
responsible for assessing final penalties. See Sellersburg Stone Co. v.
FMSHRC, 736 F.2d at 1151-52; American Coal Co., 35 FMSHRC 1774, 1819
(June 2013) (ALJ Zielinski).  

Section 110(i) of the
Mine Act sets forth six statutory criteria for the Commission to consider when
assessing civil penalties. See 30 U.S.C. § 820(i). These six criteria
also apply, with appropriate revisions, to the assessment of penalties against individuals
under section 110(c). Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1764
(Aug. 2012). Specifically, the Commission has indicated that judges should
consider the following criteria when assessing a penalty against an individual:
(1) the individual’s history of previous violations; (2) the appropriateness of
the penalty to the individual’s income and net worth; (3) the effect of the
penalty on the individual’s ability to meet his financial obligations; (4) whether
the individual was negligent; (5) the gravity of the violation; and (6) the
demonstrated good faith in abatement of the violative condition. Id.; Ambrosia
Coal & Constr. Co., 19 FMSHRC 819, 823-24 (May 1997); Sunny Ridge
Mining Co., 19 FMSHRC 254, 271-72 (Feb. 1997).

The Commission has repeatedly held that
substantial deviations from the Secretary’s proposed assessments must be
adequately explained using the Section 110(i) criteria. E.g., Sellersburg
Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000). A judge need not
make exhaustive findings but must provide an adequate explanation of how the
findings contributed to his or her penalty assessments. Cantera Green,
22 FMSHRC at 621.

Although all of the statutory penalty
criteria must be considered, they need not be assigned equal weight. Thunder
Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Generally speaking, the
magnitude of the gravity of a violation and the degree of negligence are
important factors, especially for more serious violations for which substantial
penalties may be imposed. Musser Eng’g, Inc., 32 FMSHRC 1257, 1289
(Oct. 2010) (judge justified in relying on utmost gravity and gross
negligence in imposing substantial penalty); Spartan Mining Co., 30
FMSHRC 699, 725 (Aug. 2008) (appropriate for judge to raise a penalty
significantly based upon findings of extreme gravity and unwarrantable
failure); Lopke Quarries, Inc., 23 FMSHRC 705, 713 (July 2001) (judge
did not abuse discretion by weighing the factors of negligence and gravity more
heavily than the other four statutory criteria). For example, violations involving
“extreme gravity” and/or “gross negligence,” or, as stated in the former
section of 105(a), “an extraordinarily high degree of negligence or gravity, or
other unique aggravating circumstances,” may dictate higher penalty
assessments. See 30 C.F.R. Part 100, Final Rule, 72 Fed. Reg. 13592-601,
13621.

V.        FINDINGS
AND DISCUSSION

A.        Threshold
Finding of Corporate Agency

As a preliminary
matter, I find that Respondents Ball and Rose were agents of a corporate
operator within the meaning of section 110(c). The parties stipulated that
Mountain Materials is a corporation. (Ex. S-5) Ball and Rose admitted that at
all times relevant to these proceedings, they were employed by Mountain
Materials as shift foreman and superintendent, respectively. (Answer ¶7) The
Respondents also admitted they were “agents” of the company within the meaning
of section 3(e) of the Mine Act, 30 U.S.C. § 802(e), which defines an agent as
“any person charged with responsibility for the operation of all or a part of a
coal or other mine or the supervision of the miners in a coal or other mine.” (Answer
¶7; Tr. 45:22-25) Both men were charged with responsibility for the operation
of the pelletizer plant and the supervision of miners working there. (Ex. S-3
at 2; Ex. S-4 at 2, 5; Tr. 63:18–64:12) Accordingly, the Respondents are
subject to section 110(c) as corporate agents.

B.        Citation Number 8634338
(Housekeeping Violation)

Citation Number
8634338 alleges a violation of 30 C.F.R. § 56.20003(a). The Secretary seeks an
individual penalty against Respondent Ball for this violation.

1.         Violation
of 30 C.F.R. § 56.20003(a)

Section 56.20003(a) is a broad, general
“housekeeping” standard that provides: “Workplaces, passageways, storerooms,
and service rooms shall be kept clean and orderly.” 30 C.F.R. § 56.20003(a). Thus,
the Secretary must establish two elements: (1) the cited area is a “workplace,”
“passageway,” “storeroom,” or “service room,” and (2) the area is not being
kept clean and orderly. The Secretary bears the burden of proving each
element of the violation by a preponderance of the evidence. RAG Cumberland
Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590
(D.C. Cir. 2001). The Secretary may properly charge an operator with a
violation if a reasonably prudent person familiar with the protective purposes
of the cited standard and the factual circumstances surrounding the alleged
violation, including any facts peculiar to the mining industry, would have
recognized a hazard warranting corrective action within the purview of the
applicable regulation. LaFarge North America, 35 FMSHRC 3497, 3500-01
(Dec. 2013); Ideal Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama
By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982).

In this case,
Inspector Hagy alleges that § 56.20003(a) was violated when the mine operator
failed to keep travelways clean and orderly in the pelletizer plant. (Tr.
20:17–21:5; Ex. S-1) Specifically, the narrative portion of the citation states
that there were buildups of material “throughout the floor and the travel ways”
of the plant, including one area where the material was 63 inches high and
several areas where miners had been walking through the buildups. (Ex. S-1 at
1) Hagy supported these allegations by documenting and describing specific locations
where he observed buildups.

Buildups in Front of the MCC

One such location was on the floor in
front of the MCC (the motor control center or master control center), which houses
the electrical switches that lock out the pelletizer plant. (Tr. 25:10–26:2, 76:18)
Hagy observed and photographed accumulated material with footprints in it at
this location. (Ex. S-1 at 6) Respondent Ball did not deny that there were
buildups of material in front of the MCC. He testified that this area is
adjacent to the disc that spins the material into pellets, which emits “small
particles that fly everywhere” when it malfunctions, and that the plant had
malfunctioned the day of the inspection. (Tr. 76:14-77:17) Ball also conceded
that he was the person who had walked through the built-up material, leaving
footprints. (Tr. 19:21–20:1, 25:10-15, 88:8-14) He testified that there is a “little
walkway” running through the area that is used by the plant operator. (Tr.
77:2-4)

I find that the area in front of the MCC
constitutes a “passageway” under § 56.20003(a) because miners must pass through
it in order to access the MCC, as evidenced by the fact that Ball referred to
it as “a little walkway” and walked through it. This area was not being kept
clean and orderly, in violation of § 56.20003(a).

Buildups in the Floor Bin Area

Elsewhere on the plant floor, Hagy
photographed a pile of material that had accumulated to a height of 63 inches. (Ex.
S-1 at 5; Tr. 19:2-7) Respondents Ball and Rose did not dispute that the 63-inch
pile existed. (Tr. 53:18-24, 73:2, 88:4, 92:8-9) They also agreed that, as
depicted in the photograph, there were visible footprints or a “goat path” in
the pile as if someone had walked across it. (Tr. 55:18-21, 88:1-7; Ex. S-1 at
5) Ball stated that an access road had been cut through the pile on the prior
shift so that miners could drive equipment through the area hauling pallets of sodium
to be “poured in the bottom” or reject material to be dumped back on the belt. (Tr.
72:23–73:13, 90:22–91:10; Ex. S-4 at 4)

Respondents suggested it is acceptable
for material to accumulate in this area because it is designated as a floor bin,
not a walkway or workplace. (Tr. 49:9-11, 53:22–55:2, 79:15–80:3, 91:11-21, 94:9-17)
According to Respondents, allowing reject material to collect here does not
present a safety issue because miners should know to avoid walking through the
area if material is present. (Tr. 55:9-13, 95:4–96:13) However, relying on
miners’ skill and attentiveness to prevent injury “ignores the inherent
vagaries of human behavior.” Peabody Coal Co., 19 FMSHRC 1381, 1385
(Aug. 1997). Moreover, the footprints and Ball’s account of an access road running
through the pile show that miners were actually using this area as a passageway.
In fact, Ball admitted that the area could be characterized as a travelway
under the circumstances (Tr. 94:25–95:5), bringing it within the ambit of §
56.20003(a). The pile of material in this area was so large that a reasonably
prudent person would have at least made an attempt to begin clearing it. I find
that this area was not being kept clean and orderly, in violation of §
56.20003(a).  

Buildups in Other Parts of the Plant

Other parts of the plant aside from the
MCC and floor bin areas were also covered in dust, according to Inspector Hagy.
(Tr. 19:8-15, 43:13-15, 108:9-21) For example, a catwalk around one of the
crushers or mills was so full of rocks and dust that the material was rolling
off the sides. (Tr. 19:10-13, 108:12-15, 114:20–115:2) Hagy described the accumulations
as excessive. (Tr. 19:14) He did not recall seeing any parts of the plant floor
that were clear. (Tr. 19:16-20, 108:22-24) There were so many places in need of
cleaning that it was difficult to list them all, he testified. (Tr. 115:7-9)

The Respondents did not specifically challenge
these allegations. Ball stated that if the catwalks or stairs had been “bad,”
he was sure he would have written them up, but he “c[ould]n’t really remember.”
(Tr. 97:14-22) Rose opined that “on the most part, we run a pretty good –
pretty clean house” (Tr. 59:22-24), but did not address Hagy’s account of
material blanketing the floor and spilling over the sides of the catwalk around
the crusher. Ball and Rose also attempted to explain why the citation was not
terminated for eight days. They testified that they had probably finished
cleaning the plant relatively quickly, but had to wait several days for
Inspector Hagy to return to terminate the citation. (Tr. 68:4–71:9, 78:19–79:3,
87:3-23) However, Hagy testified that although the floor probably could have
been cleaned with a loader in just a few hours, “it was all the catwalks and
these other areas that had to be manually shoveled and cleaned that took the
amount of time that it did.” (Tr. 108:18-21)

After considering all the evidence, I
find Hagy’s description of the conditions at the pelletizer plant to be more
credible than Respondents’. I fully credit Hagy’s testimony that there were
extensive buildups of material throughout the travelways and floor of the plant,
in violation of § 56.20003(a).

I also reject Respondents’ suggestion
that the buildups of material were a normal, unavoidable part of the mining
process. Respondents argue that the dust and buildups developed very rapidly at
the beginning of the shift when an attempt to make a particularly difficult product
triggered a malfunction that required Ball, who was not the regular plant
operator, to dump large amounts of reject into the floor bin to prevent it from
accumulating elsewhere. (Resp. Br. 6; Tr. 57:4-6, 73:22–75:12, 77:18–78:9, 97:1-10,
101:3-15) Ball testified that his normal practice would be to clean up the
material in the bin area once the plant is running smoothly again. (Tr.
97:23–98:1) The implication is that the plant would have been cleaned in due
time, but the material built up too rapidly to be addressed before the
inspector showed up. However, the buildups were very extensive and bore
footprints in multiple places. It is improbable to believe they arose in the
short period of time suggested by Respondents. Also, Ball admitted that a pile
of material was already present before his shift began. (Tr. 72:16–73:10, 86:1-7)
A reasonably prudent person would have recognized a hazard and initiated a
cleanup. Ball chose to begin running the plant instead. This action was inconsistent
with the standard of care placed on the operator under § 56.20003(a). Because the
operator failed to keep passageways clean and orderly in the plant, §
56.20003(a) was violated.

2.         S&S
and Gravity      

Inspector Hagy marked this violation as S&S
and reasonably likely to result in a permanently disabling injury to one miner.
(Ex. S-1) He was concerned that “[i]f normal mining practices were to continue
in this condition, [with] people walking over this excessive amount of
material, dust in the plant, visibility low, it’s reasonably likely we could
have had a serious injury” such as a broken bone caused by a miner tripping and
falling over material in the floor or falling down a flight of stairs. (Tr.
21:9–23:3)

I have already found a violation of the
mandatory safety standard at § 56.20003(a), satisfying the first element of the
Mathies test for S&S.

The
second Mathies element requires a showing that the violation contributed
to a discrete safety hazard. As conceded by Respondents Ball and Rose, this
violation contributed to the hazard of a miner slipping, tripping, or falling
due to the built-up material. (Tr. 65:1-11, 88:19–89:21) According to the
Fourth Circuit, “for a violation to contribute to a discrete safety hazard, it
must be at least somewhat likely to result in harm.” Knox Creek, 811
F.3d at 162. The buildups of material at issue in this case were located in travelways
and on the floor of the active pelletizer plant in areas where miners worked
and traveled, as evidenced by the footprints in many of the buildups. The
buildups were so extensive that Inspector Hagy did not see any clear paths
across the floor. (Tr. 19:16-20, 108:22-24) If normal mining operations had
continued, it was reasonably likely that miners accessing the equipment in the pelletizer
plant building would have to walk over and through the widespread accumulations,
as Respondent Ball admitted doing. The accumulated material included dust,
rocks, and pellets. (Tr. 53:6-13, 77:4-6, 79:19-23, 114:20-24) It would be
difficult for a miner to keep his footing in these materials. Airborne dust
obscured visibility in the plant (Tr. 18:4-11), increasing the chance that a
miner would lose his footing and fall while trying to cross the unstable and
uneven surfaces created by the buildups. Given these factors, I find that this
violation was more than “at least somewhat likely to result in harm” to miners
and that the safety hazard to which it contributed was discrete. Accordingly,
the second Mathies element is satisfied.

The
third and fourth Mathies elements inquire whether the hazard, assuming
it occurred, would be reasonably likely to result in a reasonably serious injury.
As noted above, the hazard presented by this violation was a slip- or
trip-and-fall hazard. Extensive buildups were present both on elevated catwalks
and on the floor of the pelletizer plant. If a miner were to lose his footing
in the buildups and fall against a piece of machinery, down a flight of stairs,
or onto the hard plant floor, especially from an elevated catwalk, he would be
reasonably likely to sustain reasonably serious injuries such as broken bones,
muscle sprains, or permanently disabling injuries related to contacting moving
machine parts. Accordingly, the third and fourth Mathies elements are
satisfied.

Because
the evidence satisfies all four elements of the Mathies test, I find
that this violation was S&S.

Based on my findings above, I also find
that the gravity of this violation was serious because it was reasonably likely
to result in a serious or permanently disabling injury to a miner.    

3.         Respondent
Ball’s Liability and Negligence

Ball
can be held individually liable for a penalty under section 110(c) if he
“knowingly authorized, ordered or carried out” the violation. It is not
necessary to find that he intended to violate the safety standard, actually
knew a standard was being violated, or displayed willfulness. See Freeman
United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997)
(actual knowledge or specific intent not required); Ernest Matney, 34
FMSHRC 777, 783 (Apr. 2012) (willfulness not required); BethEnergy Mines,
Inc., 14 FMSHRC 1232, 1245 (Aug. 1992) (conscious disregard of safety
standard not required). It is sufficient to find that he should have known of
the violation but nonetheless authorized, ordered, or carried out the violative
conduct and, in doing so, engaged in more than ordinary negligence. See,
e.g., McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1996-99 (Aug. 2014)
(affirming 110(c) liability when foreman was aware of coal accumulations but
directed production to continue before initiating cleanup).

I find that Ball knew there were
buildups of material throughout the pelletizer plant on April 11, 2011, and
should have known that this condition violated § 56.20003(a). As shift foreman,
he was responsible for reviewing prior examination records and conducting his
own examination to ensure the workplace was clear of safety hazards. (Ex. S-4
at 2, 3, 5, 7; Tr. 89:2-7, 92:24–93:6) He customarily walks through the
workplace at the beginning of the shift to ensure the area is safe for his men,
and he did so on April 11. (Tr. 72:16–73:21) At that time, he was aware that
the plant had not been running smoothly. He observed a pile of reject material on
the plant floor that was so large a road had been cut through it, and he walked
through buildups of material in front of the MCC. (Tr. 73:1-13, 86:1-7, 88:11-14)
He was aware that the housekeeping standard requires travelways to be kept
clear and that buildups in travelways pose a slip/trip hazard. (Tr. 88:15–18) He
admits it was his responsibility to clear buildups and make sure dust was
controlled at the plant. (Tr. 90:1-3, 91:22–92:11; Ex. S-4 at 5) He also admits
that buildups in travelways or a large pile such as the one he saw in the floor
bin area create a hazard, and that he could have made a managerial decision to
initiate immediate cleanup action. (Tr. 88:19–89:21, 93:7-22) Despite knowing
that hazardous conditions existed and being in a position to address them, Ball
failed to do so. Instead, he added to the buildups by running the plant. (Tr. 73:14–74:3,
95:18-24) I find that his actions amounted to carrying out and implicitly
authorizing the violation.

Ball argues that he works with friends
and family members at the mine and would never deliberately interfere with his
coworkers’ safety or violate a safety practice or standard. (Tr. 8:2–9:1) However,
deliberate intent to commit a violation is not required. See McCoy Elkhorn,
36 FMSHRC at 1996. Even if Ball genuinely did not realize the buildups were
extensive enough that they needed to be cleared in order to meet the standard
of care prescribed in § 56.20003(a), he still can be held liable as a foreman
for failing to take adequate steps to meet that standard of care. See Sumpter
v. Sec’y of Labor, 763 F.3d 1292, 1300 (11th Cir. 2014) (rejecting good
faith as a defense to 110(c) liability); LaFarge Constr. Materials, 20
FMSHRC 1140, 1148-49 (Oct. 1998) (noting it is incumbent on agents to recognize
serious hazards and meet the standard of care proportionate to the danger); Prabhu
Deshetty, 16 FMSHRC 1046, 1051 (May 1994) (rejecting argument that foreman
did not realize accumulations were extensive enough to constitute a violation). 

As discussed above, 110(c) generally requires
a showing of aggravated conduct, which is analyzed with reference to factors
such as the extensiveness, obviousness, dangerousness, and duration of the
violation, the respondent’s knowledge of the violation, his abatement efforts,
and whether he was on notice that he needed to make a greater effort to comply
with the Mine Act.

Notice of the need for greater
compliance efforts generally takes the form of specific warnings from MSHA or a
history of past similar violations. See Dawes Rigging & Crane Rental,
36 FMSHRC 3075, 3080-81 n.5 (Dec. 2014). In this case, MSHA did not single out
the Respondent to warn him that he needed to make a greater effort to comply
with the housekeeping standard.

However, Ball had knowledge of the
violation in that he was fully aware of the conditions at the plant and was
familiar with the requirements imposed on him by § 56.20003(a) and by his role
as a foreman, yet he failed to make any effort to abate the violation until
Inspector Hagy arrived at the plant and asked him about the dust. (Tr. 88:15-18,
89:2-7, 90:1-3, 91:22–94:13) The violation was very obvious. The photographs
taken by Inspector Hagy show that the buildups of material would have been readily
discernable to anyone who walked into the pelletizer plant. (Ex. S-1 at 5-6; see
also Tr. 24:8-9, 65:12-16) The violation was extensive both in terms of the
physical extent of the buildups and the time taken to cleat them: numerous
areas in the plant were affected; large amounts of material had been permitted
to accumulate in some locations, such as the 63-inch pile in the floor bin and the
overflowing catwalk around the crusher; and it took eight days for the citation
to be terminated. The violation was dangerous in that the buildups contributed
to the hazard of a miner incurring serious injury in a slip- or trip-and-fall
accident. I agree with Inspector Hagy that the large amounts of material could
not have accumulated in one shift, and therefore the duration of the violation
was longer than a shift. (Tr. 23:8-22, 39:18-21) These are all aggravating
factors.    

Despite Ball’s knowledge of the
violation, the extensiveness and obviousness of the violative conditions, and the
danger they posed, he failed to take abatement action. Ball has not shown that
there were any significant mitigating factors. For these reasons, I find that he
engaged in aggravated conduct constituting more than ordinary negligence in
connection with this violation.[9]
Because he knowingly authorized and carried out this violation and his conduct
was aggravated, he is liable for a penalty under 110(c).      

Based on my finding of aggravated
conduct with no mitigating factors, I also find that Ball’s negligence in
connection with this violation was high.

4.         Penalty

The Secretary requests that I assess a
penalty of $1,200.00 against Ball for this violation. As discussed above, the
criteria to be considered when assessing a penalty against an individual
respondent include: (1) his history of previous violations; (2) the
appropriateness of the penalty to his income and net worth; (3) the effect of
the penalty on his ability to meet his financial obligations; (4) whether he
was negligent; (5) the gravity of the violation; and (6) the demonstrated good
faith in abatement of the violative condition. Mize Granite Quarries, Inc.,
34 FMSHRC 1760, 1764 (Aug. 2012); Ambrosia Coal & Constr. Co., 19
FMSHRC 819, 823-24 (May 1997); Sunny Ridge Mining Co., 19 FMSHRC 254, 271-72
(Feb. 1997).

With regard to the first penalty criterion,
the Secretary has not provided any information on Ball’s violation history. Ball
asserts that he has worked at the Castlewood Plant for more than thirty years
and has never been accused of the type of aggravated conduct necessary to
establish 110(c) liability. (Resp. Br. 6) I conclude that he does not have a
history of 110(c) violations.

The second and third penalty criteria
are intended to account for factors such as the Respondent’s income and family
support obligations, the appropriateness of the penalty in light of his job
responsibilities, and his ability to pay. Sunny Ridge, 19 FMSHRC at 272.
The Commission has encouraged ALJs to make specific findings as to the Respondent’s
net worth and income and the nature and extent of his financial obligations. Ambrosia,
19 FMSHRC at 824. However, in this case, the parties have presented no
information that would shed any light on Ball’s personal financial status aside
from the fact that he is a shift foreman who has worked at a limestone
processing plant for more than thirty years.

The remaining penalty criteria are
negligence, gravity, and good faith abatement efforts. My findings on gravity
and negligence are discussed at length above. The evidence shows that this
violation was promptly abated in good faith by shutting down the plant for
eight days in order to clean up the accumulations.

After considering the statutory penalty
criteria, I find that $1,200.00 is an appropriate penalty to assess against foreman
Ball for this serious, high-negligence violation.

C.        Order
Number 8634340 (Examination Violation)

Order Number
8634340 alleges a violation of 30 C.F.R. § 56.18002(a). The Secretary seeks an
individual penalty against Respondent Rose for this alleged violation.

1.         Violation
of 30 C.F.R. § 56.18002(a)

The cited mandatory safety standard
provides: “A competent person designated by the operator shall examine each
working place at least once each shift for conditions which may adversely
affect safety or health. The operator shall promptly initiate action to correct
such conditions.” 30 C.F.R. § 56.18002(a). This standard can be satisfied by a
preshift examination conducted at the beginning of the shift or by an onshift
examination. (Tr. 42:9-24) The standard carries an implicit adequacy requirement.
As the Commission recently explained, the examination must be adequate in the
sense that it must identify the hazardous conditions that would be recognized
by a reasonably prudent competent examiner. Sunbelt Rentals, Inc., 38
FMSHRC _, Docket Nos. VA 2013-275 et al., slip op. at 9 (July 12, 2016).

According to the Respondents, the
competent persons designated by the operator to conduct workplace examinations
at the Castlewood Plant are the shift foremen. (Tr. 60:20-22, 92:24–93:6; Ex.
S-3 at 5; Ex. S-4 at 5) As of the inspection date, there was no written policy
in place for conducting workplace exams. (Ex. S-3 at 3, 6; Ex. S-4 at 3) The
examiners were expected to record the exam results in the mine’s preshift
books, which were kept in a control room until full and then stored in Rose’s
office. (Ex. S-3 at 3, 4; Ex. S-4 at 4; Tr. 64:4-9) Rose, who holds overall
responsibility for safety at the plant, generally reviewed the exam records. (Ex.
S-3 at 3, 6; Tr. 64:1-12)

Order Number 8634340 alleges that proper
workplace examinations were not being conducted at the pelletizer building,
sand plant, and pulverized bagging area. (Ex. S-2 at 1) Both the order and
Inspector Hagy’s contemporaneous Citation/Order Documentation state that Hagy
issued six citations, some for violations that were of a serious nature, at
these locations during the April 11, 2011 inspection. (Ex. S-2 at 1, 5) Hagy
described two of these violations at hearing. The first was the built-up
material throughout the pelletizer plant and the second was a heavy door that
was broken and hanging by one hinge. (Tr. 29:22–30:11) Hagy believed that the
operator had violated § 56.18002(a) because all the violations he cited on
April 11 were obvious, but no action was being taken to correct any of them, and
the only hazard reported in the preceding two weeks’ worth of examination
records was a leak in the roof. (Tr. 27:5-18, 29:17-21) Hagy took pictures of
the examination records for the weeks of March 28 to April 2, 2011, and April 3
to April 9, 2011, which confirm that no hazards were recorded in any areas of
the Castlewood Plant during that timeframe except water leaks. (Ex. S-2 at 6, 7)
In fact, there is no indication that five of the seven areas listed on the
examination forms were actually examined at all. Id. Two of the areas
were marked “OK” on some days, but the boxes where examination results should
be recorded for the other five areas are completely blank. Id.       

I have already found that buildups of
material were present in the pelletizer plant for more than one shift, constituting
“conditions which may adversely affect safety or health” within the meaning of
§ 56.18002(a). I credit Inspector Hagy’s undisputed allegation that he issued
five other violations during the inspection. Rose testified that he and Ball
probably did not notice the broken door because it stays open most of the time
(Tr. 60:8-19), but the Respondents failed to explain why the obvious, extensive
buildups of material were not reported and corrected through a proper workplace
examination or why the exam records do not address any of the other violations
referenced by Hagy. The fact that two weeks’ worth of exam record forms were
left blank for some areas of the plant suggests that these areas may not have
been examined at all. Further, any exam that was performed at the pelletizer
building on the day of the inspection was inadequate in that the examiner
failed to identify and address the obvious, extensive buildups of material. Accordingly,
I find that § 56.18002(a) was violated.     

2.         S&S
and Gravity

Inspector Hagy marked this violation as
S&S and reasonably likely to result in a permanently disabling injury to
one miner. (Ex. S-2) He believed the violation contributed to the same hazard
as Citation Number 8634338, namely, the hazard of a person tripping or slipping
and falling in the buildups of material in the pelletizer plant, leading to
serious injuries such as broken bones. (Tr. 27:19–29:14) He also believed the
door that was hanging by a hinge presented a safety hazard because it could
fall on a miner. (Tr. 29:7-10; Tr. 30:6-8) 

The first element of the Mathies test
for S&S is satisfied because a mandatory safety standard was violated. The
second Mathies element is also satisfied because this violation contributed
to the discrete safety hazards of a miner tripping and falling in the buildups
of material or the heavy door falling on a miner and injuring him. Although the
violation did not itself create these hazards, the operator’s failure to
identify and promptly correct the hazards through a proper workplace exam
contributed to the risk that the hazards would occur and cause injury. I have
already found that, assuming a slip/trip-and-fall accident were to occur in the
pelletizer building, it would be reasonably likely to result in serious injury.
This finding satisfies the third and fourth elements of the Mathies test.
Accordingly, this violation is S&S.

I
find that the gravity of this violation is serious because it was reasonably
likely to result in serious injury to a miner, as discussed above. The
inspector’s gravity designations are consistent with my findings and I uphold
them.

3.         Respondent
Rose’s Liability and Negligence

Superintendent Rose can be held liable
for a “knowing” violation under 110(c) if the examination violation involves
aggravated conduct and he knew or should have known of the violation but
nonetheless authorized, ordered, or carried out the violative conduct.

I find that Rose should have known of
this violation. As the fine grind superintendent at the pelletizer plant, he is
responsible for dust control, daily activities, supervision of the foremen, and
overall safety at the plant. (Ex. S-3 at 2, 5; Tr. 63:22-25, 64:10-12) He
spends 80-90% of his workday in the plant area. (Ex. S-3 at 3) He is also the person
responsible for reviewing the examination records. (Ex. S-3 at 3, 6; Tr. 64:1-3)
Although he was not in the pelletizer building when Hagy inspected it, he was
onsite that day and should have been aware of the buildups of material, given
that they were extensive, obvious, and had been amassing long enough to create
a 63-inch pile in one location, and given that he was responsible for daily
activities and safety at the plant. Given his position and responsibilities, Rose
had a duty to make sure that the foremen he supervised were conducting proper
workplace examinations. He should have recognized their failure to correct the obvious
hazardous conditions in the pelletizer plant, and he should have noticed the
blank spaces in the exam records indicating that his men may not be duly
conducting the required exams. Whether he turned a blind eye to the spotty exam
records and the buildups in the pelletizer plant, or whether he simply failed
to adequately supervise the foremen working beneath him, his actions amounted
to knowing authorization of this violation.

I further find that Rose engaged in
aggravated conduct constituting more than ordinary negligence in knowingly
authorizing the violation. Several aggravating factors contribute to this
determination. As discussed above, this violation posed a serious degree of danger
to miners by virtue of its contribution to the likelihood of a
slip/trip-and-fall accident or other accident stemming from the hazards that were
not identified and corrected through a proper exam. The violation was also
obvious. The widespread presence of built-up material in the plant and the
blank spaces stretching across two weeks’ worth of exam records rendered it
very apparent that adequate workplace exams were not being conducted. The
violation was also extensive in terms of the area affected and the hazards
missed by the examiners. Failure to conduct an adequate exam affects the entire
workplace, and in this case, six violations were permitted to exist because they
were not addressed through a proper workplace exam. Rose should have known of
this violation, yet took no abatement action, even though he could have stopped
production to address the hazards and could have instructed his foreman of the
need to conduct more effective exams. Rose has not identified any significant
mitigating factors. For all these reasons, I find that Rose engaged in
aggravated conduct in connection with this violation,[10]
and he is liable for a penalty under 110(c).

Based on my finding of aggravated
conduct with no mitigating factors, I further find that Rose’s negligence was
high.

4.         Penalty

The Secretary requests that I assess a
penalty of $1,500.00 against Rose for this violation.

As was the case for Respondent Ball, the
parties have not presented any evidence regarding Rose’s income, net worth, or
financial obligations aside from the general fact that he holds a position as
fine grind superintendent at the Castlewood Plant, where he has worked for 35
years. (Resp. Br. 6) Thus, the record does not support specific findings on the
appropriateness of the penalty to Rose’s income and net worth or its effect on
his ability to meet his financial obligations.

The Secretary also has not provided any
information about Rose’s violation history. Rose, like Ball, asserts he does
not have a history of 110(c) violations. (Resp. Br. 6) I accept this assertion.

My findings on gravity and negligence
are discussed in detail above. I further find that this violation was abated
promptly and in good faith, in that the shift foremen at the plant were
retrained on the proper performance of workplace exams within a week of the
violation. (Ex. S-2 at 4) The foremen’s hours were also changed so that they
would have time to perform more thorough workplace examinations. (Ex. S-4 at 7)
In addition, Rose indicated to the MSHA investigator that he began reviewing
the exam records more frequently after receiving this violation. (Ex. S-3 at 3)

After considering the penalty criteria,
I find that $1,500.00 is an appropriate penalty to assess against superintendent
Rose for this serious violation involving high negligence and aggravated
conduct.

ORDER

It is hereby ORDERED that Tim M.
Ball pay a penalty of $1,200.00 and Ricky A. Rose pay a penalty of $1,500.00 within
thirty (30) days of the date of this order.[11]

/s/ L. Zane Gill

L.
Zane Gill

Administrative
Law Judge

Distribution:

Jason
S. Grover, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th
Street South, Suite 401, Arlington, VA 22202

David
M. Toolan, Esq., Oldcastle Law Group, 900 Ashwood Parkway, Suite 600, Atlanta,
GA 30338-4780

[1] MSHA’s Mine
Data Retrieval website shows that Mountain Materials paid a $2,000.00 penalty
for each violation without contesting either one. See U.S. Dep’t of
Labor, MSHA, Mine Data Retrieval System, http://arlweb.msha.gov/drs/drshome.htm.

[2] The Secretary’s
exhibits are labeled Exhibits S-1 through S-5. The Respondents did not submit
any exhibits. Citations to the transcript of the hearing are abbreviated “Tr.” The
parties were directed to submit closing briefs within 30 days of receipt of the
transcript. (Tr. 119:8-14) Because the Secretary filed his brief approximately
10 months after receipt of the transcript, I deem the brief to have been
untimely filed and decline to consider it.

[3] My findings of
fact here and below are based on the record as a whole and my careful
observation of the witnesses during their testimony. In resolving any conflicts
in the testimony, I have taken into account the interests of the witnesses, or
lack thereof, and consistencies or inconsistencies in each witness’s testimony
and between the testimonies of the witnesses. I have also taken into account
each witness’s demeanor. Any perceived failure to provide detail about any
witness’s testimony is not a failure on my part to consider it. The fact that
some evidence is not discussed does not mean that it was not considered. See
Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (holding that
administrative law judge is not required to discuss all evidence, and that
failure to cite specific evidence does not mean it was not considered). I have
also fully considered the contents of the official file.

[4] Hagy has worked
as a metal/nonmetal mine inspector for MSHA since October 2008. To become an
inspector, he completed 6 weeks of field training and 26 weeks of classroom
training at MSHA’s Mine Academy. He has prior industry experience working at a
limestone quarry for 22 years as a drill helper, equipment operator, and plant
manager. (Tr. 9:20–11:25)

[5] Burnett died
prior to the hearing. (Tr. 106:21) The Respondents object to Burnett’s
statements as hearsay. (Tr. 107:1-8) However, hearsay evidence is admissible
under the Commission’s procedural rules. See 29 C.F.R. § 2700.63(a). Moreover,
I rely on Burnett’s statements only to reveal his impressions of the plant as
conveyed to Hagy, not to show whether or not there were buildups of material
and dust at the plant. See Fed. R. Evid. 803(1) (providing that rule
against hearsay does not apply to statements describing present sense
impressions).    

[6] Ball began
working at the Castlewood Plant in 1994, serving as a general laborer and mill
operator before becoming a certified foreman in 2000 or 2001. At the time of
the inspection, he was the second shift foreman for the dust plant. In this
capacity, he supervised five employees and was responsible for conducting
pre-shift examinations, monitoring the plant for potential problems, and
ensuring the safety of his men. (Tr. 72:9-20, 89:2-7; Ex. S-4 at 2)

[7] Rose is the
fine grind plant superintendent at the Castlewood Plant. He began working at
the mine intermittently in 1980 and became a full-time employee in 1984. Over
the years, his duties have included stacking dust, driving a truck, operating a
mill, operating crushers in the crushing plant, and “[doing] everything in the
fine grind plant.” He served as a foreman for 13 years before becoming a
superintendent in 1997. As a superintendent, he directly supervises the plant
foremen, including Ball, and is responsible for daily activities at the mine. (Tr.
47:3-20, 63:11-25; Ex. S-3 at 2)

[8] There is no
physical bin. The term “floor bin” simply refers to a section of the floor that
is designated as a holding area for reject material. (Tr. 57:16-24, 90:15-17)

[9] Consistent with
this finding, it was appropriate for Inspector Hagy to mark the violation as an
unwarrantable failure, which is defined as aggravated conduct constituting more
than ordinary negligence. Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb.
2013); Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987). However, the
unwarrantable failure allegation in the citation is directed against Mountain
Materials, not Respondent Ball, as evidenced by the fact that the Secretary’s
proposed penalty against Ball falls below the $2,000.00 statutory minimum for
unwarrantable failure violations (see 30 U.S.C. § 820(a)(3)(A)), so it is
unnecessary to address the unwarrantable failure determination here. See
Kenneth D. Bowles, 29 FMSHRC 1055 (Nov. 2007) (ALJ Barbour) (declining to
address unwarrantable failure allegation in 110(c) case); Charles Clevinger,
26 FMSHRC 485, 499 (June 2004) (ALJ Feldman) (distinguishing between operator’s
aggravated conduct and individual agent’s aggravated conduct).

[10] As discussed in
footnote 9, my finding of aggravated conduct would support Inspector Hagy’s designation
of this violation as an unwarrantable failure, but the unwarrantable failure
allegation is not relevant here.

[11] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 63179-0390.