Secretary of Labor v. Traylor Mining, LLC

Plain-English summary

A Traylor Mining supervisor walked in front of a Bobcat excavator's blade while the machine was backing away from the face, and an accidentally activated boom struck and seriously injured him. Traylor conceded the violation of its right-of-way rule, the S&S designation, and the gravity findings, but contested high negligence, unwarrantable failure, and the proposed $52,500 special assessment. Judge Richard W. Manning found that the supervisor was Traylor's agent, but credited evidence that entering the danger zone was an isolated event rather than a normal practice and that Traylor had specific rules, training, and enforcement addressing the hazard. He reduced negligence to moderate, vacated unwarrantable failure, modified the citation to section 104(a), and assessed a $1,000 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.9100(a)
• Outcome: The S&S violation and gravity findings were affirmed, negligence was reduced to moderate, unwarrantable failure was vacated, and a $1,000 penalty was assessed.
• Key point: A supervisor's negligence is imputable to the operator, but an isolated, brief violation may fall short of unwarrantable failure when the operator had clear safety rules, substantial training, and credible enforcement.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, CO 80202-2536

TELEPHONE: 303-844-5266
/ FAX: 303-844-5268

October 15, 2015

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner

v.

TRAYLOR MINING, LLC,

Respondent

CIVIL PENALTY PROCEEDING

Docket No. WEST 2014-351-M

A.C. No. 05-00413-341975 X940

Bulldog Mine

DECISION

Appearances:               Beau Ellis, Esq. and Kristi
Henes, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado; Dennis Bellfi, Mine Safety and Health Administration, U.S. Department
of Labor, Denver, Colorado, for Petitioner;

Jason
W. Hardin, Esq., Fabian & Clendenin, Salt Lake City, Utah for Respondent

Before:                                    Judge Manning

This case is before me upon a
petition for assessment of a civil penalty filed by the Secretary of Labor,
acting through the Mine Safety and Health Administration (“MSHA”), against
Traylor Mining, LLC (“Traylor”) pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act). The
parties presented testimony and documentary evidence at a hearing held in
Denver, Colorado, and filed post-hearing briefs. One section 104(d)(1) citation
was adjudicated at the hearing. Traylor is an independent contractor that was
performing work at the Bulldog Mine, which was an underground silver mine in
Mineral County, Colorado.

I.  DISCUSSION
WITH FINDINGS OF FACT

AND CONCOLUSIONS
OF LAW

On June 3, 2013, MSHA Inspector
David M. Sinquefield[1]
issued Citation No. 8597320 under section 104(d)(1) of the Mine Act, alleging a
violation of section 56.9100(a) of the Secretary’s safety standards. (Ex. G-5).
The citation alleges that the production supervisor for Traylor was injured by
the roadheader on a Bobcat excavator when the boom on the excavator was
accidentally activated by the excavator operator as he was backing out of a
mucked out area.

The citation further states that the supervisor was
standing too close to the excavator while observing the mucked out area and, as
a result, he failed to follow established rules governing rights-of-way. The
citation states that the supervisor engaged in aggravated conduct because he
failed to yield the right-of-way to the excavator while it was in operation.

Inspector Sinquefield determined
that an injury was reasonably likely to occur, that the violation was of a
significant and substantial (“S&S”) nature, and that any injury could
reasonably be expected to be fatal. He determined that Traylor’s negligence was
high and that one person would be affected. Section 56.9100(a) provides, in
part, that “[r]ules governing speed, right-of-way, direction of movement, and
the use of headlights to assure appropriate visibility, shall be established
and followed at each mine[.]” 30 C.F.R. § 56.9100(a). The Secretary has
proposed a penalty of $52,500 for this citation under the Secretary’s special
assessment procedure at 30 C.F.R. § 100.5.

The parties, both at hearing and
in their briefs, have represented that Traylor is not contesting the fact of
violation for Citation No. 8597320, nor is it contesting the S&S or gravity
findings of the inspector. (Tr. 6-7; Traylor Br. 1; Sec’y Br. 2). Rather, Traylor
is only contesting the unwarrantable failure and high negligence findings, as
well as the specially assessed proposed penalty amount. Id. Accordingly,
I address only these issues.

My
findings of fact in this decision are based on the record as a whole and my
observation of the witnesses. Although I have not included a summary of all the
evidence presented at the hearing in this decision, I fully considered all of
the evidence.

Discussion and Analysis

Summary of the Evidence

The Bulldog Mine was a single
entry underground mine owned by Rio Grande Silver. Rio Grande Silver was not
involved in the day-to-day operation of the mine. Traylor was contracted to
excavate a new tunnel to intercept old mine workings at the Bulldog Mine. Traylor
began work at the mine in July 2012 and ceased work in September 2013.

Traylor’s typical mining cycle at
the mine involved the drilling of shot holes, loading of shots, blasting,
cleaning up and removing of material, and then providing support. As part of
the cleanup phase, Traylor utilized a Bobcat excavator with a roadheader
attached to the boom to trim the ribs, face, top and floor. The subject roadheader
consisted of a boom-mounted cutting head that
was attached to the Bobcat.

The cited standard requires, in
pertinent part, that mines establish and follow right-of-way rules in order to
provide for the safe movement of mobile equipment. 30 C.F.R. § 57.9100(a). Traylor
had established a rule via a Job Hazard Analysis (“JHA”) for
“[t]rimming/scaling the perimeter with the Bobcat roadheader.” (Ex. G-7 p. 2.).
According to the relevant JHA[2],
in order to prevent the hazard of personnel being struck by the excavator “[n]o
personnel are to be forward of the Bobcat blade while trimming.” The JHA
further states that the equipment operator “shall stop trimming and place
roadheader on the ground if personnel need to be in the area.” Id. Finally,
the JHA provides that the equipment operator must “maintain constant awareness
of his movements and personnel locations.” Id.

On May 29, 2013, Lowell Hicks was
supervising a crew of miners engaged in the cleanup phase of the mining cycle. Michael
Reagan, one of the crew members, was operating the Bobcat excavator with the
roadheader attached. Following a trimming session, Reagan stopped the excavator
and exited the cab so that he and Hicks could evaluate the situation, take
measurements, and see if additional trimming needed to be done. After
determining that additional trimming was needed, Reagan got back into the
excavator and trimmed some additional rock. Hicks stood beside the excavator cab
while Reagan operated it. Reagan then stopped the excavator and again discussed
the situation with Hicks. After determining that no additional trimming was
necessary, Hicks went to the back of the excavator and unhooked the water line.

Joseph Dalton, another miner on
the crew under Hicks’ supervision, then dragged the water line outby so that it
would not be run over while the excavator trammed away from the face. Reagan,
after waiting 20-30 seconds to make sure the water was unhooked, looked over
his left shoulder from in the excavator cab and saw that the hose had been
pulled down the drift and Dalton was rolling it up. (Tr. 189). He saw no other
miners to his left. Reagan then looked over his right shoulder and saw miners
outby the excavator down the drift. While Reagan could not identify the miners
he saw over his right shoulder, he determined that all miners were clear of the
excavator. He then throttled up the excavator, raised the boom, honked three
times, and began to tram backwards.[3]
Meanwhile, Hicks advanced inby on the left side of the excavator. Reagan did
not see Hicks go back inby. After moving only a few feet backwards, the
excavator shifted as it moved over uneven ground. As the excavator shifted,
Reagan turned to his right to look behind him and, in doing so, his right hand accidently
hit the swing lever, causing the boom to swing and hit Hicks and the rib. (Tr.
190). Reagan centered the excavator before noticing Hicks lying on the ground,
at which point he asked Hicks if he had hit him, to which Hicks replied that he
had been hit. As a result of his injuries, Hicks was evacuated from the mine
and ultimately transported to a hospital in Denver.

Inspector Sinquefield traveled to
the Bulldog Mine to investigate the accident involving Hicks. Sinquefield took
notes, photos, and measurements of the scene of the accident. At hearing,
Sinquefield acknowledged that he did not ask Dalton, Reagan, or anyone else at
the mine about Hicks’ normal practice during trimming, and that those
individuals who worked with Hicks would have had firsthand knowledge regarding
his usual practice. (Tr. 69). Sinquefield traveled to Denver the following day to
interview Hicks at the hospital.

Sinquefield testified that Hicks
was lucid, candid, and clear during his interview in the hospital. Sinquefield
documented his interview with Hicks in his notes. (Ex. G-4). Sinquefield,
testifying while reviewing his notes, stated that Hicks told him that during
the production cycle it was normal for him to be forward of the cab during the
cleanup phase. He stated that Hicks told him that the reason he advanced past
the excavator just prior to the accident was because he was “in a hurry[.]” (Tr.
36). Further, the inspector stated that Hicks told him that he “messed up [and
he] shouldn’t have been there while the machine was running.” Id.; (Ex.
G-4 p. 7). At hearing, on cross-examination, Sinquefield, after stating that
there were only inches between the excavator cab and the blade, conceded that
there may have been two feet between those areas. (Tr. 64-65). Further, he
agreed that if Hicks was next to the cab, behind the blade, he would not have
been in violation of the JHA. (Tr. 66-67).

Sinquefield testified that
“anybody forward of the blade” was exposed to the hazard of being hit or run
over by the excavator. (Tr. 44). While he found that Hicks’ exposure to the
hazard was limited in time in this instance, he determined that such an accident
was reasonably likely based on the repeated exposure of the individual since
the violative conduct was a normal practice. Sinquefield acknowledged that, had
this been a “one and done” situation, his finding regarding the level of
exposure may have been different. (Tr. 45). He explained that similar accidents
involving mobile pieces of equipment have been fatal and that Hicks was lucky
to be alive in this instance. (Tr. 47-48).

Sinquefield testified that he
designated the negligence as high because Traylor provided no mitigating
circumstances to explain why it allowed this practice at the mine. (Tr. 48).

Sinquefield designated the
violation as an unwarrantable failure. (Tr. 49). In reaching this
determination, he concluded that the conduct posed a very high degree of danger
given the size and weight of the machine and because Hicks’ conduct was a
normal practice. Based on Sinquefield’s experience and a review of fatalgrams,
he believed that a fatality was likely.  (Tr. 23). He stated that fatalgrams
are of great value to operators who can look at them, decide if they apply to
their mine, and then make sure they take steps to avoid such an accident at
their own mine. He found that the operator had knowledge of the violation
because Hicks, who was a supervisor, admitted to him that he was where he
should not have been, and that this was a procedure that Traylor allowed time
and time again. (Tr. 52-53). Further, he found that the violation was obvious
because Hicks was aware of his position relative to the moving excavator.  (Tr.
55-56). Finally, the inspector found that, with regard to duration, the
violative conduct was a common practice that was repeated each time. (Tr. 57).

Hicks testified that he was hired as
a “walker” at the Bulldog Mine in April 2013. His position was paid hourly and
he did not consider himself to be management, but he was hired in a supervisory
role and directed the work of a crew. (Tr. 156). Prior to being hired, he was
provided a safety manual, which he read and signed before going through several
days of orientation and walkthrough training with his supervisor, Duane Monks. Hicks
recalled being trained on right-of-way and specifically remembered being
trained on the JHA. He testified that, other than the time of this accident, he
could not recall being forward of the excavator blade, it was not normal for
him to move forward of the excavator cab while it was in operation, and that
normally, after trimming, he would have been the one to drag the hose back down
the drift. (Tr. 160-161). Hicks explained that the blade of the excavator was roughly
three to four feet in front of the cab. (Tr. 169). In addition, Hicks testified
that he had never seen any other Traylor personnel forward of the blade during
trimming. Finally, Hicks testified that, while he was not disciplined as a
result of the accident, he has been on workers compensation since the accident,
and Traylor only worked at the Bulldog Mine for three months after the accident.
He was laid off on August 21, 2013. (Tr. R-30).

Both Reagan and Dalton testified
that they worked with Hicks on a daily basis and, with the exception of the
accident, never saw Hicks or anyone else go forward of the excavator blade
while it was operating. (Tr. 187-188, 204). Monks, the mine superintendent and
Hicks’ direct supervisor, testified that he had observed Hicks and other miners
as they worked and that he only saw the miners walk forward of the blade when
the roadheader was on the ground and the equipment was off. (Tr. 229). Neither
David Pease, the project manager for Traylor Brothers, the parent company of
Traylor Mining, nor Monks had ever received a complaint about Hicks acting in
an unsafe manner or in an manner that was inconsistent with the JHA. (Tr. 139,
232).

Traylor’s witnesses testified
that the safety culture at Traylor was good, with routine training regarding
rights-of-way and danger zones, including one day where the mine was shut down
and miners were trained on all of the mobile equipment in the mine, as well as
the specific JHA provision at issue. (Tr. 185, 191, 201-203). Further, they
explained that Traylor’s safety program encouraged miners to report violations
to management, and miners had in the past reported “walkers” for violations. (Tr.
120-121, 207).  Pease testified that Traylor had a discipline program and had
terminated miners, including a “walker,” for safety violations.  (Tr. 120-122).

Reagan explained that, given the
length of the boom on the excavator, a person standing next to the cab would be
safe, as the boom would hit the rib and stop before it would get near an
individual standing next to the cab. (Tr. 187). Reagan also testified that, at
the time of the accident, he was certain he had taken steps to make sure he
knew where everyone was. (Tr. 196). Hicks testified that he did not signal to
Reagan that he was going forward. Reagan was not disciplined as a result of the
accident. (Tr. 196-197).

Both Reagan and Dalton identified
Hicks as their direct supervisor. (Tr. 192, 210). Dalton confirmed that Hicks
had the ability to direct work and reprimand the crew for safety violations,
however he didn’t believe that Hicks had the ability to terminate miners. (Tr.
211). Monks testified that Hicks was in charge of advancing the tunnel and
doing it safely. Pease testified that Hicks, as a “walker,” was charged with
coordinating and supervising the activities on the shift, but also stated that
Hicks did not have authority to hire or fire, but that his input would be given
weight. (Tr. 150-151).

Analysis of Negligence and Unwarrantable Failure

I find that Traylor was moderately
negligent and that the violation was not a result of the operator’s unwarrantable
failure to comply with the mandatory standard. Many of the Secretary’s
allegations with regard to negligence and unwarrantable failure are based on his
assertion that Hicks was an agent of the operator and that the violative
conduct was not an isolated incident, but was normal and occurred on a regular
basis. Based on the analysis below, I find that the Secretary established that Hicks
was an agent of the operator. The Secretary did not establish by a preponderance
of the credible evidence that Hicks regularly walked in front of the blade in
violation of the JHA while the excavator was operating.

The Commission has held that,
while “the negligence of an operator’s ‘agent’ is imputable to the operator for
penalty assessment and unwarrantable failure purposes[,] . . . the negligence
of a rank-and-file miner is not imputable to the operator for” those same
purposes. Nelson Quarries, Inc., 31 FMSHRC 318, 328 (Mar. 2009). The
Mine Act defines an “agent” as “any person charged with responsibility for the
operation of all or part of a coal or other mine or the supervision of miners
in a coal or other mine[.]” 30 U.S.C. § 802(e). In determining whether an
employee is an agent of the operator, the Commission has “‘relied, not upon the
job title or the qualifications of the miner, but upon his function, [and whether
it] was crucial to the mine’s operation and involved a level of responsibility
normally delegated to management personnel.’” Ambrosia Coal & Constr.
Co., 18 FMSHRC 1552, 1560 (Sept. 1996) (quoting U.S. Coal, Inc., 17
FMSHRC 1684, 1688 (Oct. 1995)) (alteration in original); See also Martin
Marietta Aggregates, 22 FMSHRC 633 (May 2000).

I find that Hicks was an agent of Traylor.
Hicks testified that he supervised a crew of miners and directed their work
activity. David Pease, the project manager for Traylor Brothers, confirmed that,
as a “walker,” Hicks was charged with, among other things, supervising,
coordinating, and directing work, training and monitoring employees in the
proper use of tools, and assuring that work was done in a safe manner. (Tr.
150-151). He further confirmed that walkers are able to issue verbal and
written discipline to miners for safety violations and that Hicks’ input would
be given weight in a decision to terminate a miner. Id. Traylor’s other
witnesses confirmed that Hicks was a supervisor. Duane Monks, the project superintendent,
agreed that Hicks was in charge and was the individual responsible for making
sure “the work was done and done safely.” (Tr. 234). In addition to the
testimonial evidence, the parties also introduced documentary evidence that confirms
these supervisory responsibilities. (Exs. G-10, G-11).

While Respondent argues that Hicks
was not an agent because he was paid by the hour, was not a member of Traylor’s
management, could not hire or fire personnel, and was not required to hold
certifications required by law, I find these arguments unavailing in light of
the testimony and documentary evidence discussed above. Traylor Br. 11 n. 5. In
addition, while Hicks may not have had ultimate authority to terminate an
employee, Traylor’s own witnesses confirmed that he was able to discipline
employees and that his input would be given weight in a decision to terminate
an employee. I find that Hicks’ function was crucial to Traylor’s operation,
involved a level of responsibility consistent with that of a person in
management, and that he was an agent of Traylor.

With regard to whether Hicks’
violative conduct was normal and occurred repeatedly or was an isolated
incident, I am persuaded both by the testimony and Respondent’s brief that this
was not a regular occurrence. Traylor, in its brief, argues that the
Secretary’s allegation that Hicks’ violative conduct was normal and occurred
repeatedly is premised upon a misinterpretation of the evidence. Taylor Br.
2-3. Specifically, Traylor argues that the Secretary misinterpreted a statement
made by Hicks to Sinquefield during the interview at the hospital following the
accident.

At hearing, Sinquefield, relying
upon his field notes taken during his interview of Hicks, testified that Hicks
told him that it is Traylor’s normal procedure during the cleanup phase for
Hicks to be at or forward of the cab. (Tr. 36, 61-62, 66; Ex. G-4 p. 7). Traylor
asserts that the Secretary improperly interpreted this to mean that it was
Hicks’ normal practice to be out of compliance with the JHA’s requirement that
personnel be behind the blade of the excavator during the trimming phase. (Ex.
G-7 p. 2). While Sinquefield initially testified that there were only inches
between the cab and the blade on the excavator, he later conceded, after reviewing
an exhibit showing a photo of what he identified as an identical excavator with
a different attachment on the boom, that there could be two feet in distance between
the cab and the blade. (Tr. 63-65; Ex. G-6). Hicks testified that the distance
between the cab and the blade was three to four feet. (Tr. 169). I find that
the photograph, combined with the testimonies of Hicks and Sinquefield, show
that it was possible for Hicks to be “[at] or forward of [the] cab”
while at the same time be in compliance with the JHA’s requirement that he be behind
the blade. (Ex. G-4 p. 7)(emphasis added).

The inspector, on direct
examination, was asked who would be exposed to the hazard of being hit by the
excavator. The inspector replied “[a]nybody forward of the blade, which at this
time was Lowell Hicks.” (Tr. 44). On cross-examination, Inspector Sinquefield conceded
that, if Hicks were behind the blade, there would be no violation.[4] (Tr.
66-67). Accordingly, I find that the statement made by Hicks to the inspector
while he was in the hospital cannot be relied upon by the Secretary to
establish that it was normal practice for Hicks to be in front of the blade of
the excavator and in violation of the JHA. Given that no other credible evidence
was introduced in support of the Secretary’s allegation that it was Hicks’
normal practice to be in front of the blade, I find that the Secretary has
failed to establish that the violative conduct was a common practice. Rather, I
credit the testimonies of Traylor’s witnesses that going in front of the
excavator blade while the excavator was in operation was not a normal
occurrence and, based on the evidence presented, find that the violative
conduct that resulted in Hicks’ injuries was an isolated event. (Tr. 186-187, 140,
204, 206, 229).

Negligence

The Commission has 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 that
standard occurs.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In
determining whether an operator has 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.” Jim Walter Res. Inc.,
36 FMSHRC 1972, 1975 (Aug. 2014) (footnote omitted).

I find that Traylor was moderately
negligent. I have already found that Hicks was an agent of the mine. Accordingly,
his negligence is imputable to the operator for penalty purposes. However, I
find that, while Hicks’ act of going into the danger zone was ill-advised and
resulted in a serious injury, a finding of moderate negligence is appropriate. As
discussed above, much of the Secretary’s case rests on his belief that the
violative conduct was a normal practice. For reasons set forth above, I find
that the Secretary failed to meet his burden of proof on this issue of fact. The
evidence establishes that Traylor took reasonable steps to ensure that miners
did not endanger themselves by walking in front of the blade. It provided
specific training and had in place specific policies to prohibit the exact
conduct that resulted in Hicks’ injuries. Each of the crew members testified
that they were aware of the need to remain behind the blade during trimming and
that it was not the normal practice of anyone, Hicks included, to go in front
of the blade. Moreover, I credit the testimonies of Traylor’s witnesses that
safety violators were appropriately disciplined by this operator. Accordingly,
I MODIFY the citation to moderate negligence.

Unwarrantable
Failure

The unwarrantable failure
terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and
refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined
that unwarrantable failure is aggravated conduct constituting more than
ordinary negligence. Id. at 2001. Unwarrantable failure is characterized
by conduct described as “reckless disregard,” “intentional misconduct,”
“indifference,” or a “serious lack of reasonable care.” Id. at 2002-04; Rochester
& Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck
Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's
unwarrantable failure test). The Commission has explained that whether a
citation is an “unwarrantable failure” is a question that should be evaluated
based on the facts and circumstances in each case, and in light of each of the
following factors: (1) the length of time that the violation has existed; (2)
the extent of the violative condition; (3) whether the operator has been placed
on notice that greater efforts were necessary for compliance; (4) the operator’s
efforts in abating the violative condition; (5) whether the violation was
obvious; (6) whether the condition posed a high degree of danger; and (7) the
operator’s knowledge of the existence of the violation. See Consolidation
Coal Co., 22 FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346
(Dec. 2009). All of the relevant facts and circumstances of each case must be
examined to determine if an actor’s conduct is aggravated, or whether
mitigating circumstances exist. Consol, 22 FMSHRC at 353.

In IO Coal Co., 31 FMSHRC
at 1346, the Commission emphasized that the length of time that the violative
condition existed is a “necessary element” of the unwarrantable failure
analysis. Here, the condition existed only for a very short period of time. As
discussed above, there is no credible evidence that Hicks’ conduct of walking
in front of the blade while the excavator was in operation was a normal
occurrence. Although Hicks’ negligent act resulted in a serious injury, had
Reagan not accidently hit the joystick that caused the boom to swing, the
excavator would have continued proceeding outby past Hicks in a matter of seconds
to the point where Hicks would no longer have been in danger.

In IO Coal Co., the
Commission explained that the “extent of the violative condition is an
important element in the unwarrantable failure analysis.” Id. The
Commission has explained that the purpose of this element is to “account for
the magnitude or scope of the violation[,]” and the judge may analyze it by
looking at, among other things, the “extent of the affected area as it existed
at the time the citation was issued[,]” the number of persons affected, and the
time and resources required to correct the condition.  Dawes Rigging &
Crane Rental, 36 FMSHRC 3075, 3079-3080 (Dec. 2014) (citing E.
Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010) and Watkins
Eng'rs & Constructors, 24 FMSHRC 669, 681 (July 2002)); Consolidation
Coal Co., 35 FMSHRC 2326, 2331 (Aug. 2013). Moreover, a judge should not
consider an operator’s past practices in connection with the extensiveness
factor. Id. In Dawes Rigging the Commission found that, because
only one miner endangered himself by walking under a suspended boom, the
violation was not extensive. Id. Here, the Secretary did not directly
address the extent of the violation in his post-hearing brief but, at hearing
in his opening statement, the Secretary averred that, while only one miner was
injured, other miners were affected because these employees saw that their
supervisor believed “that breaking the rules was okay, until it isn’t and you
get hurt.” (Tr. 11). I find that the violation was not extensive in that it involved
only one miner and was an isolated incident affecting only a small area.

The Commission has explained that
repeated similar violations, even if those prior violations were not a result
of an unwarrantable failure, and past discussions with MSHA about a problem at
the mine may serve to put an operator on notice that increased efforts to
comply are necessary. IO Coal Co., 31 FMSHRC at 1353-1354. The Secretary
concedes that MSHA had not previously cited Traylor for a violation of the
standard or discussed the issue with Traylor. He argues that fatalgrams
describing mobile equipment accidents put Traylor on notice that increased
efforts to comply were necessary. Sec’y Br. 12-13. I reject this argument. The
rationale underlying this aggravating factor is whether the operator has been put
on notice of a problem at its mine that requires additional efforts to comply. Here,
the Secretary did not establish that Traylor had been put on notice that
increased efforts were necessary.

In evaluating the operator’s
efforts in abating the violative condition the judge should examine those
abatement efforts made prior to the issuance of the citation or order. Consolidation
Coal Co., 35 FMSHRC 2326, 2342 (Aug. 2013) (citing IO Coal Co., 31
FMSHRC at 1356 and Warwick Mining Co. 18 FMSHRC 1568, 1574 (Sept.
1996)). The Secretary did not directly address this factor in his brief. Traylor
asserts that, while there was no opportunity to abate this condition in the
time between when Hicks entered the danger area and when he was hit, the
operator did make “considerable, meaningful efforts on its own initiative to
abate, eliminate and prevent right-of-way rule violations in advance of
issuance of the Citation[.]” Traylor Br. 12. I agree that Traylor took steps to
prevent just this type of accident from happening. The JHA is clearly written
and indicates that, in order to avoid the hazard of an individual being struck
by the Bobcat excavator while it was trimming, no person should be forward of
the blade. (Ex. G-7 p.2). Further, Traylor provided substantial training in the
form of orientation training, daily safety meetings, and even a full day
training on all of the pieces of mobile equipment, each of which addressed the
mine’s right-of-way rules and the JHA at issue. Moreover, although the
Secretary asserts that Traylor did not enforce its right-of-way rules or
discipline miners for safety violations, I find the contrary to be true. Traylor
offered credible testimony that one of the reasons Hicks was hired was because
the previous walker was terminated after committing a safety violation. (Tr.
120). While the Secretary asserts that Traylor’s failure to take disciplinary
action against Hicks or Reagan is evidence of a lack of safety enforcement, I
disagree. Sec’y Br. 9. Hicks never returned to the mine following the accident
and it is debatable whether Reagan’s involvement in the accident amounted to safety
violation. Reagan offered credible testimony that he did check his surroundings
before backing up. As a result, I find that Traylor did in fact enforce its
safety program.

The obviousness of the violative
condition is an important factor in the unwarrantable failure analysis. IO
Coal Co., 31 FMSHRC at 1356. The Secretary argues, and I agree, that the
violative condition was obvious. Hicks was well aware of the need to remain
behind the blade of the excavator while it was in operation. Sinquefield
testified that the only item in his notes from the interview of Hicks which was
a direct quote was Hicks’ statement that he “messed up” and knew he “shouldn’t
have been there while the machine was running.” (Tr. 36, 62; Ex. G-4 p. 7). Moreover,
the area was lit, Hicks knew his position relative to the excavator, the equipment
operator signaled via honking that he was preparing to move, and the backup
alarm would have sounded. I find that the violation was obvious.

The Commission has determined that
a high degree of danger posed by a violation is an aggravating factor that supports
an unwarrantable failure finding. IO Coal Co., 31 FMSHRC at 1355-1356. The
Secretary argues and Respondent concedes that the violative conduct presented a
high degree of danger. I agree. Hicks’ conduct and the resulting injuries
including internal bruising and a slight fracture, are evidence of the high
degree of danger that accompanies this type of conduct. (Ex. G-10). Moreover, I
credit the inspector’s testimony that, given the proximity of the miner to such
a large, heavy machine, and the history of fatalities when mobile equipment
comes into contact with miners, Hicks “was very lucky not to be dead.” (Tr.
48-49).

In IO Coal, the Commission
reiterated the well settled law that, in addition to actual knowledge, an
operator’s knowledge of the existence of a violation may be established where
the operator “reasonably should have known of the violative condition.” 31 FMSHRC
at 1356-1357. Here, I find that, because Hicks was an agent of the operator and,
given his acknowledgement that he knew he should not have been in area, the
operator had actual knowledge of the violation. (Tr. 36, 62; Ex. G-4 p. 7).

After careful consideration of each
of the above factors, I find that Traylor did not unwarrantably fail to comply
with the mandatory standard. While the violative condition was obvious,
potentially involved a high degree of danger, and was known to the operator
through its agent, it was not extensive, did not exist for a long period of
time, the operator did not have notice that greater efforts were necessary for
compliance, and it had taken significant steps towards preventing an accident
of just this kind. Accordingly, I VACATE the unwarrantable failure
finding and modify the citation to a 104(a) citation.

II.  APPROPRIATE
CIVIL PENALTY

Section 110(i) of the Mine Act
sets forth the criteria to be considered in determining an appropriate civil
penalty. Traylor had a history of two violations during the 15 months preceding
the issuance of subject citation, neither of which was designated as S&S,
high negligence, or unwarrantable failure. (Ex. G-1). Respondent is a small
independent contractor that worked about 16,361 hours. (Exhibit A to Petition
for Assessment of Civil Penalty). The violation was abated in good faith. The
penalty assessed in this decision will not have an adverse effect upon its
ability to continue in business. The Respondent stipulated to the Secretary’s
gravity finding that the violation was reasonably likely to result in a fatal
accident, that one person was affected, and that the violation was S&S. The
negligence findings are set forth above.

While the Secretary offered testimony
and documentary evidence in support of his special assessment, given that I
have modified the citation to a 104(a) citation with moderate negligence, I
need not address those arguments. The Secretary did not establish that this
violation was “particularly serious or egregious[.]” Coal Employment Project
v. Dole, 889 F2d. 1127, 1129-30 (D.C. Cir. 1989). The Special Assessment
Narrative Form introduced into evidence at hearing shows that, had this
citation been regularly assessed, the penalty would have been $2,000.00. (Ex.
G-14 p. 3). Moreover, if Inspector Sinquefield had determined that the
violation was the result of Traylor’s moderate negligence, the Secretary’s
proposed penalty would have been about $436.00, before any reduction for good
faith abatement. 30 C.F.R. § 100.3. In light of my findings set forth above, I find
that a penalty of $1,000.00 is appropriate for this violation. I have given
special consideration to the gravity of the violation in assessing this penalty.

III.  ORDER

For the reasons set forth above, Citation
No. 8597320 is MODIFIED to a citation issued under section 104(a) of the
Mine Act and the degree of negligence is reduced to moderate. In all other
respects the citation is AFFIRMED. Traylor Mining, LLC. is ORDERED TO
PAY the Secretary of Labor the sum of $1,000.00 within 30 days of the date
of this decision. [5]

/s/
Richard W. Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Beau Ellis, Esq., Office of the Solicitor, U.S.
Department of Labor, 1244 Speer Blvd., Suite 515, Denver, CO 80204-3516
(Certified Mail)

Jason W. Hardin, Esq., Fabian & Clendenin, 215
South State St. Suite 1200, Salt Lake City, UT 84111-2323 (Certified Mail)

RWM

[1] Inspector Sinquefield has been with MSHA for over
eight years. He has investigated accidents as well as hazard complaints. Prior
to his employment with MSHA, he worked in the mining industry from 1976 to
2003. He is trained as a mechanic and has worked on, and operated, numerous
pieces of mobile equipment.

[2] At hearing, the Secretary introduced a second JHA,
(Ex. G-8 p. 21), and seemingly planned to allege that Respondent had also
violated this JHA. However, the Secretary did not advance that theory in his
brief and, as noted by Respondent in its brief, Exhibit G-8 does not apply to
the case at hand. Traylor Br. 1-2 n. 1.

[3] Reagan testified that the Bobcat excavator was
equipped with a backup alarm, which was loud enough to hear over the operation
of the equipment, and lights on the front and back, which were bright enough to
see where he was going and provided some bleeding light to the sides of the
excavator. (Tr. 193). Further, he explained that, because of the length of the
boom, the excavator could not spin around and drive out forward. Rather, it had
to tram backwards to exit the face area. (Tr. 193-194).

[4]
The citation charges Traylor with a violation of
section 57.9100(a) because it was not following its established right-of-way
rules as set forth in the JHA. Whether the JHA sufficiently protected miners
working around the excavator while it was engaged in trimming operations is not
an issue that is before me.

[5] Payment should be sent to the Mine Safety and Health
Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St.
Louis, MO 63179-0390.