Secretary of Labor v. Ash Grove Cement Company

Read the official release (fmshrc.gov)

Plain-English summary

Ash Grove Cement runs the Seattle Plant, a cement operation in King County, Washington. MSHA issued four citations in 2014, two from a regular inspection and two after a customer's truck driver was seriously hurt falling from a trailer ladder. The judge vacated the workplace examination citation: the Secretary did not prove the elevators and their hoisting equipment were "working places," and separately, Ash Grove had no fair notice that MSHA read the standard to require its own exams on top of the contractor's elevator inspections. The falling-material citation stood, upheld as serious with moderate negligence, for limestone dropping about 45 feet from a conveyor onto a travelway with no guards. The late-notification citation also stood: the company learned of the accident at 2:00 p.m. and did not call MSHA until 2:43, past the 15-minute deadline, and the judge had to impose the $5,000 statutory minimum. The accident-scene preservation citation was upheld but its negligence cut from high to moderate. Two of the penalties were reduced because Ash Grove's violation rate was below the industry average. Total, $7,500.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.18002(a), 30 C.F.R. § 56.14110, 30 C.F.R. § 50.10(b), 30 C.F.R. § 50.12
• Outcome: Citation No. 8780591 vacated; Citation Nos. 8611830 and 8780422 affirmed as written; Citation No. 8780423 modified to reduce negligence from high to moderate; $7,500 total penalty due in 30 days
• Key point: An operator can beat a citation for lack of fair notice where MSHA's reading of a standard was not apparent, but the 15-minute accident-reporting rule carries a $5,000 statutory minimum a judge has no power to reduce.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004

Telephone No.: (202)
434-9900 / Fax No.: (202) 434-9949

SECRETARY
OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner

v.

ASH GROVE CEMENT COMPANY,

Respondent

CIVIL
PENALTY PROCEEDINGS:

Docket No. WEST 2014-963

A.C. No. 45-00359-356120

Docket No. WEST 2015-503

A.C. No. 45-00359-375229

Docket No. WEST 2015-523

A.C. No. 45-00359-377531

Mine: Seattle Plant

DECISION

Appearances:               Daniel
Brechbuhl, Esq., Office of the Solicitor, U.S. Department of Labor, Denver,
Colorado, for Petitioner

John
Nelson, Esq., Ash Grove Cement Company, Overland Park, Kansas, for Respondent

Before:                        Judge
Barbour

These cases are
before me upon three Petitions for the Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health
Administration (“MSHA”) under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (“the Mine Act” or “the Act”). 30 U.S.C. § 815(d). Between
May and August 2014, the Secretary issued four citations to Respondent, Ash
Grove Cement Company (“Ash Grove”), for alleged violations of 30 C.F.R. §§ 56.18002(a),
56.14110, 50.10, and 50.12 at its cement plant (the “Seattle Plant”), which is located
in King County, Washington. [1]
Ash Grove filed an answer denying the violations occurred, or if they did, challenging
the Secretary’s gravity and negligence findings and his proposed civil
penalties.

Despite their
good faith efforts the parties were unable to settle any of the citations and
the cases were tried in Seattle, Washington. The parties presented testamentary
and documentary evidence and filed post hearing briefs.

I.           
Stipulations

1.     
During all times relevant in this matter, Ash Grove was the “operator”
as defined in Section 3(d) of the Mine Act, at the Seattle Plant.

2.     
Between May 22, 2014, and August 4, 2014, MSHA inspected the [plant].

3.     
The individuals whose signatures appear on Block 22 of the citations
were acting in their official capacities and as authorized representatives of
the Secretary when the citations were issued.

4.     
True copies of the citations were served on Ash Grove as required by the
Mine Act.

5.     
The certified copy of the MSHA Assessed Violations’ History reflects the
history of the citation issuances at the Mine for the 15 months preceding the
citations at issue and may be admitted into evidence without objection by Ash
Grove.

6.     
Ash Grove demonstrated good faith in the abatement of the citations.

7.     
Payment of the proposed penalties will not affect Ash Grove’s ability to
remain in business.

Tr. 248-249, 250.

II.           
The Mine and Citations

Ash Grove has nine manufacturing
locations in the Midwest, West and Northwest. Tr. 106. Ash Grove’s Seattle
Plant is primarily used to process limestone and other components used to make
cement. Tr. 22. Limestone is a rocky and sometimes powdery material that is
milled and mixed with other products in a kiln as part of the cement making
process. Tr. 23. The plant operates 24 hours a day, every day of the year, in
two, twelve hour shifts. Tr. 22. The plant is an extensive operation with a
barge for loading and unloading, a kiln, various milling processes, maintenance
and repair shops, and roads for both vendor and company trucks to access
various parts of the plant. Tr. 23.  

Citation Nos. 8780591 and 8611830
were served upon Ash Grove on May 22, 2014, and May 28, 2014, respectively, as
a result of a regular MSHA inspection of the plant. Citation Nos. 8780422 and
8780423 were served upon Ash Grove on August 4, 2014, as a result of MSHA’s
investigation of an accident that injured an employee of a plant customer. The
citations involve different standards and distinct factual circumstances and as
such will be addressed in turn.

III.           
Factual and Legal Analysis

A.   
      Citation No. 8780591, Docket No. WEST 2014-963

On May 22, 2014,
MSHA Inspector Michael Nelson arrived at the plant to conduct a regular inspection.[2] Tr. 21. Nelson
maintained that during the inspection he observed various hazardous conditions
including, “unprotected openings,” unlabeled electrical panels, insufficiently
illuminated areas, several “housekeeping issues,” and “slip/trip” hazards. Tr.

38. Many of the alleged hazards were located at or near elevators and hoisting
    equipment.[3]
    Tr. 38

When Nelson asked a company
representative for examination records of the areas where he observed the
alleged hazards, he received records that he described as “extremely vague.”[4]

Tr.
38-39. Also, according to Nelson, there were several days and shifts with no
workplace examination records, which indicated to Nelson that no workplace
examinations had been conducted on those days and shifts. Tr. 36.

Nelson spoke to
Gerry Brown, Ash Grove’s Health and Safety Manager, regarding the workplace
examinations, or lack thereof. [5]
Tr. 31. Brown indicated that there was no procedure in place for workplace
examinations on elevators or adjacent areas because Ash Grove relied solely on
inspections conducted by its contractor, Otis Elevator. Tr. 31.

Because of the
hazards noted and the lack of consistent workplace examinations, Nelson issued Citation
No. 8780591 to the company for an alleged violation of 30 C.F.R. § 56.18002(a),
a regulation requiring the examination of a working place at least once per
shift.[6]
The citation states:

Complete
workplace exams had not been conducted and hazards [were] noted in several
areas of the mine. The operator presented records of some workplace exams being
conducted but there were many obvious hazards evident at the mine during the
inspection. Hazards identified had existed for more than one shift. Were miners
to have accidents due to unabated hazards at the mine, serious injuries would
occur.

G.
Ex. 3.

Nelson
found that the alleged violation was “reasonably likely” to result in “lost
workdays or restricted duty,” that one person was affected, and that the
violation was the result of Ash Grove’s “high negligence.” He also found that the
alleged violation was a significant and substantial contribution to a mine
safety hazard (an “S&S” violation).[7]
G. Ex. 3.

Inspector
Richard Dreyer[8]
modified the citation on June 16, 2014, to add the following statement:

Additionally,
the operator did not have an established procedure or requirement for
conducting workplace exams, or daily operational inspection and testing of
hoisting equipment of the five elevators in use at this site.

The
citation, as amended, further reads:

The purpose of
this modification is to include the elevator exams as additional areas cited
for failure to complete workplace exams.

G.
Ex. 3.[9]

Ash
Grove terminated the citation by retraining miners and shift supervisors on
workplace exams including elevator checks. G. Ex. 3.

1.     
Fact of The Violation

As written,
Citation No. 8780591 is a two-part citation. Tr. 35-36; G. Ex. 3; R. Br. 4. The
Secretary originally cited Ash Grove for incomplete workplace examinations, and
the modification to the citation more specifically alleges inadequate
examinations of the plant’s hoisting equipment. G. Ex. 3. Essentially, the
citation is grounded on: 1) allegedly incomplete workplace exams in various
parts of the mine, and 2) the failure to examine the plant elevators’ hoisting
equipment. The citation will be analyzed accordingly.

a.     
The First Prong of 8780591

In charging Ash
Grove with a violation of Section 56.18002(a), the citation alleges that Ash
Grove failed to conduct complete workplace examinations as evidenced by the
hazards that Nelson identified in his inspection. The citation states that although
Ash Grove presented some examination records there were still “obvious hazards”
evident. G. Ex. 3.

Section
56.18002 requires that a competent person designated by the operator examine
each working place once per shift for hazardous conditions and that the
operator initiate “appropriate action” to remedy those conditions. 30 C.F.R. §
56.18002. The Commission has held that “[t]he pertinent requirements of 30 C.F.R. §
57.18002 are three-fold: (1) daily workplace examinations are mandated for the
purpose of identifying workplace safety or health hazards; (2) the examinations
must be made by a competent person; and (3) a record of the examinations must
be kept by the operator. FMC Wyoming Corp., 11 FMSHRC 1622, 1628 (Sept.
1989).[10]
Additionally, in a recent case, the court has set forth its understanding of
Section 56.18002(a) and what the Secretary must do to prove a violation.

[A]s the court
understands the standard, it applies to places where work is being performed
during a shift, where work is assigned to be performed during a shift, or where
work can reasonably be expected to be performed during a shift . . . . To prove
a violation the Secretary must show that a designated competent person did not
conduct any such examinations either on the shift during which the inspection
was conducted or did not perform any such examinations during a specifically
identified prior shift.

Cemex
Construction Materials, Atlantic, LLC, 38 FMSHRC ___, slip op. at 13, No. SE
2014-328-M (Apr. 29, 2016).

Here, the court
finds that the Secretary has not met his burden of proof. The Secretary’s allegations as to the incomplete
examinations are so vague they fail for lack of specificity. Section
56.18002(a) requires specificity in that it applies to “each working place.” As
discussed above, the court has held that in order to prove a violation, the
Secretary much show that a designated competent person did not conduct a
workplace examination on 1) the shift during which the inspection occurred, or 2)
during
a specifically identified prior shift. Cemex Construction Materials,
Atlantic, LLC, 38 FMSHRC ___, slip op. at 13, No. SE 2014-328-M (Apr. 29,
2016).

Nelson did not
describe the hazards observed during his inspection, and he did not link a
hazard observed in a specific area with a failure to designate a competent
person to perform an examination of the area. Nor did the Secretary establish through
direct and circumstantial evidence that required examinations were not done, or
if they were done, that a competent person did not conduct them. In fact, Nelson
conceded that inspections were done, albeit not well recorded. Tr. 36. As Ash
Grove notes in its brief, Nelson himself agreed he did not give any specific
testimony as to specific areas that were not examined. Tr. 67; R. Br. 3.
Nor did Nelson offer testimony as to the precise hazards observed, and what
should have been written in an examination record had Ash Grove complied with
the standard. See e.g., Tr. 38-40.

In sum, the
court concludes there is insufficient evidence to prove that Ash Grove performed
incomplete workplace examinations as alleged in the first prong of Citation No.
8780591. This leaves the later amended portion of the citation to be addressed.

b.     
The Second Prong of Citation No. 8780591

The second prong
of Citation No. 8780591 alleges that Ash Grove did not have an established
procedure or requirement for conducting workplace exams or inspections and
testing of the hoisting equipment on the mine’s elevators. G. Ex. 3, p. 2.  The
Secretary argues elevators are “working places,” requiring examinations, as
anticipated by § 56.18002(a), and that Ash Grove’s admitted failure to inspect
elevators constitutes a violation of the standard. G. Br. 6-11. The Secretary
also argues that the operator had fair notice of the standard’s requirements as
applied to elevators. G. Br. 10-11. The Respondent counters that elevators are
not “working places,” and further that it did not have notice that regular
inspections of elevators were required under § 56.18002(a). There are two relevant
issues that must be analyzed when addressing the second prong of 8780591. They are
whether the Secretary has proven that hoisting equipment of each of the five elevators
is a Section 56.18002(a) “working place,” and whether Ash Grove had fair notice
of MSHA’s interpretation of the standard. The court finds that the second prong
of the citation fails because the Secretary did not prove that the hoisting
equipment is a working place and also because affirming the citation would
deprive the operator of due process.

A précis of the
background of the Secretary’s “elevator examination” requirement is helpful before
addressing the alleged violation. In February 2014 a fatality involving an
elevator occurred at a cement plant located in the eastern United States. Tr.
30, 47. An employee working at the plant called an elevator. The doors opened,
although the elevator car was not at the landing. Tr. 30. The employee stepped
into the empty shaft and fell about 50 feet down the shaft. The employee died
from his injuries. Tr. 30. In response, MSHA gave specific training regarding
elevator inspections to all of MSHA’s non-metal inspectors. Tr. 30, 47. Later
that month, MSHA also issued a “fatalgram” regarding this incident.[11] Tr. 47,
109; Jt. Ex. 3. Nelson testified that after the incident MSHA emphasized checking
elevators during inspections. Tr. 47.

c.      
The Secretary Failed to Prove that the Cited Elevator Hoisting
Equipment is a Section 18002(a) “Working Place”

Whether
§ 56.18002(a) applies to elevators depends on the definition of “working place”
in the standard, and whether the definition subsumes mine elevator hoisting
equipment. Working place” is defined in the standard as “any place in or about a mine where work is being
performed.” 30 C.F.R. § 56.2. MSHA’s Program Policy Manual regarding
workplace examination states:

The phrase “working
place” is defined in 30 C.F.R. §§ 56/57.18002(b) as: “any place in or about a
mine where work is being performed.” As used in the standard, the phrase applies
to those locations at a mine site where persons work during a shift in the
mining or milling processes.

Jt. Ex. 1

Ash Grove
contends that the elevators involved in the inspection were not “working
places” because work was not being done at the time of the MSHA inspection. R.
Br. 9-10.  Ash Grove asserts that the plain language of “working place” as
defined in § 56.2 clearly exempts the elevators mentioned from the standard
because there was no evidence that work was being done on the elevators at the
time the citation was issued and that the hoisting equipment mentioned by
Nelson was in a room near the elevator, a room that is not considered a “public
place.” R. Br. 10.  

The
Secretary argues that the standard applies to the landing area, the inside of
an elevator car, and in a limited capacity to the hoisting area and pit areas that
are generally used only by licensed contractors. G. Br. 6-7. [12] The
Secretary argues that the term “working places” applies to Ash Grove’s
elevators “because miners perform work [on the elevator] by moving equipment,
supplies, and themselves throughout the floors of the buildings.” G. Br. 10. The
Secretary states that his interpretation and MSHA’s application of the standard
are “reasonably clear.” G. Br. 6.  

As
the court stated in Cemex, there is no duty to “examine all elevators
simply because they are elevators.” Cemex, 32 FMSHRC at 13 (ALJ). Here, Ash
Grove was charged with failing to examine the “hoisting equipment of the five
elevators . . . at [the plant].” Gov. Exh.3. Therefore, the Secretary must show
that the cited parts, in this case, the hoisting equipment of each of the five
elevators, and the adjacent areas are working places, i.e., places “where “work-related
task[s]” involving the hoisting equipment “[were] being performed, [were] assigned
to be performed but not yet started, or where such . . . task[s] reasonably
could be expected to be performed.” Id. at 14.

The
Secretary’s evidence does not meet this test with regard to the hoisting
equipment and the adjacent areas on any of the five elevators. Nelson did not
testify as to the specific elevator hoisting equipment where he observed safety
hazards, nor did he testify what work was being performed (or expected to be
performed) in the areas where the equipment was housed to bring any of them
under the ambit of a “workplace.” Since he failed to meet the first step of identifying
a working place, Nelson’s subsequent failure to identify a specific shift where
a failure to examine occurred is inconsequential.

Curiously,
Nelson himself vacillated in regards to which of Ash Grove’s elevators are
working places. The narrative portion of Citation No. 8780591 alleges that
“[t]he operator did not have an established procedure or requirement for
conducting workplace exams, or daily operational inspection of the five elevators
in use at this site.” G. Ex. 3, p. 2 (emphasis added). Nelson testified that he
considered landings, hoisting rooms, and places that miners would travel or
work on an elevator to be working places. Tr. 29. The court asked if there were
such areas involved with all five of Ash Grove’s elevators. Tr. 29. Nelson
testified that the passenger elevators in the administrative building would be an
exception. Tr. 29. If so, then apparently only the three elevators in the plant
area that transported both miners and freight should have been included in the
citation. The court continues to be of the opinion that rather than try to make
Section 56.18002(a) fit all elevators, the Secretary would be “well advised” to
promulgate a mandatory standard “specifically directed to the . . . examination
of . . .elevators.” Cemex Inc., 32 FMSHRC __, slip op. at 14, n.
14.

The court theretofore
concludes the Secretary has not established a violation with regard to the
second prong of the citation, because he has not met the burden of proving that
the cited elevators and their hoisting equipment were “working places” as
anticipated by Section 18002(a). However, even if the court held otherwise, it
would still vacate the citation on due process grounds.

2.     
Fair Notice Analysis

Due process considerations
require that the court analyze whether Ash Grove had notice of MSHA’s
interpretation of Section 56.18002(a). Ash Grove posits that it lacked fair
notice of the Secretary’s interpretation of the standard as applied to elevators.
R. Br. 12. The Secretary, anticipating a fair notice argument, states that Ash
Grove had fair notice in that it should have known to complete basic visual
inspections on elevators, that the term “working place” applies to the
elevators because miners use them to move themselves and equipment and supplies,
and that MSHA put the mining industry on notice by publishing a “fatalgram.” G.
Br. 10-11.

The Commission
has held that “before a civil penalty may be imposed, due process
considerations preclude the adoption of an agency's interpretation which ‘fails
to give fair warning of the conduct it prohibits or requires.’” LaFarge
North America, 35 FMSHRC 3497, 3500 (Dec. 2013), quoting Gates
& Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986). This fair
notice requirement is deemed satisfied when a party has received actual notice
of MSHA's interpretation of a regulation prior to enforcement of the standard. LaFarge
North America, 35 FMSHRC 3497, 3500 (Dec. 2013); Consolidation Coal Co.,
18 FMSHRC 1903, 1907 (Nov. 1996). In the absence of receiving actual notice of
the Secretary’s interpretation, a respondent may be held to have fair notice if
“a reasonably prudent person familiar with the mining industry and protective
purposes of the standard would have recognized the specific prohibition or
requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov.
1990).

A respondent has
fair notice of the Secretary’s interpretation of a standard, justifying its
enforcement, when either: (1) the plain language of the cited standard is clear
and unambiguous; (2) the Secretary has issued guidance regarding its interpretation
of the standard; (3) the company was given pre-enforcement warning; (4)
previous citations were issued to the mine; or (5) a reasonably
prudent person familiar with the mining industry and the protective purposes of
the standard would have recognized the standard’s specific prohibition or
requirement. Wolf Run Mining Co., 32 FMSHRC 1669, 1682 (2010); Lodestar
Energy, Inc., 24 FMSHRC 689, 694-95 (July 2002); Island Creek., 20
FMSHRC at 24-25; Morton Int'l, Inc., 18 FMSHRC 533, 539 (Apr. 1996); General
Elec. Co. v. EPA, 53 F.3d 1324, 129 (D.C. Cir. 1995); Ideal Cement Co.,
12 FMSHRC 2409, 2416 (Nov. 1990). These five fair notice facets will be reviewed
in turn.

a.      
Whether the Language of the Standard is Clear

The fair notice
analysis begins with the language of the standard, and whether this language is
clear enough to provide the regulated entity, Ash Grove, with notice of the
Secretary’s interpretation. When the plain language of a standard is clear and
unambiguous, the Commission has held that the standard provides operators with
fair notice. Dynamic Energy, Inc., 32 FMSHRC 1168, 1172 (Sept. 2010); Bluestone
Coal Corp., 19 FMSHRC 1025, 1031 (June 1997).

Neither the Secretary nor Ash Grove
asserts that the language of Section 56.18002(a) is ambiguous. However, they
each offer diverging interpretations of the term “working place.” Cf. G.
Br. 10; R. Br. 10. The Secretary asserts that Ash Grove had notice that workplace
examinations were required on elevators, because they were “working places,” by
virtue of miners using elevators for “moving equipment, supplies, and
themselves throughout the floors of the building.” G. Br. 10. Conversely, Ash
Grove avers that the definition of “working place in Section 56.2 indicates
that the cited elevators were not working places, that there is no evidence
that work was being performed in elevators at the time of the MSHA inspection,
and that the hoisting equipment at issue was in a room that was not considered
a “public place.”

The
Commission has held that competing reasonable interpretations of the plain
language of a regulation indicate that its language may be ambiguous. Walker
Stone Co. v. Secretary of Labor, 156 F.3d 1076, 1081 (10th Cir. 1998). See
also Alco Alumina & Chemicals, L.L.C., 23 FSMRHC 911 (Sept. 2001). The
court finds this to be the case.

When
the meaning of a standard is ambiguous, the Secretary's interpretation of his
own regulation is sometimes accorded deference. See Auer v. Robbins, 519 U.S. 452
(1997); Udall
v. Tallman,
380 U.S. 1, 16-17 (1965) (finding that reviewing body must “look to the
administrative construction of the regulation if the meaning of the words used
is in doubt”); Dynamic Energy, Inc., 32 FMSHRC 1168, 1171-72 (2010). However,
deference is inappropriate if the agency’s interpretation is not reasonable or
when it is “plainly erroneous or inconsistent with the regulation” or “when
there is reason to suspect that the interpretation does not reflect the
agency’s fair and considered judgment on the matter.” Christopher v.
SmithKline Beecham Corp., __ U.S. , , 132 S. Ct. 2156, 2166 (2012)
(internal quotations omitted) (citing Auer, 519 U.S at 462). This occurs
when, for example, the agency's interpretation conflicts with a prior
interpretation. See, e.g., Thomas Jefferson Univ. v. Shalala,
512 U.S. 504, 515 (1994).[13]
Deference to an agency’s interpretation in some circumstances is not required,
if doing so could create “unfair surprise” or “seriously undermine the
principle that agencies should provide regulated parties ‘fair warning of the
conduct [a regulation] prohibits or requires.’” Christopher v. SmithKline
Beecham Corp., __
U.S. , , 132
S. Ct. 2156, 2167 (2012) citing Gates & Fox Co. v. Occupational Safety
and Health Review Comm'n, 790 F.2d 154, 156 (D.C. Ct. App. 1986).

The
Secretary’s interpretation that some elevators, their hoisting equipment and areas
adjacent thereto are working places is a plausible reading of the standard, but
not the only such reading. Moreover, an agency’s interpretation may be
reasonable or permissible, but still fail to provide the operator fair notice. General
Electric Co. v. EPA, 53 F.3d 1324, 1333-34 (D.C. Cir. 1995); Phelps Dodge
Corp. v. FMSHRC,
681 F.2d 1189, 1193 (9th Cir. 1982). Due process requires that regulations be
sufficiently specific to “give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited.” Grayned v. City of Rockford,
408 U.S. 104, 108 (1972).

The court concludes that the language of
Section 56.18002(a) did not give Ash Grove actual notice of the Secretary’s
interpretation. Deference will not be accorded because doing so would result in
an “unfair surprise” to Ash Grove, in an affront to due process requirements.

b.     
The Agency’s Guidance Regarding Work Place Examinations

Having found that
the standard is ambiguous and that deference to the Secretary’s interpretation
is inappropriate, another step in the fair notice analysis is necessary. An
agency may also put a party on notice by issuing public statements and guidance
regarding a regulation. When an agency gives no pre-enforcement warning, and
instead uses a citation to announce its interpretation of a regulation, “[i]f,
by reviewing the regulation and other public statements
issued by the agency, a regulated party acting in good faith would be able to
identify, with ascertainable certainty, the standards with which the agency
expects parties to conform, then the agency has fairly notified a petitioner of
the agency's interpretation.” General Electric Co. v. U.S. EPA, 53
F.3d 1324, 1329 (Ct. App. D.C. 1995).

The Secretary
contends in the instant case the fatalgram regarding the injury and death caused
by a malfunctioning elevator was sufficient to charge Ash Grove with actual
notice of the Secretary’s interpretation of the workplace examination standard.
G. Br. 10; Jt. Ex. 3. According to Nelson, fatalgrams are “disseminated to the
public” when MSHA posts them on its website, and they put operators on notice
of a standard. Tr. 48. The onus is on an operator to monitor fatalgrams and
incorporate proposed changes applicable to its mining operation. Tr. 48. The
fatalgram issued shortly after the elevator fatality at another cement
operation, lists the following “Best Practices:”

Immediately
report any elevator problems to management.

Ensure that any
problems affecting the safety of an elevator are repaired promptly.

Ensure that
elevator door interlocks, that prevent the door from being opened unless the
elevator car is present, are functional.

Ensure the
elevator doors will not open unless an elevator car is at the floor landing.

Install audible
signals that sound when the elevator car is at the landing prior to the doors
opening.

Train all
persons to be aware of their surroundings when entering or exiting an elevator
car.

Jt.
Ex. 3.

In the court’s
opinion the fatalgram does not fairly notify the non-metal industry of workplace
examination requirements because it does not describe elevators or their
hoisting equipment as “working places,” nor does it discuss § 56.18002(a)’s requirements,
and it fails to set out a best practice for systematic examinations of
elevators and hoisting equipment. The fatalgram is laudable for bringing
attention to a safety concern, but standing alone does not constitute adequate
notice of the Secretary’s interpretation of elevators and associated areas as “working
places” under the relevant standard.

MSHA’s Program
Policy Manual (“PPM”) regarding 30 C.F.R. §§ 56/57.18002 addresses working
place examination requirements. Jt. Ex. 1. The PPM states that MSHA intends to
use the definition of “working place” found in Section 56.2 to define the
“working place” in Section 56.18002(a). Id. The PPM further explains,
“[a]s used in the standard, the phrase applies to those locations at a mine
site where persons work during a shift in the mining or milling process.” Id.
This implies that to be considered a working place, actual work is being
performed at that location, not that the area is simply used as a travelway, or
could be a potential working place. Ash Grove’s position that the cited
hoisting equipment was not a working place actually comports with the PPM’s description
of a “working place,” and the court finds it reasonable that Ash Grove would
consider elevators and associated areas generally exempt under the standard
unless work was being performed on them at a given time. The court concludes
that the PPM, like the fatalgram, did not put Ash Grove on notice of the
Secretary’s interpretation of the standard.

c.      
The Agency’s Pre-Enforcement Warning, or Lack Thereof

In
the absence of a clear standard or official guidance regarding a standard, an agency's
“pre-enforcement efforts” or “pre-violation” contact to achieve regulatory compliance
may provide adequate notice. Gen. Elec. Co. v. U.S. E.P.A., 53 F.3d
1324, 1329 (D.C. Cir. 1995). The Secretary presented no evidence that he
notified Ash Grove that examinations of elevators and hoisting equipment would
be required or that a citation would be issued for the failure to perform them.

d.     
Prior Citations Issued to Ash Grove

The
lack of actual notice is compounded by the fact that Ash Grove was never before
cited for a failure to examine any of its elevators and/or the elevators’
hoisting equipment. Tr. 103-104; G. Ex. 1. The emphasis on applying Section 56.18002(a)
to elevators was a relatively new phenomenon, borne out of the agency’s
response to a recent fatal elevator accident.

e.      
The Commission’s Reasonably Prudent Person Test

Having found
that the company did not have actual notice of MSHA’s interpretation of the
workplace examination standard based on the plain language of the standard, or
guidance from the agency, the next question is whether a reasonably prudent
person, familiar with the Mine Act and its protective purposes would have
considered elevators and their hoisting equipment “working places” subject to
Section 56.18002(a)’s inspection requirements.  

As stated, the
Commission does not require that the operator be given actual notice of
the Secretary’s interpretation of a standard in every circumstance, but rather
uses an objective test, which asks, “whether a reasonably prudent person
familiar with the mining industry and the protective purposes of the standard
would have recognized the specific prohibition or requirement of the standard.”
DQ
Fire & Explosion Consultants, Inc., 36 FMSHRC 3083, 3087-88 (Dec. 2014) (citing
Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990).)  

Steve Minshall, Ash Grove’s Corporate
Director of Safety and Health, testified that he is involved in setting company
policy and giving guidance on conducting workplace

examinations.[14] Tr. 92. Minshall
conducts plant-wide training on workplace examinations. Tr. 93. He bases his
training largely on the Program Policy Manual, the regulations, and related
standards. Tr. 93-94. Minshall testified that his understanding of the
workplace examination standard is that it requires a record of the examination,
the name of the person doing the examination, a list of the areas inspected,
and the date of the exam. Tr. 94. He understands a working place to be one
where individuals are conducting work, not necessarily the plant’s elevators. Tr.

94. Minshall testified that Ash Grove has a systemic elevator maintenance
    program. The company’s elevator contractors are licensed and perform state
    inspections and maintenance that conforms to the state’s requirements. Minshall
    believes the contractor’s inspections and maintenance keep the plant in
    compliance with the Mine Act examination standard. Tr. 104.

As evidenced by
his position and experience, Minshall is familiar with the mining industry and
the Act, as he often trains employees on the Act’s regulations. He gives no
indication that he is anything other than reasonable. His belief that
examinations by elevator contractors is in compliance with the Mine Act
supports the contention that a reasonably prudent person in the mining industry
would not think § 56.18002(a)’s requirements are applicable to all elevators.

In addition, the
testimony reveals that operators are not the only concerned entity that considers
elevators to be something other than “working places.” Around the time the
citation was issued, Minshall had a conversation with Harvey Kirk, a Health and
Safety specialist at MSHA’s Headquarters in Arlington, Virginia, regarding the workplace
examination requirements in light of the February 2014 elevator fatality. Tr.
102-103. Minshall credibly testified that Kirk has a background in the cement
industry and that at the time Kirk was MSHA’s de facto “liaison” to the cement
industry. Operators often consulted Kirk for guidance. Tr. 107. Kirk told
Minshall that elevators were not considered “working places” under the standard
requiring examinations every shift. Tr. 102-103. Ash Grove does not argue that
it relied on Kirk’s guidance in shaping its workplace examination policy, and Minshall
could not pinpoint an exact date of his conversation with Kirk. However, the
court finds it telling that even an MSHA employee believed that the term
“working places” did not include elevators. The opinion of these two
individuals with vast experience in the non-metal industry, that elevators do not
constitute “working places,” suggests that a reasonably prudent person familiar
with the industry and purposes of the Act would not have considered an elevator
and its associated hoisting equipment to be a “working place.”

Additionally, hoisting
equipment examinations are governed by § 56.19120. [15] 30 C.F.R.
§ 56.19120; R. Br. 10. In fact, Nelson initially cited Ash Grove for a
violation of this standard. [16]
Tr. 32; G. Ex. 3, p.6. This standard requires a systematic procedure to
inspect, test and maintain hoisting equipment and shafts. 30 C.F.R. § 56.19120.
Ash Grove had a system in place whereby its elevator contractor, Otis, inspected
and maintained the elevators, and was called to repair any defects. Tr. 43, 51-52.
Nelson testified that he reviewed the records and Ash Grove was up to date and
in compliance with state and local elevator inspections. Tr. 52. The court
finds it reasonable for an operator to believe elevator hoisting equipment
examinations fell under the purview of Section 56.19120, specifically aimed at
hoisting equipment and shafts, rather than the broader workplace examination
standard.

For all of these
reasons it is evident to the court that it was not at all clear to a “reasonably
prudent person” that Section 56.18002(a) applied to a cement plant’s elevators
and areas adjacent thereto, including the elevators’ hoisting equipment. Therefore,
the court concludes that Ash Grove did not receive fair notice of the
Secretary’s interpretation of § 56.18002(a) and that enforcing the citation
would be an affront to due process. Accordingly, Citation Number 8780591 will
be VACATED.       

B.    
      Citation No. 8611830, Docket No. WEST 2014-963

On May 28, 2014,
MSHA Inspector Richard Dreyer issued Citation No. 8611830 to Ash Grove for an
alleged violation of 30 § 56.14110.[17]
The citation states:

Material falling
during the operation of the conveyor exposed persons in the passageway below to
hazards that would be expected to result in serious injury. The typical feed
material on this conveyor is a 4” minus limestone product. The distance of the
fall from the 331-190 conveyor to the travelway below was approximately 45’. This
falling material presented a hazard to persons working in and around the raw
mill lube room regardless of point of entry. No guards, shields, or other
mechanisms were provided to protect persons from this hazard. The condition
existed for more than one shift and the operator failed to identify or correct
it.

G. Ex. 5.

Dreyer found the
alleged violation was S&S, “reasonably likely” to fatally injure one person,
and the result of Ash Grove’s moderate negligence. G. Ex. 5.

1.     
The Background and Testimony

On May 28, 2014,
as he traveled the stairs and approached the top of Ash Grove’s 331-190
conveyor, Dreyer observed a buildup of four inch minus crushed rock material on
the conveyor’s I-beams.[18]
Dreyer did not see material falling from the conveyor during his inspection,
but he testified that the material would have been carried by the conveyor belt
and that, “[i]t was pretty evident that material had been falling off this
conveyor.” [19]
Tr. 113-14. Dreyer also testified that impact damage on a vertical beam
indicated that a skid steer was put in place near the raw mill lube room doors,
presumably to clean up falling material from the conveyor. [20] Tr. 163,
165-66. The floor in the area was dirty, indicating that material had fallen from
the conveyor to the ground. Tr. 165. There were tire tread marks near the
accumulations. Tr. 166.

Dreyer did not
take a sample, but stated that the four inch minus material included limestone,
which usually is powdery. Tr. 114, 129. However, limestone can harden over time
into solid rock if, for example, the powder is introduced to moisture (likely
from ambient humidity). Tr. 114. Dreyer testified that the solid rock formed from
the normally fine material can do significant damage. He has seen such hardened
rock dent a vehicle after falling from a conveyor. Tr. 114-15.

Dreyer described
the conveyor belt as one that ran over trough rollers, idler rollers, head pulleys,
and tail pulleys. Tr. 169. Dreyer explained that:

“[e]very time
that conveyor goes over a trough roller it flexes the belt and de-flexes the
belt and that’s going to cause movements to the material being transported. Any
conveyor can have a tracking issue. I mean, there’s a number of maintenance
things that would also contribute to movement and material being transported.”

Tr. 170.

Dreyer
maintained that the material built up on the conveyor’s I-beams at an angle.
Tr. 171. As more material fell on the beams the material would continue to
build up or it would fall off the beams to the floor below. Tr. 171. Material on
the I-beams could consolidate and be impacted. Tr. 171. Dreyer said that on the
day of the inspection the beams could not hold any more material. Additional material
would simply fall. Tr. 171. The beams did not negate the hazard of falling materials;
in fact, Dreyer noted that material could hit a beam and be deflected or
redirected, enlarging the area of concern. Tr. 172-173

Dreyer measured
the conveyer or belt’s height at around 45 feet. Tr. 115-16. At the bottom of
the conveyor there is a travelway leading into the raw mill lube room.[21] Tr. 116. Dreyer
testified that material falling from the conveyor could fall down and hit a
miner on the travelway below. Tr. 116-17. The material could fall directly from
the conveyor to the travelway in some spots, and in other spots it could fall onto
the roof of the raw mill lube room. Tr. 118-119. One area of particular concern
below the conveyor was the area in front of the lube room mandoors. Tr. 121. The
material had built up on the roof, and this buildup was in line with the
mandoors. Tr. 118.  

Dreyer testified
that the company terminated the citation by fabricating and installing protective
structures over areas below the conveyor where miners were in danger of being
hit by falling material. Tr. 134; G. Ex. 5 p. 3.

2.     
The Violation

To
establish a violation of Section 56.14110, the Secretary must prove, by a
preponderance of the credible evidence, that a guard or shield was not
installed in an area or in areas where material falling from or flying from screens,
crushers or conveyors, presented a hazard.[22] In re: Contest of Respirable
Dust Sample Citations, 17 FMSHRC 1819, 1838 (Nov. 1995). See generally
Northern Aggregate, Inc., 37 FMSHRC 562, 579 (Mar. 2015)(ALJ) (holding that
Section 56.14110 requires actual protection against the danger of falling
rocks, “by use of a guard, shield or other device.”).  

Ash Grove
maintains that the material Dreyer observed did not fall from the overhead
conveyor, as the conveyor belt was not operating at the time of the inspection.
R. Br. 15. Craig Becker, presently the maintenance supervisor for Ash Grove,
testified that the material that Dreyer observed on the ground was actually rejected
material from the cleanup process, rather than material that fell from the
conveyor belt.[23]
Tr. 141. The rejected rock area, where Becker believes the material originated,
is on the north side of the raw mill, in the same area of the conveyor belt.[24] Tr. 141. Becker
testified that the transfer point where rock material may have shifted and
fallen is too far from the area where the fallen rock material was found to be
the source of the observed material. Tr. 150-51. Further, Ash Grove emphasizes
that Dreyer did not test the material’s composition to confirm that it matched
the material on the conveyor. Id.

The court finds the
lack of testing to be inconsequential. Dreyer testified that in his opinion the
material found on the belt was consistent with the observed fallen material. Tr.
174-75. Violations of accumulations standards have been established by
inspector observations, particularly where the standard does not require
testing. See,
e.g., Amax Coal Co.,
19 FMSHRC 846, 847, 849 (May 1997); Jim Walter Resources, Inc., 19
FMSHRC 480, 483 (Mar. 1997); Enlow Fork Mining Co., 19 FMSHRC 5, 20
& n.2, 21 (Jan. 1997). The Commission has held that an inspector’s
testimony regarding the composition of an accumulated material by observation
alone may be credited, especially in the absence of rebuttal evidence. Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1290 (Dec. 1998) (upholding a coal
accumulation violation based on an inspector’s observation when the operator
did not present any evidence to rebut the inspector's testimony that float coal
dust was present or establish that float coal dust could not be identified by
observation). Dreyer’s
testimony, given his experience in the industry, was creditable. Further, Ash
Grove did not offer any evidence that the fallen material was not the same as
the limestone on the conveyor belt.

The court
concludes that the Secretary proved by a preponderance of evidence that Ash
Grove violated Section 56.14110. Dreyer credibly testified that the floor under
the conveyor was dirty, consistent with material falling from the conveyor. Tr.

165. Dreyer also credibly testified that a skid steer appeared to have been
     placed in the area to clean up flying or falling material.[25] Tr.
     165-166. The material that accumulated on the beams of the platforms used to
     access the conveyor, indicates that material regularly fell from the conveyor. R.
     Ex. 9, p. 6. Finally, Dreyer’s credible explanation that incline conveyors,
     like the one used by Ash Grove, would move and shift limestone causing it to
     fall, supports the allegation. Tr. 169-70. Dwyer’s testimony that falling
     material could have hit a miner on the travelway below was not refuted. Tr.16-17
     Further, as both sides agree, a guard or shield was not installed in the area.

Ash Grove argues
alternatively, that there was no violation because the language of the standard
“states that not all flying or falling material is a violation. Instead this
standard states that only flying or falling material that presents a hazard is
a violation.” R. Br. 16. The company asserts that the anticipated falling
material from a conveyor would be soft like a puff of snow, and thus not
capable of causing injury or damage, and thus not hazardous. R. Br. 17.  The
court rejects this argument, as Dreyer testified that while some material could
fall in this form, other material could fall in the form of solid rock, which would
obviously injure a miner. Tr. 173.

For the reasons
discussed, the court finds that Ash Grove violated Section 56.14110.

3.     
The Gravity of the Violation and its S&S Nature

The Secretary
contends that Citation Number 8611830 was properly designated S&S. G. Br.

19. Ash Grove argues that the testimony “establishes any hazard to be
    insignificant and unlikely.” R. Br. 17.  

Under
the Mine Act a violation may be designated S&S if the issuing inspector
finds that the alleged violation is “of such nature as could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard.” 30 U.S.C. § 814(d). The Commission has held that an S&S categorization
is proper “if, based upon the particular facts surrounding the violation, there
exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat'l Gypsum
Co. 3 FMSHRC 822, 825 (Apr. 1981).

To
establish the S&S nature of a violation, the Secretary must prove: “(1) the
underlying violation of a mandatory safety standard; (2) a discrete safety
hazard - that is a measure of danger to safety - contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury;[26]
and (4) a reasonable likelihood that the injury will be of a reasonably serious
nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck
Creek Coal Co., Inc. 52 F.3d 133, 135 (7th Cir. 1995); Austin
Power Co., Inc., 861 F.2d 99, 103 (5th Cir. 1988) (approving the
Mathies criteria). This four part analysis, otherwise referred to as the
Mathies test, will be discussed in seriatim.

As
a threshold matter, the court has found that the Secretary established a violation
of 30 C.F.R. § 56.14110, thus satisfying the first prong of the Mathies analysis.

The
next step in the S&S inquiry requires that the Secretary identify a safety
hazard caused by the alleged violative condition(s). Highland Mining
Co.,
34 FMSHRC 3434, n. 5 (Dec. 2012) (“For each
violation alleged to be ‘significant and substantial,’ the relevant hazard
associated with the violation must be identified). A safety hazard, as
defined by the Commission is “the dangerous
situation that the mandatory safety standard anticipates.” Black Beauty
Coal Co.,
34 FMSHRC 1733, 1741 (Aug. 2012) (citing Cumberland Coal Res., LP,
33 FMSHRC 2357, 2366 (Oct. 2011), aff'd717 F.3d 1020 (D.C. Cir. 2013).

Here,
the Secretary alleges that the violative condition was the lack of a shield or
guard on the conveyor to prevent injury from falling material, in contravention
of the standard. G. Br. 19; Tr. 125. The particular hazard identified by the
Secretary is falling or flying rock that could hit and injure a miner traveling
or standing below the conveyor. Tr. 116-117, 118, 119. The standard anticipates
this hazard, as evidenced by its express language. Section 56.14110 requires a
guard or shield where falling materials are generated, to protect individuals
from materials falling from a conveyor. See 30 C.F.R. § 56.14110.

Ash
Grove argues that material was not falling from the conveyor, but if it fell,
the falling material would be powdery and soft and would be incapable of
injuring anyone. R. Br. 16; Tr. 158-160. Dreyer credibly testified while some
material may be powdery and soft limestone, some can also accumulate and consolidate
into solid rock, and fall 45 feet, hitting a miner below the unprotected
conveyor.[27]
The
Secretary thus identified a discrete hazard (falling rock) caused by the
violative condition (the failure to install a shield or guard as required by
the standard) in satisfaction of the second Mathies requirement.

As
applied to the present case, the appropriate test under the third step of the Mathies
analysis, is whether there was a reasonable likelihood that the hazard
(i.e., the danger of a rock falling 45 feet from the conveyor and hitting a
miner below) contributed to by the violation (i.e., absence of a shield on the
conveyor) would cause an injury. Musser Eng’g., Inc., 32 FMSHRC 1257,
1281. The Secretary is not required to prove that the cited violation
itself would cause an injury, but that the hazard would be reasonably likely to
cause an injury. Black Beauty Coal Co., 34 FMSHRC 1733, 1742-43 (Aug.
2012), aff’d sub nom. Peabody Midwest Mining, LLC, 762 F.3d 611 (7th
Cir. 2014). The
Commission has explained that “reasonable likelihood” is less stringent than
“more probable than not.” Amax
Coal Co.,19 FMSHRC 846, 848 (May 1997); U.S. Steel Mining Co., 7 FMSHRC 1125,
1130 (Aug. 1985). Again, the likelihood must be examined in the context of
continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125,
1130 (Aug. 1985).

Dreyer
reasoned that an injury was reasonably likely because significant material had
built up above a travelway, and had accumulated “for a while.” Tr. 122. Fallen
material was present on the conveyor’s support structure, as well as on the
floor below the conveyor. Tr. 122.  Dreyer credibly testified that on the conveyor
structure the material had accumulated to the point where additional material
was likely to sluff off and fall. Id. The material was exposed to ambient
moisture and it could consolidate and form solid rock. Tr. 114-115. The
resulting rock was capable of producing significant damage if it fell and hit a
miner. Tr. 115. There was a travelway 45 feet under the conveyor that was
accessed multiple times per shift by several individuals; Dreyer estimated 10
to 12 exposures per day. Tr. 116-117, 118. Moreover, material also had built up
on the roof of the raw mill lube room, directly in line with the entrance to
the room. Tr. 118.

Ash Grove claims
that the hazard of a rock fall is mitigated because Ash Grove’s miners are
required to wear hard hats, and the evidence shows that they were doing so. [28] R. Br. 17,
Tr. 126. While commendable, this safety measure will not be considered by the
court in its “reasonable likelihood” evaluation. The Commission has held that
miners’ exercise of caution should not be considered in an S&S analysis,
because the alleged “hazard continues to exist regardless of whether caution is
exercised.” Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992).

Ash Grove also maintains
that the likelihood of injury is reduced because accumulated material would be air
lanced to prevent build up.[29]
R. Br. 17, Tr. 181-183. The court finds that the assertion has no bearing on its
S&S determination. Commission judges may not infer that a violative
condition will cease. Gatliff Coal Company, 14 FMSHRC 1982, 1986 (Dec. 1992). Dreyer
testified that he observed significant buildup during his inspection. Tr. 113,

167. In the Commission’s S&S paradigm, violative conditions prior to and at
     the time of the violation are relevant (Mach Mining, LLC v. SOL, 809
     F.3d 1259 (D.C. Cir. 2016)) and assumptions as to abatement measures are not
     considered. Id.; Paramont Coal Co. VA LLC, 37 FMSHRC 981, 985
     (May 2015).

Minshall
testified that there had never been an injury at Ash Grove caused by falling material
in the cited area (Tr. 161), but it is well settled that the absence of an
injury-producing event when a cited condition has existed for some time does
not preclude a finding of S&S. See Elk Run Coal Co., 27 FMSHRC 899,
906 (Dec. 2005); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857
(June 1996).

Based
on the foregoing, the court finds that it is reasonably likely that without a
guard or shield in place, a falling rock (made up of consolidated accumulated
material) could fall from the conveyor, its structure or the lube room roof and
strike and injure one of the several miners who accessed the areas under the
accumulated material a dozen or so times a shift.

The fourth
and final prong of the Mathies test requires the Secretary to prove
there is a reasonable likelihood that the injury in question will be reasonably
serious. The Secretary has satisfied this element of the S&S test because
the evidence supports a finding that the injury would be fatal, or at the very
least would result in lost workdays. In support of the fatal designation, Dreyer
testified that rock falling 45 feet could “have serious negative consequences
on anybody impacted.” Tr. 122-23. The record fully supports finding that the
impact of a rock falling and hitting a miner would likely result in death or in
significant neck or spinal injuries. Tr. 123, 131, 160-61.

For the reasons
set forth above, the court affirms the inspector’s S&S finding.

Next, the
gravity, or seriousness, of the violation must be addressed. Sellersburg
Stone Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147
(7th Cir. 1984)( “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.”). The
gravity of a violation is distinct from the S&S nature of a violation, as
“the
focus of the seriousness of the violation is not necessarily on the reasonable
likelihood of serious injury, which is the focus of the S&S inquiry, but
rather on the effect of the hazard if it occurs.” Consolidation Coal Co.,
18 FMSHRC 1541, 1550 (Sept. 1996). Thus, 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. American Coal Co., 36 FMSHRC 2456,
2460 (Sept. 2014)(ALJ). The two concepts are often discussed in close
succession because, “[a]lthough the gravity penalty criterion and a finding of
S&S are not identical, they are frequently based upon the same factual
circumstances.” Enlow Fork Mining Co., 19 FMSHRC 5, 10-11 (Jan. 1997) citing
Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.11 (Sept. 1987). See also
Elk Run Coal Co., Inc., 27 FMSHRC 899, 907 (Dec. 2005).

It is clear the area
affected by the violation was regularly visited by miners. Mike Begley, Ash
Grove’s maintenance manager, informed Dreyer that the area below the conveyor was
used at least twice daily by several different miners. Tr. 121. Dreyer
estimated that only one person at a time would be injured if a rock fell from above,
and indeed this is the most likely scenario. Therefore, there is no reason to
disturb Dreyer’s designation that one person would be affected by the cited
hazard. G. Ex. 5. Tr. 123. Based on the fatal or very serious injury that could
result to a miner as discussed previously, and the reasonable likelihood that a
rock could fall from an unguarded conveyor and strike a miner, the court finds
the violation was serious.

4.     
Ash Grove’s Negligence

Section
110(i) of the Mine Act requires that in assessing penalties, the court also
considers “whether the operator was negligent.” 30 U.S.C. § 820(i). The
Commission has held that each mandatory standard “carries with it an
accompanying duty of care to avoid violations of the standard,” and the failure
to meet this duty will result in a finding of negligence. A.H. Smith Stone
Co.,
5 FMSHRC 13, 15 (Jan. 1983). In determining whether the operator met its requisite
duty of care imposed by a particular standard, the court must take account of the
relevant facts, the protective purposes of the cited regulation, and what
actions a “reasonably prudent person familiar with the mining industry,”
would take under the circumstances. Jim Walter Resources, Inc., 36 FMSHRC
1972, 1975 (Aug. 2014).
An operator is negligent
if it should have known that its actions (or failure to act) would cause a
violation. Brody Mining, LLC, 37 FMSHRC 1687, 1703-04 (Aug. 2015). In addition,
the Secretary must describe the specific action an operator did not take to meet
the requisite standard of care. Jim Walter Resources, Inc., 36 FMSHRC 1972,
1976-1977 (Aug. 2014).

Initially,
Dreyer determined that the violation occurred as a result of Ash Grove’s “moderate”
negligence. G. Ex. 5; Tr. 123-24. Dreyer noted that he did so because at the
time he did not find anyone in management had specific knowledge of the
condition. Tr. 124. However, Dreyer also testified that “high” might have been
more appropriate, as the company had extensive discussions with MSHA regarding
falling material during a previous inspection.
[30]
Tr. 124. After the hearing, the Secretary urged the court to consider modifying
the level of negligence to “high.” G. Br. 21.

The
Commission has described ordinary negligence as characterized by “inadvertent,”
“thoughtless,” or “inattentive” conduct. Emery Mining Corp., 9 FMSHRC
1997, 2001, 2004 (Dec. 1987) citing Black's Law Dictionary 930–31 (5th
ed. 1979). A finding of high negligence, however, “suggests an aggravated lack
of care that is more than ordinary negligence.” Topper Coal Co., Inc.,
20 FMSHRC 344, 350 (1998); Eastern Associated Coal Corp., 13 FMSHRC 178,
187 (Feb. 1991). In particular, the Commission has held that an operator's
intentional violation constitutes high negligence for penalty purposes. Consolidation
Coal Co., 14 FMSHRC 956, 969-70 (June 1992).

There is
sufficient evidence to conclude that Ash Grove was inattentive regarding the
accumulation conditions and the attendant hazard of falling material. Dreyer testified
that there was significant material build up on the roof, indicating the
falling material had accumulated for some time. This indicates that Ash Grove
should have been on notice that material had reached a point where it was
falling or was in danger of falling from the conveyor. Further, Ash Grove’s use
of a skid steer to presumably clean up falling material indicates that Ash
Grove was aware that material was falling from the conveyor, but neglected to adopt
a permanent solution. While Ash Grove’s inattention to a solution did not meet
the standard of care required, there is no indication the resulting violation
was intentional. Therefore, the court agrees with Inspector Dreyer’s original
conclusion and finds that moderate negligence is the appropriate designation and
declines the Secretary’s invitation to increase the negligence attribution to
“high.”

C.        Citation
Numbers 8780422 and 8780423, Docket Nos. WEST 2015-503 and WEST 2015-523

The citations were
issued to Ash Grove as a result of its response to an August 4, 2014, accident
at the plant. The accident occurred when a person (a trainee truck driver) riding
in a customer’s truck got out of the truck’s cab while the truck was parked and
fell while climbing a ladder on the side of the truck. Inspector Thomas
Rasmussen was assigned by MSHA to investigate the accident.[31] As a
result of his investigation, including interviews with witnesses, Rasmussen
issued Citation Numbers 8780422 and 8780423 to Ash Grove for its response to
the accident. Citation No. 8780422 concerns Ash Grove’s reporting of the
accident to MSHA, and Citation No. 8780423 concerns the treatment of the
accident scene.

Citation No. 8780422
charges Ash Grove with a violation of 30 C.F.R. § 50.10(b).[32] The
citation states:

The mine
operator did not notify MSHA within 15 minutes after becoming aware of a
serious injury of an individual. On July 23, 2014 [,] one truck driver fell
while climbing a ladder on a bulk trailer in the Group 2 Loadout and landed on
an uneven steel platform at the base of the ladder. The individual was
transported to the Hospital with serious and life threatening injuries. The
mine [o]perator was aware of the immediate notification requirements, was
informed of the accident at approximately 14:00 hours and did not notify MSHA
until 14:43 hours on July 23, 2014.

G.
Ex. 8.

Rasmussen
found that the alleged violation was unlikely to cause an injury, but if an
injury occurred, that it was likely to result in a fatality. He also found that
the violation was the result of Ash Grove’s high negligence. G. Ex. 8.

Further, Rasmussen
issued Citation No. 8780423 to Ash Grove for a violation of 30 C.F.R. § 50.12.[33] Citation
No. 8780423 states:

The mine
operator failed to preserve the accident scene where one truck driver fell
while climbing a ladder on a bulk trailer in the Group 2 Loadout and landed on
an uneven metal platform at the base of the ladder at approximately 14:00 hours
on July 23, 2014. Upon arrival at the mine site, at approximately 17:00 hours
on July 23, 2014, it was found that the accident scene was altered. After the
injured individual was removed, the truck and trailer were taken from the
scene, washed then parked in the Group 2 Rail Side Loadout. Removal of evidence
from the accident scene hinders the investigation into the cause of the
accident. The Mine Operator was aware the accident had occurred and did not
preserve the accident scene.

G. Ex. 12.

Rasmussen
found that although the violation was neither serious nor S&S it was the result
of Ash Grove’s “high” negligence. G. Ex. 12.

1.     
The Background and Testimony

On July 23,
2014, Ronald Cory, an employee of Gresham Transfer (“Gresham”), a customer that
bought product from Ash Grove, was injured at the Seattle Plant. Tr. 194.[34] Cory, a
Gresham trainee, was being trained by Jamie Goad, who was driving Gresham’s truck.
Tr. 198. Goad had pulled up to the Group 2 Loadout and parked the truck while
it was loaded. Id. During the loading process Cory left the truck, but
as the process neared its end, Cory returned to the cab. At around 2:00 p.m., after
the truck was loaded, Cory could not find his cell phone. He thought he might
have left it on the roof of the cab. Tr. 193, 210. Cory again left the truck and
climbed up the ladder of the outside of the truck to retrieve his phone. Tr.

210. When Cory approached the top of the ladder he struck his head on the
     cement loading spout of Loadout Number 2. He lost his grip on the ladder, and
     he fell about eight feet. Tr. 193,197. Cory hit his head on the way down and
     landed on the steel tongue of the truck’s trailer and on an uneven concrete platform.
     Tr. 193. Cory was not wearing fall protection. Tr. 223. Paramedics were called
     to the scene and arrived around five minutes after the fall. Tr. 256-57. Subsequently,
     Cory was transported to the trauma ICU center at Seattle’s Harborview Hospital.
     Tr. 209. MSHA was called, and Rasmussen arrived at the plant and interviewed
     numerous people. Tr. 224, 227. Rasmussen also went to the hospital, but he was
     unable to speak to Cory on the day of the incident because Corey was
     incoherent. Tr. 209. However, Rasmussen spoke to a trauma center nurse about
     Cory’s injuries, and she emphasized that Cory was lucky to be alive. Tr. 209. Cory
     suffered blunt force trauma to the head, a cut on the head requiring three
     staples, broken vertebrae, and a broken sternum and clavicle. Tr. 193, 209; G.
     Ex. 13. When Cory was finally able to speak to Rasmussen several days later, Cory
     indicated that he did not remember many details about what happened, other than
     waking up in a “bunch of blood” and that during the fall he thought he was
     going to die. Tr. 210-11.

Witnesses to the
accident and those who observed the scene immediately after the fall painted a
gruesome picture. Goad, the truck driver and a Gresham supervisor described how
Cory had left the cab of the truck and how Goad then heard a thump after which the
loader operator who worked for Ash Grove yelled that Cory had fallen. Tr.
200-01. Goad got out of the cab. He told Rasmussen that he saw Cory lying
motionless face up after the fall. Tr. 203-04. The paramedics soon arrived to
help Cory and after they removed him from where he was lying and took him to
the hospital, Goad told Rasmussen he saw blood everywhere. Goad took pictures
of the blood on the steel tongue and concrete before moving his truck. He later
sent the photographs to Rasmussen. Tr. 201.

Romeo Semo, an
Ash Grove employee, was working at the loadout and witnessed Cory’s fall. He
told Rasmussen he thought Cory was dead. Tr. 205. A customer present at the
time of the accident, Reggie Soloman, told Rasmussen that he too believed Cory
was dead, and that Corey was lucky that he survived the fall. Tr. 205-07.

Ash
Grove’s witnesses described a less grim scene. Carey Austell, the plant
manager, was at the plant when the injury occurred.[35] Tr. 252-254.
Austell was informed of the injury and arrived at the scene of the accident
after the paramedics had been called and were enroute. Tr. 255. Austell
testified that when he got to the scene Cory was conscious, alert, and moaning.
Tr. 256. Austell opined that once they arrived, the paramedics were methodical,
but not acting with great urgency. Tr. 258. Austell testified that he did not
believe that Cory had a reasonable chance of dying since his breathing and
bleeding were controlled, and he was alert. Tr. 259-260. Austell decided not to
call MSHA to report the accident based on this belief. Tr. 261.  

Craig Becker, who
was filling in for the safety manager on July 23, arrived at the scene within
five minutes of being notified of the accident. Tr. 263-64. Becker said the
paramedics arrived about two or three minutes after he did. Tr. 264. Becker
testified that when he first saw Cory, Cory was alert and responsive to pain. Tr.

265. The paramedics, according to Becker, were not administering CPR; rather
     they were checking for broken bones and injuries and they were reassuring Corey.
     Tr. 265-66. Becker discussed with Austell whether to call MSHA. Becker believed
     that there was not a reasonable chance of death requiring MSHA’s immediate
     notification. As it turned out, Ash Grove called to notify MSHA of the event at
     approximately 2:43 p.m. Tr. 193-94; G. Ex. 5.

Later that day,
when Rasmussen arrived at the scene of the accident, Rasmussen discovered that Goad
had moved the truck and washed it. Tr. 202, 304. Ash Grove never asked
Rasmussen or any other MSHA official for permission to move the truck. Tr.
191-92. Goad told Rasmussen that he moved the truck because he wanted to wash away
the blood. Tr. 200. Goad took pictures of the blood before washing the truck. He
sent the photographs to Rasmussen to use in the investigation. Tr. 201. After
the truck was cleaned, it was moved back to where the accident occurred, and it
was taped off to prevent future use. Tr. 312-15.

2.     
The Immediate Notification Violation, Citation Number 8780422

Rasmussen
testified that he issued Citation No. 8780422 because, in accordance with 30
C.F.R. § 50.10(b), an operator is required to call MSHA within 15 minutes of
becoming aware that an accident has occurred resulting in an injury which has a
reasonable potential to cause death, and that Ash Grove waited longer than the
allotted time to notify MSHA of the accident. Tr. 194. Ash Grove’s safety
director was aware of the accident at around 2:05 p.m.[36] and called
MSHA’s notification hotline to notify MSHA of the event at 2:43 p.m. Tr.
193-94; G. Ex. 8, p.5.

The
Commission has explained that the immediate notification standard requires a
mine operator to report to MSHA, within 15 minutes, an accident that has
resulted in an injury which has a reasonable potential to cause death. Rex Coal Co., 38 FMSHRC 208,
212 (Feb. 2016) (“Section 50.10 imposes an affirmative duty on the operator to
report accidents immediately within 15 minutes.”); Mainline Rock
& Ballast v. Sec’y of Labor, 693 F.3d 1181, 1188 (10th Cir. 2012). Essentially,
to prove a violation of 50.10(b) the Secretary must show that an accident
occurred, that the accident resulted in an injury or injuries having the reasonable
potential to cause death, and that the mine operator failed to notify MSHA
within the 15 minute time frame anticipated by the standard.

Here,
it is undisputed that an accident occurred when Cory fell from the truck. R.
Br. 17; G. Br. 23; Tr. 193. It is also undisputed that the call to MSHA was
made after the allotted 15 minutes, as the operator made the call 38 minutes or
more after being notified of the incident. R. Ex. 1; G. Ex. 8; Tr. 196, 201. The
disputed aspect of this case is whether the accident resulted in an injury or
injuries having the reasonable potential to cause death, relieving Ash Grove of
its duty to report the accident immediately. Ash Grove defends its 38 minute or
more delay in calling the MSHA accident hotline by stating that mine officials
did not believe Cory’s injuries were likely to result in death. R. Br. 19. The
Secretary states that numerous circumstances were present that “would lead a
reasonably prudent mine operator to conclude that Cory’s life may have been in
jeopardy.” G. Br. 24. To determine whether the accident triggered an
affirmative duty for Ash Grove to notify MSHA in 15 minutes the court must
analyze whether, based on the evidence presented, the Secretary is right.

Rasmussen concluded the accident
resulted in injuries that had a reasonable potential to cause death after
considering the extent of the injuries Cory sustained, including his head
injury, his fall onto a hard surface, Cory’s period of unconsciousness after
the fall, his trouble breathing when the ambulance arrived, and various eye
witness statements. Tr. 193-94, 237. Rasmussen testified that “people die
frequently from falls from a height.” Tr. 237. The Commission has held an MSHA
inspector’s opinion as to the seriousness of an injury, alone, may be relied upon,
absent any other evidence of the record. Cougar Coal Co., 25 FMSHRC 513,
521 (Sept. 2003); Power Operating, 18 FMSHRC 303, 306-07 (Mar. 1996); Zeigler
Coal Co., 15 FMSHRC 949, 954 (June 1993). Based on the eight foot fall onto
an uneven and hard surface, the fact that Cory’s head was injured, and
Rasmussen’s opinion as to the trauma and injuries Cory suffered, the court finds
that Rasmussen’s decision to cite Ash Grove was correct.

Ash Grove
emphasizes that Becker overheard paramedics stating that Cory would be “okay,”
and as such the injuries did not have the potential to cause death. R. Br. 20. The
court rejects this argument, as the opinions of first responders as to a victim’s
present condition do not render an accident any less serious. In fact, the
Commission has held that requiring a medical or clinical opinion of the
potential of death before an accident is determined to be reportable under
Section 50.10 would frustrate the immediate reporting of near fatal accidents
and thwart the purpose of the standard. Consolidation Coal Co., 15
FMSHRC 1555, 1557 (Aug. 1993). Moreover, Cory’s good fortune in surviving the
fall does not negate the seriousness of the accident.

The severity of
Cory’s injuries, coupled with the circumstances of the fall, and the majority
of the witnesses’ opinions that Cory seemed dead and was lucky to be alive,
indicate to the court that there was a reasonable likelihood the injuries could
have resulted in death, triggering the affirmative duty to alert MSHA within 15
minutes of the accident. Ash Grove personnel had the opportunity to make a call
within the allotted time, and they did not. Ash Grove violated section 50.10(b)
as alleged.

3.     
Ash Grove’s Negligence

Ash Grove
contends that its “reasonable belief that there was no immediately reportable
accident lowers its negligence.” R. Br. 19. Ash Grove asserts that management personnel
reasonably deemed Cory’s injuries to be nonlife-threatening and that the
plant’s proximity to a hospital and the paramedics’ rapid response make it
unlikely that any injury would have been fatal.

The focus of the
operator’s reasonableness in notifying MSHA of an accident is made considering
a totality of the circumstances. Signal Peak Energy, LLC, 37 FMSHRC 470,
474 (Mar. 2015). The operator must err on the side of caution and “in
determining whether it is required to notify MSHA under 30 C.F.R. § 50.10, must
resolve any reasonable doubt in favor of notification.” Signal Peak Energy,
LLC, 37 FMSHRC 470, 476 (Mar. 2015). Additionally, while Section
50.10 accords operators a reasonable opportunity to investigate an incident,
the investigation “must be carried out by operators in good faith without delay
and in light of the regulation's command of prompt, vigorous action.” Consolidation
Coal Co., 11 FMSHRC 1935, 1938 (Oct. 1989). In sum, Ash Grove had the duty
to make a good faith, but prompt, examination of the incident to determine
whether it warranted a Section 50.10(b) call to MSHA, and was required to err
in favor of notification.

Austell
testified that he did not believe Cory had a reasonable chance of dying because
when Austell arrived at the scene of the fall Cory was alert, breathing, and
not bleeding uncontrollably. Tr. 259-260. Becker testified that he believed
that although Cory indicated he was in pain, Cory’s symptoms would not be associated
with a fatal injury because Cory was alert and responding to pain. Tr. 267-68. An
individual’s consciousness when paramedics are present is an inadequate basis
to assume an accident is not potentially deadly. In Cougar Coal, the
Commission rejected an operator’s assertion that because an accident victim was
conscious and alert when management arrived at the scene, they reasonably
surmised that his injuries lacked the potential to cause death. Cougar Coal
Company,
25 FMSHRC 513, 520 (Sept. 2003).

Ash Grove also emphasizes
Becker’s testimony that he overheard paramedics make a reassuring statement
regarding Cory’s condition to support the contention that management reasonably
believed the accident was not serious enough to fall under the Section 50.10(b)
notification timeframe. R. Br. 19-20. Relying on a reassuring statement made by
a first responder does not make an operator any less culpable in failing to
call the MSHA hotline in a timely manner. The statement made to Cory that he
would be “okay” cannot be presumed to be an assurance to Cory that he would
survive and recover. It is equally likely to be a statement made to all
victims, whatever the extent of their injuries, to lessen their anxieties and
fear. Becker should have erred on the side of caution and reported the incident
more expeditiously. The Commission has held that, “[i]n the field, the
decision to call MSHA cannot be made upon the basis of clinical or
hypertechnical opinions as to a miner's chance of survival. The decision to
call MSHA must be made in a matter of minutes after a serious accident.” Cougar
Coal Co., 25 FMSHRC 513, 521 (Sept. 2003).

Austell and Becker arrived minutes after
the incident, and based their opinions regarding the severity of Cory’s
injuries largely on the paramedics’ responses and demeanors. R. Br. 19-20; Tr.
267-68. The paramedics’ calm dispositions are an inadequate basis to conclude
an injury is not serious enough to report an accident to MSHA within the
fifteen minute timeframe. The Court assumes paramedics are trained to exhibit such
an appearance. Relying on a lack of urgency on the part of medical personnel
and the absence of any express indication that Cory’s injuries were life
threatening was unreasonable. Ignorance of the severity of an accident, whether
willful or careless, does not excuse an operator’s failure to timely report an
accident. Mainline Rock & Ballast, Inc. v. Sec'y of Labor, 693 F.3d
1181, 1189 (10th Cir. 2012).

Ash Grove
further asserts that paramedics were on scene within minutes of Cory’s fall,
and that a hospital is nearby, presumably to indicate that Becker and Austell
did not believe Cory’s injuries would be life threatening. R. Br. 19; Tr.
256-57. The promptness of first responders and the proximity to a hospital do
not weigh in favor of reducing Ash Grove’s negligence. If anything, the
circumstances indicate that Becker and/or Austell were not needed to administer
first aid and could have made a call to MSHA.

Finally, Ash
Grove contends that it was not aware of the accident until 2:05 p.m. Tr.
192-193; R. Br. 17; cf. discussion supra note 36. However, even
if this time frame is accurate, the five minutes do not bring Ash Grove into
compliance with the 15 minute requirement and will not be considered a
mitigating factor in determining negligence. As discussed, management personnel
were not needed to administer first aid, and either Austell or Becker could
have placed a timely call to MSHA. Rasmussen asked Austell why Ash Grove did
not call within the fifteen minute time frame, and instead waited until 38
minutes after the accident occurred, to which  Austell responded, “no reason” (Tr.
216), and Craig Becker testified that the only reason MSHA was called was as a
“courtesy” to inform them of the accident. Tr. 270-71.

Ash Grove’s
negligence is compounded by the fact that it had constant notice of the reporting
requirement, as shown by evidence that establishes the presence at the time of at
least two posters at the mine displaying MSHA’s telephone number for reporting
accidents. Rasmussen photographed a poster showing the number that was posted
on the wall of the control room, the location from where Ash Grove called 911. Tr.
195; G. Ex. 8, p. 3. He also photographed a similar poster that was posted in
the break room of the main office. Tr. 195; G. Ex. 8 p. 4.  

For
the reasons set forth above, and especially for the purposeful nature of the
violation, the inspector’s high negligence finding is affirmed.

4.     
Gravity

The failure to
notify MSHA in a timely manner when a miner suffers an accident reasonably
likely to result in his or her death is a serious violation. Contacting MSHA
without delay and within fifteen minutes is one of the critical keys to an
effective investigation and an effective investigation is a vital element of
the agency’s mission to prevent replication.

5.     
Failure to Preserve
Accident Scene, Citation No. 8780423

Section 50.12
requires that after an accident, an operator refrain from altering the site where
the incident occurred and preserve the evidence until MSHA’s accident
investigation is complete. When an injury occurs at a mine with the reasonable
potential to cause death, the site of the incident is an “accident site,” and
the requirements of Section 50.12 are triggered. Black Beauty Coal Co.,
37 FMSHRC 687, 691 (April 2015). To establish a violation of Section
50.12, the Secretary must demonstrate that an accident occurred and that the
operator altered the site or evidence in some way, without MSHA’s permission,
and with no compelling justification (as anticipated by the standard). It is
undisputed that Gresham’s employee moved the truck from the scene of Cory’s
fall and washed it and that this was done before Rasmussen completed his
investigation. G. Br. 28; R. Br. 19; Tr. 304. The Secretary asserts that none
of the acceptable reasons to alter the accident scene existed. The Secretary
argues that:

1) MSHA’s
Western District Manager did not grant express consent, 2) the truck did not
need to be moved in order to recover or rescue a person, 3) there was no
immediate danger present, [and] 4) the truck did not need to be moved in order
to prevent the destruction of mining equipment.

G. Br. 28; Tr.
304-306.

Ash Grove relies
on its assertions that Cory’s injuries did not have the “reasonable potential
to cause death,” as contended in its challenge to Citation Number 8780423. R. Br.19
Because Cory’s injuries do not rise to the level of seriousness to be categorized
“an accident,” the prohibitions under Section 50.12 were not triggered. Id.
Ash Grove does not contend that an exception to 50.12 existed justifying the
move of Gresham’s truck, or that it sought MSHA’s permission to move the truck.
Therefore, the sole issue is whether the truck qualified as an “accident site,”
which in turn hinges on whether Cory’s injuries had the “reasonable potential
to cause death.” As discussed above, Cory’s eight foot fall and the resulting
injuries had a reasonable potential to cause death.[37] The event
was an accident, and the situs (i.e., the truck parked at the loadout) became
the “accident site.” Ash Grove had an affirmative duty to preserve the site so
MSHA could investigate. When Goad moved and washed the vehicle, the site was fundamentally
altered in violation of Section 50.12.

Goad, an Ash
Grove customer, rather than its employee, was never told to wash the truck; he
did it on his own. Tr. 304. With that said, the accident site was still within
Ash Grove’s control and a mine operator is held strictly liable for violations
that occur at its mine. Spartan Mining Co., 30 FMSHRC 699, 706 (Aug.
2008). The strict liability regime may be relaxed in limited situations, such
as when something occurs outside of an operator’s control. See Sec’y of
Labor v. Nat’l Cement of Cal., Inc., 573 F. 3d 788, 795 (D.C. Cir. 2009) (stating
that strict liability means liability without fault, but does not necessarily mean
liability for things that occur outside one’s control or supervision.). In this
case, Ash Grove had control of the situation, as the truck was washed on its
property, using its wash bay. Goad was never told by Ash Grove management to
keep the truck at the loadout. Tr. 304, 323. Ash Grove had the ability to intervene
and direct its customer to leave the truck at the accident site. It did not do
so.

For the reasons
set forth, the court finds the company violated Section 50.12 as charged.

6.     
Gravity

The failure to
ensure preservation of an accident scene is a serious violation. Investigation
of the unaltered scene with its evidence of an accident’s cause and
consequences is critical to the agency if it is to prevent similar accidents. Here,
where Ash Grove failed to prevent its customers from significantly changing
“the facts on the ground” following the accident, the company potentially
undermined the effectiveness of the agency’s preventative efforts and this in
and of itself was a serious failure on the company’s part.             

7.     
Ash Grove’s Negligence

Rasmussen
testified that he charged Ash Grove with “high” negligence because the operator
did not offer any mitigating factors or explain its actions in allowing Goad to
wash his truck before the MSHA investigation was complete. Tr. 318-19. Rasmussen
reasoned that the mine operator has the ultimate responsibility for what
happens on its site, and should have directed Goad not to move the truck. Tr.
319.

Because the
alteration of the accident scene was the result of a customer’s independent
action, the court finds the negligence attributable to Ash Grove for the
violation of § 50.12 to be moderate, rather than high. Tr. 304, 323. Ash Grove
could and should have been more diligent in notifying its customer that the
truck needed to remain unchanged and at the loadout pending MSHA’s
investigation. Ash Grove’s later action of taping off the vehicle evidences the
ability to control the movement of the truck on its property. Tr. 314. However,
Ash Grove had no reason to anticipate Goad’s intentional decision to alter the
scene.

IV.           
Other Civil Penalty Criteria and the Assessment of Penalties

The court’s
assessment of civil penalties must reflect consideration of the six penalty
criteria listed in the Mine Act. 30 U.S.C. § 820(i); Rex Coal Co., 38
FMSHRC 208, 214 (Feb. 2016). The criteria are: (1) the operator’s history of
previous violations; (2) the appropriateness of the penalty to the size of the
business; (3) the operator’s negligence; (4) the operator’s ability to stay in
business; (5) the gravity of the violation; and (6) any good-faith compliance
after notice of the violation. 30 U.S.C. § 820(i); Douglas R. Rushford
Trucking, 22 FMSHRC 598, 600 (May 2000).  

As a preface to
the analysis, it is important to emphasize that when conducting a penalty
assessment, weighing one factor more heavily than others is not an abuse of
discretion, provided that all six are considered. Jim Walter Res., Inc.,
36 FMSHRC 1972, 1979-80 (Aug. 2014); Thunder Basin Coal. Co., 19 FMSHRC
1495, 1503 (Sept. 1997). Any
substantial divergence of the court from a penalty proposed by the Secretary must
be explained in light of the criteria. Spartan Mining Co., 30 FMSHRC
699, 723 (Aug. 2008).

A significant
portion of the evidence presented is common to the operation as a whole, and
relevant to the civil penalty discussion for all of the violations. Four of the
criteria will be approached comprehensively, save for gravity and negligence, because
the facts relevant to those components are distinct to each citation. The
seriousness of each violation, and the operator’s culpability were discussed in
the analysis of each violation, and in this case, the gravity and negligence of
the violations are the crux of the court’s civil penalty determinations. See
Lopke
Quarries, Inc.,
23 FMSHRC 705, 713 (July 2001) (holding that a Commission judge did not abuse
his discretion by weighing the factors of negligence and gravity more heavily
than the other four statutory criteria); Musser Eng’g Inc., 32 FMSHRC
1257, 1289 (Oct. 2010).

A.   
History of Previous Violations

Generally, the operator’s past
violations of all safety and health standards are considered for this criteria.
Jim Walter Res., Inc., 28 FMSHRC 983, 995 (Dec. 2006); Peabody Coal
Co., 14 FMSHRC 1258, 1264 (Aug. 1992). One way of gauging all past
violations is to consider an operator’s rate of violations per inspection day. At the time of
the inspection Ash Grove’s violation per inspection date rate was .91, lower
than the non-metal industry average of 1.11 to 1.14. G. Ex. 1; Tr. 101. There
were also no lost time injuries or accidents reported in the fifteen month
period at the time of the inspection. Tr. 101. Generally bare information, such
as the number of violations, would not be relevant, but when coupled with a
qualitative assessment, the violation history becomes more important. Cantera
Green, 22 FMSHRC 616, 624 (May 2000); Secretary of Labor on behalf of
Hannah v. Consolidation Coal Co., 20 FMSHRC 1293, 1305 n.14 (Dec. 1998). Inspector Nelson
conceded that “[o]verall Ash Grove runs a pretty good operation.” Tr. 62. Nelson’s
concession that Ash Grove is not a prolific violator, coupled with the
relatively lower violation rate than comparable mines, militates in favor of lowering
the proposed penalties.

B.    
Size

The
court must determine whether the proposed penalties are appropriate in relation
to Ash Grove’s size. Ash Grove runs a large operation, including numerous mines
in various areas of the country. Tr. 106. No testimony or evidence to the
contrary was introduced. Ash Grove’s size does not warrant a reduction in the
proposed penalties.

C.   
Ability to Continue in Business

Ash
Grove did not aver that the Secretary’s proposed penalties, if assessed, will
affect its ability to remain in operation. The ability to pay is not in
dispute. The Commission has held that, “[i]n the absence of proof that the
imposition of authorized penalties would adversely affect [an operator's]
ability to continue in business, it is presumed that no such adverse [e]ffect
would occur.” Sellersburg, 5 FMSHRC at 294 (citing Buffalo Mining
Co., 2 IBMA 226, 247-48 (September 1973)); accord Spurlock Mining Co.,
16 FMSHRC 697, 700 (April 1994). See also Broken Hill Mining Co., 19
FMSHRC 673, 677 (1997). Ash Grove’s ability to pay the proposed penalties does
not warrant their reduction.

D.   
 Good Faith

The
operator’s good-faith
compliance after receiving notice of the violation must also be considered. The
parties stipulated that Ash Grove abated the citations in good faith. Tr.
248-250. Good faith is assumed, and Ash Grove’s timely compliance does not
warrant reduced penalties.

WEST
2014-963

CITATION NO.

DATE

30 C.F.R. §

PROPOSED PENALTY

ASSESSMENT

8780591

05/22/2014

18002(a)

$1,530.00

$0.00
(VACATED)

The
court will vacate Citation Number 8780591. As such, no civil penalty is
assessed.

CITATION NO.

DATE

30 C.F.R. §

PROPOSED PENALTY

ASSESSMENT

8611830

05/28/2014

14110

$1,530.00

$1,250.00

The
court finds that the violation was serious, and attributable to the company’s moderate
negligence. Given these findings, and the other civil penalty criteria, the
court assesses a civil penalty of $1,250 for the violation. The reduction is
based on Ash Grove’s commendable overall history of previous violations.

WEST
2015-503

CITATION NO.

DATE

30 C.F.R. §

PROPOSED PENALTY

ASSESSMENT

8780422

08/04/2014

50.10(b)

$5,000.00

$5,000.00

The
Secretary proposed a $5,000 civil penalty for Citation No. 8780422. G. Ex. 8. This
civil penalty represents the statutory minimum that the Secretary must assess for
a violation of an immediate notification violation. 30 C.F.R. § 100.4(c).  

Although section 110(a)(2) of the Act,
30 U.S.C. § 820(a)(2), speaks to the Secretary, not to the Commission, the
Commission has held that assessment of a non-flagrant violation of Section
50.10(b) is governed by Section 110(a)(2) of the Act and that the Commission’s judges
must adhere to the minimum and maximum statutory penalties set forth therein. Signal
Peak Energy, LLC, 37 FMSHRC 470, 483-84 (Mar. 2015). Accordingly, the court
has no choice but to assess the $5,000.00 penalty proposed by the Secretary.

WEST
2015-523

CITATION NO.

DATE

30 C.F.R. §

PROPOSED PENALTY

ASSESSMENT

8780423

08/04/2014

50.12

$2,000.00

$1,250.00

The
court finds that the violation was serious and attributable to the company’s
moderate negligence. The Secretary proposed a $2,000.00 special assessment for Citation
No. 8780423. G. Ex. 9; G. Ex. 10. The court finds that a penalty of $1,250 is
appropriate. The reduction is based on Ash Grove’s commendable overall history
or previous violations.

ORDER

For
the reasons set forth above, Citation No. 8780591 is VACATED. Citation
No. 8611830 and 8780422 are AFFIRMED as written. Citation No. 8780423 is
MODIFIED to reduce the level of negligence from “high” to “moderate.” Within
30 days of the date of this decision, Ash Grove SHALL PAY a civil
penalty of $7,500.[38]

/s/
David F. Barbour

David
F. Barbour

Administrative
Law Judge

Distribution: (Certified
Mail)

Daniel
Brechbuhl, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer
Blvd., Suite 216, Denver, Colorado   80204

John Nelson,
Esq., Ash Grove Cement Company, 11011 Cody Street, Overland Park, Kansas 66210

/md

[1]
Citation
Nos. 8780591 (30 C.F.R. § 56.18002(a)) and 8611830 (30
C.F.R. § 56.14110) were assigned Civil Penalty Docket No. WEST 2014-963.
Citation No. 8780422 (30
C.F.R. § 50.10)
was assigned Civil Penalty Docket No. WEST 2015-503. Citation No. 8780423 (30 C.F.R. §
50.12) was
assigned Civil Penalty Docket No. WEST 2015-523. Subsequently, the cases were
consolidated for hearing and decision.

[2] At the time of the hearing, Nelson
had been an MSHA inspector for seven and one half years. Tr. 19. Nelson
estimates that he has completed several hundred inspections during his MSHA
career. Tr. 20. Prior to working for MSHA, Nelson was an Environmental Health
Specialist for 16 years. Tr. 20. Nelson earned a bachelor’s degree in biology
at Gonzaga University in Spokane, Washington. Tr. 20. Before college he served
eight years in the United States Navy. Tr. 20.

[3] Nelson testified that the plant has
two types of elevators. The elevators in the administrative building are used
to transport passengers, while the elevators in the plant serve to move both
freight and miners. There are five elevators in total. Tr. 25-26. According to
Nelson, the “hoisting equipment” is compromised of the mechanical parts that
lift and lower the elevators. Tr. 26

[4] Nelson understood that when a
workplace examination is completed a written record is required which details
the exact workplace that was examined and describes the safety defects that
were identified. Tr. 39. These examination records must be kept for at least
twelve months. Tr. 36.

[5] Gerry Brown retired on May 24,
2014. Tr. 35. From that point forward, Nelson discussed citation and safety
issues at the plant with Craig Becker, who replaced Brown as health and safety
manager. Tr. 35.

[6] 30 C.F.R. § 56.18002(a) requires
that, “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 appropriate action to correct
such conditions.”

30 C.F.R. § 56.2 defines a “competent person” as “a
person having abilities and experience that fully qualify him to perform the
duty to which he is assigned.”

“Working place” is defined as “any place in or about a
mine where work is being performed.” 30 C.F.R. § 56.2.

[7] An S&S violation is a violation
“of such a nature as could significantly contribute to the cause and effect of
a . . . mine safety or health hazard.” 30 U.S.C. § 814(d).

[8] Richard Dreyer presently is a
Health Specialist in MSHA’s Dallas, Texas District Office, but at the time of
the inspection, Dreyer was an inspector in MSHA’s Kent, Washington Field
Office. Tr. 78. Dreyer has five years of experience working for MSHA and has
completed hundreds of inspections. Tr. 79. Before joining MSHA, he worked at a
sand and gravel operation in Washington state for seven or eight years. Tr. 79.

[9] Nelson testified that he initially
issued a citation to Ash Grove for its alleged failure to have a procedure for
inspecting and testing hoisting equipment, but that citation was vacated, and
the condition or practice cited was incorporated into Citation No. 8780591. Tr.
32-33; G. Ex. 3 p. 6. Dreyer modified the citation because Nelson had been
called to do an inspection in Alaska. Tr. 32-34.

[10] Section 57.18002 applies to the nation’s
underground metal and non-metal mines, whereas Section 56.18002 applies to the
nation’s surface metal and non-metal mines. The standards are identically
worded and the principals set forth by the Commission in FMC Wyoming pertain
to both.

[11] A “fatalgram” is a summary of an
accident by MSHA that is disseminated to the mining industry; it lists
recommended best practices for operators to avoid similar occurrences.

[12]
In support of the citation, Nelson stated that the areas immediately adjacent
to work areas and landings and hoisting rooms that miners might work on or
travel through in the performance of their work would be “working spaces,”
because these areas directly affect the safety of miners in a given location.
Tr. 29. Nelson testified that if “elevators are being used to transport persons
or material then that is work being performed,” and the elevators are an
integral part of the mining and milling process. Tr. 67, 73. He further
testified that because these areas were “working spaces,” the workplace
examination standard would require an inspection of the landings adjacent to
the elevator, the mechanical room, inoperable lights in the hoisting room
(adjacent to the elevator), communication devices in elevators, and call
buttons. Tr. 27, 71-72. Nelson explained that a lay person would not have
expertise in the minute, inner workings of an elevator, but should be able to
observe broken wire, loose connections, or frayed ropes, but the inner workings
should be inspected by whoever is contracted to maintain the elevator. Tr.
26-27.  

[13] The parties submitted MSHA Program
Policy Letter No. P15-IV-01 as Jt. Ex. 2. Tr. 68; Jt. Ex. 2. The Program Policy
Letter (“PPL”) was issued on July 22, 2015, months after the citation was
issued. The PPL adds that a working place “includes areas where work is
performed on an infrequent basis.” The PPL thus expands the definition of
working place to include not just actual working places, but potential places
that may be utilized less frequently. Tr. 58-59.

[14] Steve Minshall has been the
Corporate Director of Health and Safety for Ash Grove since 2008. Tr. 90.
Before 2008 he was Ash Grove’s Corporate Health and Safety Manager. Tr. 90. In
total, Minshall has been involved in industrial safety for 37 years. Tr. 90.
Presently he serves as the co-chair of the Portland Cement Association’s
Occupational Health and Safety Committee. Tr. 91. Minshall has an undergraduate
degree in biology and master’s degrees in public health, industrial hygiene,
and communication studies. Tr. 91. Minshall earned a Certified Safety
Professional Designation and is a Certified Industrial Hygienist. Tr. 91.

[15] 30 C.F.R. § 56.19120 requires:

[a] systematic
procedure of inspection, testing, and maintenance of shafts and hoisting
equipment shall be developed and followed. If it is found or suspected that any
part is not functioning properly, the hoist shall not be used until the
malfunction has been located and repaired or adjustments have been made.

[16] As discussed previously, Nelson
issued Citation Number 8780586 to Ash Grove for failing to inspect and test
hoisting equipment on the five mine elevators, in violation of 30 C.F.R. §
56.19120. G. Ex. 3 p. 6. This citation was terminated and incorporated in the
modified Citation Number 8780591. G. Ex. 3 p. 2; Tr. 32.

[17] As discussed above, Dreyer took
over the regular inspection of the Seattle Plant after Nelson was called to
another assignment. Tr. 112.

[18] “Four inch minus” designates the
approximate size of the material based on how it would fall through a screen.
Tr. 113. If rocks fall through a screen with holes that are four inches in
diameter, the rocks are classified as four inch. Tr. 113. The “minus” indicates
that there is additional smaller material included with the four inch rock,
including powdery material, like limestone. Tr. 114. I-beams are structural
supports, in this case structural supports beneath the conveyor. Tr. 122.

[19] The conveyor was not running at
the time Dreyer observed the material, but would have been running during
continued normal mining operations. Tr. 131. 

[20] A skid steer is a four wheeled
small machine with a bucket on the front to “move earth or crushed rock.” Tr. 163.
The machine steers by skidding. Tr. 163. It is akin to a front end loader, but
smaller in size. It is used to clean up more restricted areas. Tr. 163.

[21] A raw mill is the equipment used
to grind raw materials in the cement manufacturing process. Texas Comptroller, Audit Procedures for Cement Production Tax,
(2005), http://comptroller.texas.gov/taxinfo/audit/cement/ch1.htm;
Philip Alsop Et Al., The Cement Plant Operations Handbook 31,
(5th Ed. 2007). The raw mill’s lube room is an area that can be accessed to
store the lubricants necessary to maintain components such as gears and
bearings, and other supplies and equipment. Tr. 121. See generally Lube Room
Best Practices, Machinery Lubrication,
http://www.machinerylubrication.com/Read/29008/lube-room-essentials.
Dreyer testified that the travelway leading to the lube room’s mandoors is used
multiple times per shift. Tr. 116-117.

[22] The cited standard requires that,
“[i]n areas where flying or falling materials generated from the operation of
screens, crushers, or conveyors present a hazard, guards, shields, or other
devices that provide protection against such flying or falling materials shall
be provided to protect persons.” 30 C.F.R. § 56.14110.

[23] Craig Becker was first hired at
Ash Grove as a Manufacturing Development Engineer. Tr. 139. On the day of the
inspection he acted as a safety manager because the previous safety manager had
just retired. Tr. 139.

[24] Becker explained that the rejected
rock areas are locations where the rocks accumulate that are not properly
ground and are rejected by the raw mill. Tr. 142. There are two such areas, one
on the north side, and one on the south side of the mill. Tr. 142. Once the
rejected material accumulates to a certain extent, it is cleaned up with a
Bobcat or skid steer and reentered into the limestone pile used in the
manufacturing process. Tr. 142.

[25] Ash Grove states that a Bobcat or
skid steer used in the cleanup process accesses this particular area to turn
around, so the tire tracks could have been caused by that vehicle for another
reason. Tr. 141-42. The court finds this assertion unsupported by evidence or
testimony, and instead credits Dreyer’s assertion that a skid steer was in
place under an impacted area to clean up falling material.

[26] With
respect to the “reasonable likelihood of injury” element, the analysis must be
made assuming “continued normal mining operations.” U.S.
Steel Mining Co. (U.S. Steel III), 7 FMSHRC 1125, 1130
(Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC
1573, 1574 (July 1984). A proper S&S inquiry considers “the
violative conditions as they existed both prior to and at the time of the
violation and as they would have existed had normal operations continued.” Mach
Mining, LLC v. Sec'y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016), quoting
Knox Creek Coal Corp., 36 FMSHRC 1128, 1132 (2014); McCoy Elkhorn Coal
Corp., 36 FMSHRC 1987, 1991 (2014).

[27] The Commission has held that an
inspector's judgment is an important element in an S&S determination and
may be relied upon as part of the analysis. Harlan Cumberland Coal Co., 20
FMSHRC 1275, 1278 (Dec. 1998).

[28] When asked whether the hard hat
policy at Ash Grove, which requires all miners to wear hard hats, would change
his fatal designation, Dreyer stated:

Not at all. You know, if you consider the impact that
a rock or any hard object falling that distance is going to have, by the time
it gets to the ground it’s likely moving—in that 45-foot span it’s likely
moving in excess of 30 miles an hour. So picture a rock or something hitting
you at the speed. Imagine the force and ask yourself, what’s that hard hat
going to do[?] If the shell of the hard hat actually keeps its integrity and
does its job then it’s going to distribute that load to the suspension, and
that suspension delivers the load to your neck. So even if the hard hat is not
physically destroyed and that rock is pushed in to you, it’s going to take all
of that pressure, all of that load and all that velocity coming down and it’s
going to destroy your neck. You’re still going to reasonably have a fatal
injury.

Tr. 131.

[29] An air lance is a wand with a pipe
that is attached by a hose to a high pressure air compressor. When engaged, the
wand directs compressed air to a particular area. An air lance can be used to
blow accumulated material away and clean a particular area. The process is akin
to a power washer, but uses air instead of water. Tr. 182-83.

[30] Dreyer testified that before
starting his inspection he reviewed the report for the prior inspection at the
plant and discussed the report and findings with Mike Nelson, the MSHA
inspector who conducted it. Tr. 124.

[31] Inspector Rasmussen works at
MSHA’s Kent, Washington Field Office. At the time of the hearing he had worked
for MSHA for three and a half years. Tr. 185. Rasmussen completed required MSHA
training. He also completed an advanced accident investigation course. Tr. 185.
Rasmussen testified that he has conducted hundreds of accident investigations
on behalf of MSHA. Tr. 185. Prior to working for MSHA, Rasmussen was a
contractor at OSHA and MSHA regulated sites, where he was primarily responsible
for supervising crews and for training employees in safety and health
standards. Tr. 186. Rasmussen spent ten years in this capacity. He also served
in the United States Marine Corps. Tr. 186-87.

[32]
30 C.F.R.
§ 50.10, titled “Immediate Notification,” states:

The operator shall immediately contact MSHA at once without delay and within 15
minutes at the toll-free number, 1–800–746–1553, once the operator knows or
should know that an accident has occurred involving:

(a)
A death of an individual at the mine;

(b)
An injury of an individual at the mine which has a reasonable potential to
cause death;

(c)
An entrapment of an individual at the mine which has a reasonable potential to
cause death; or

(d) Any other accident.

[33] Section
50.12 states:

Unless granted
permission by a MSHA District

Manager, no
operator may alter an accident site

or an accident
related area until completion of

all
investigations pertaining to the accident

except to the
extent necessary to rescue or recover

an individual,
prevent or eliminate an imminent

danger, or
prevent destruction of mining

equipment.

[34] Gresham Transfer (“Gresham”)
purchases bulk product from Ash Grove. Gresham’s trucks come to the plant to
pick up the material and then haul it off site. Tr. 194. Gresham’s trucks park
at one of several “loadouts,” in this case Loadout Number 2, where the product
is loaded. Tr. 255.

[35] Carey Austell has been the plant
manager since September 2013. Tr. 253. Before working at the Seattle Plant
Austell was a foreman at Ash Grove’s Arkansas Facility for three years. Tr.

253. Austell has worked in the cement industry since 1992. Tr. 253. He also
     served in the United States Marine Corps for 26 years as an infantryman in
     which capacity he received a significant amount of first aid training. Tr.
     253-54.

[36] According to Ash Grove’s accident
report, an Ash Grove employee reported Cory’s fall to the plant control room at
2:01 p.m. R. Ex. 1. The control room operator immediately dialed 911. R. Ex. 1.
Becker, the acting safety manager, found out about the accident and arrived on
the scene at 2:05 p.m. R. Ex. 1; Tr. 192-93. Austell, the production manager
who had the final authority whether to make the call to MSHA, arrived to the
scene of the accident at 2:07 p.m. R. Ex. 1; Tr. 261. Regardless of whether
Becker and Austell knew about the accident at 2:01, 2:05, or 2:07 p.m., there
was still a more than 15 minute delay in calling the MSHA hotline.

[37] When an injury occurs at a mine
with the reasonable potential to cause death, the site of the incident is an
“accident site” and the requirements of Section 50.12 are triggered. Black
Beauty Coal Co., 37 FMSHRC 687, 691 (April 2015)

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