Secretary of Labor v. Acha Construction, LLC

Plain-English summary

An MSHA inspector cited Acha Construction at its Crusher 1 sand and gravel operation in Nevada for berms on a loading ramp that were not maintained at the height 30 C.F.R. § 56.9300(b) requires. Berms are the raised edges that keep a truck from going over the side of an elevated roadway. Acha admitted the violation but argued the inspector overstated how serious it was and how much the company was at fault. Judge Alan G. Paez upheld the citation in full, including the finding that it was significant and substantial and reasonably likely to cause a fatality, and the findings of high negligence and unwarrantable failure. He did reduce the penalty from the specially assessed $3,400 to $2,550, noting that rain may have worn the berms down, that Acha had no final-order violations in the prior 15 months, that it abated the same day, and that it was a very small operator running a single mine that had been closed since September 2015. The statutory minimum for an unwarrantable failure citation of this type is $2,000.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.9300(b)
• Outcome: Citation No. 8876244 was affirmed as written, with the penalty reduced from $3,400 to $2,550.
• Key point: A judge may affirm every gravity and negligence designation in a citation and still set a lower penalty, because the section 110(i) criteria are assessed independently of the Secretary's proposal.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

December 28, 2016

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner,

v.

ACHA CONSTRUCTION, LLC,

Respondent.

:     CIVIL PENALTY PROCEEDING

:

:     Docket No. WEST 2016-27-M

:     A.C. No. 26-02780-393232

:

:

:     Mine: Crusher 1

:

DECISION

Appearances:   Tara E. Stearns, Esq., and
Joseph M. Lake, Esq., Office of the Solicitor,      U.S. Department of Labor, San
Francisco, California, for Petitioner;

Cassie Delbridge, Acha
Construction, LLC, Elko, Nevada, for Respondent.

Before:                       Judge Paez

This docket is before me upon the Petition for the Assessment of Civil Penalty
filed by the Secretary of Labor (“Secretary”) pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977 (“Mine Act”),
30 U.S.C. § 815. In dispute is one section 104(d)(1) citation issued
to Acha Construction, LLC (“Acha” or “Respondent”). [1]
To prevail, the Secretary must prove any cited violation “by a preponderance of
the credible evidence.” In re: Contests of Respirable Dust Sample Alteration
Citations , 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek
Pocahontas Co. , 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom. ,
Sec’y of Labor v. Keystone Coal Mining Corp. , 151 F.3d 1096, 1106–07 (D.C.
Cir. 1998). This burden of proof requires the Secretary to demonstrate that
“the existence of a fact is more probable than its nonexistence.” RAG
Cumberland Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000) (citations and
internal quotation marks omitted), aff’d , 272 F.3d 590 (D.C. Cir. 2001).

I.
 STATEMENT OF THE CASE

On August 4, 2015,
the Secretary issued Citation No. 8876244 alleging Acha violated 30 C.F.R.
§ 56.9300(b) by failing to maintain the berms on a loading ramp at the required
height. The Secretary proposed a specially-assessed penalty [2]
of $3,400.00, which Acha timely contested. Chief Administrative Law Judge
Robert J. Lesnick assigned me this matter on March 16, 2016. Upon proper notice
to the parties, I held a hearing on October 4, 2016, in Elko, Nevada.

At the hearing, the parties
stipulated to the following items verbatim in a joint exhibit:

1. Respondent
   is an operator within the meaning of the Mine Act.

2. At
   the time Citation No. 8876244 was issued, Respondent was engaged in mining
   activities at the Crusher 1 Mine (“the Mine”).

3. At
   all relevant times, the Mine’s products entered commerce or affected commerce
   within the meaning of the Mine Act.

4. At
   the time the Citation was issued, Ernie Merkley was employed by Respondent as
   foreman at the Mine.

5. The
   ramp described in the Citation leads to a loading bin attached to a crusher at
   the Mine.

6. During
   the month before the Citation was issued, one or more of Respondent’s employees
   regularly used a CAT 966K front-end loader (“the front-end loader”) to travel
   up the ramp and dump material in the loading bin.

7. The
   wheels on the front end loader are 32 inches high at the mid-axle point.

8. The
   ramp was used by one or more of Respondent’s employees to dump material into
   the loading bin on August 3, 5, & 6[,] 2015.

9. At
   the time of the inspection, Respondent had no written policy regarding the use
   of berms and guardrails on roadways.

10. At the time of the
    inspection, Respondent had never disciplined any miner for failing to comply
    with MSHA standards related to berms on roadways.

11. The proposed penalty of
    $3,400, if paid, will not affect Respondent’s ability to remain in business.

12. Respondent abated the
    violation on the same day the Citation was issued.

13. Respondent has no history of
    violations that became final orders during the 15 months before the inspection.

14. MSHA assigned zero penalty
    points for Respondent’s size and the Mine size in calculating the proposed penalty.

(Joint Ex. 1; Tr. 16:5–17:21.) The Secretary presented
testimony from MSHA Inspector Patrick Barney. Acha presented testimony from its
former foreman Ernie Merkley and owner Cassie Delbridge. The parties presented
closing arguments at the hearing in lieu of submitting post-hearing briefs.

II.  ISSUES

For Citation No. 8876244, the
Secretary asserts that Acha violated 30 C.F.R. § 56.9300(b) [3]
by failing to maintain the berms on a ramp at the height required by the
standard. (Tr. 121:17–21.) The Secretary asserts that the violation should be
upheld as significant and substantial (“S&S”), [4]
inasmuch as it was reasonably likely to result in a fatality, and is a result
of the operator’s high negligence and unwarrantable failure. [5]
(Tr. 121:25–123:20.) In contrast, Acha does not contest the fact of the
violation but challenges the Secretary’s gravity and negligence determinations
due to mitigating factors. (Tr. 123:24–124:11.)

Accordingly, the following issues are before me:
(1) whether Citation No. 8876244 issued for a violation of 30 C.F.R. §
56.9300(b) was S&S; (2) whether Acha’s negligence in committing the
violation is “high” and constitutes an unwarrantable failure; and (3) whether
the Secretary’s proposed penalty against Acha is appropriate under section 110(i)
of the Mine Act.

For the reasons set forth below, Citation No.
8876244 is AFFIRMED as written.

III.  FINDINGS OF
FACT

A.        Operations at Acha’s Crusher 1

Acha operates Crusher 1, a construction sand and
gravel plant located two miles south of Carlin, Nevada on the Eureka Highway. (Tr.
24:1–18.) To produce sand and gravel for construction, Acha uses front-end
loaders to scoop up overburden around a given area or in a pit and feeds it
into a crusher. (Tr. 25:3–16.) The employee operating the front-end loader then
transports the collected material a couple hundred feet away up a ramp, which
is approximately six to seven feet high at its top and has a slope of 75
degrees. (Tr. 25:3–10, 31:22–32:2, 66:18–67:4; Ex. S–1 at 1.)  

Upon reaching the top of the ramp,
the front-end loader lifts the material overhead and dumps it into a loading
bin that feeds the crusher. (Tr. 25:3–16; 73:2–6.) A front-end loader can carry
up to two and a half tons of material. (Tr. 65:6–12.) The loading bin is
positioned above the crusher where the material is sized, washed, and sorted
into stockpiles through a system of conveyors. (Tr. 25:3–16, 31:4–9, 32:3–17.) Acha
owns two front-end loaders: one Caterpillar (“Cat”) 966K and one Cat 950G. (Tr.
32:24–33:4.) On a normal operating day, Acha feeds the loading bin constantly
throughout a shift, using the ramp approximately every 15 to 20 minutes. (Tr.
69:25–70:2.) Crusher 1 is a small, two-man operation where one employee
operates a front-end loader while the other employee watches the crusher. (Tr.
33:12–34:2; 91:7–11.)

B.        Inspection on August 4, 2015

On July 30, 2015, MSHA Inspector Patrick Barney was
driving to his office when he noticed a cloud of dust coming from Acha’s
Crusher 1 mine site. (Tr. 26:9–15.) He decided to conduct a spot inspection and
pulled into the mine where Acha foreman Ernie Merkley [6]
had been on duty. (Tr. 26:14–21; Ex. S–15 at 1.) Barney issued a citation for
the dust and served it to Merkley. (Tr. 26:22–27:5.)

Five days later, on August 4, 2015, Barney
returned to the Crusher 1 mine site to continue his spot inspection after
Cassie Delbridge, the mine’s owner, informed him that Acha had abated the dust
violation and was ready to terminate the citation. (Tr. 26:22–27:5.) Barney
arrived at the mine at approximately 6:00 a.m. (Tr. 28:8–11.) At the time, it
was light out, and the weather was clear and cool. (Tr. 28:8–11.) As soon as he
parked, Barney attempted to speak with foreman Merkley. (Tr. 28:1–20.) Merkley was
sitting inside the mine’s Cat 950G front-end loader. (Tr. 36:15–20.) According
to Barney, Merkley became upset and left the area without speaking to Barney. (Tr.
36:21–25; Ex. S–3 at 3.) Merkley did not accompany Barney as he continued his
spot inspection that day, despite normal practice for a member of mine
management to do so. (Tr. 40:4–16.) Instead, mine employee Luis Madris stayed
with the inspector. (Tr. 36:24–37:1; Ex. S–3 at 3.)

Inspector Barney advised Madris to call
Delbridge, who was responsible for safety at Acha. (Tr. 39:3–6; Ex. S–3 at 3.) Barney
then noticed that the mine’s Cat 966K front-end loader had been left unattended
without chocks in violation of MSHA’s standard, and he issued a second citation
to the mine. (Tr. 39:10–15; Ex. S–16.) After Madris abated the violation by
placing chocks on the front-end loader, Barney saw the mine’s other front-end
loader on the ramp to the loading bin. (Tr. 40:20–23.) From 100 feet away, Barney
noticed that the berms along the ramp were not high enough under MSHA’s
standard, which requires berms to be at least mid-axle height of the equipment
normally used on a roadway. (Tr. 40:22–41:1; Exs. S–2, R–2.) Barney testified
he could clearly see the loader tire behind the left-hand berm and tell the
berm was not high enough. (Tr. 83:8–10.)

A berm is a wall of dirt designed
to guard against mobile equipment going off elevated roadways, which typically
include ramps. (Tr. 71:1–7, 62:21–24; Exs. S–2, R–2.) Berms help prevent mobile
equipment from rolling over, which could lead to injury. (Tr. 70:14–21,
73:15–23.) Such injuries could include cuts from broken glass, neck and/or back
injuries, and suffocation from heavy material, like overburden, falling from
the elevated scoop of a front-end loader and burying the equipment operator in
the cab. (Tr. 73:15–23.)

Along the ramp, Inspector Barney identified
sections of berm that appeared nonexistent. (Tr. 41:3–7; Exs. S–2, R–2.) Barney
walked over to the ramp to take photographs and measurements of the berms and
front-end loaders. (Tr. 44:16–20.) The berm on the left-hand side facing the
loading bin varied from six to 19 inches, and the berm on the right-hand side
measured 25 inches. (Tr. 44:23–45:1; Ex. S–3 at 3.) The mid-axle height of the
Cat 966K measured 32 inches, and the mid-axle height of the Cat 950G measured
28 inches. (Tr. 48:2–17; Exs. S–3 at 3, S–1 at 4–5.) After taking measurements,
Barney found Merkley to ask about the condition. (Tr. 50:14–17.) Barney testified
that he learned from Merkley that the condition had existed for at least five
days and that the plant normally operated in this condition. (Tr. 51:1–3; Ex.
S–3 at 3.) Merkley knew berms must be built to the mid-axle height of routinely-used
equipment. (Tr. 51:5–6, 66:1–4, 89:4–6.)

Barney then issued section 104(d)(1) Citation
No. 8876244 for failing to maintain the berms at the required height. (Tr. 58:18–22;
Ex. S–1.) Barney wrote in relevant part:

At the loading bin the berms were measured
at 28 [sic] [7]
inches on the right side and 6 to 19 inches on the left. The Front End Loader
normally used to load the bin measured 32 inches at the mid-axle height. This
ramp is used constantly to load the plant. The ramp is approximately 7 feet
high with a 75 degree slope. In the event of an accident involving a rollover
fatal injury would reasonably expected to occur. Ernie Merkley-Supervisor
engaged in aggrevated [sic] conduct constituting more than ordinary negligence
in that he is the operator of the front end loader and allowed the condition to
exist for multiple shifts.

(Ex. S–1 at 1.) Barney designated the citation as an S&S
violation that was reasonably likely to result in a fatal injury to one miner. (Ex.
S–1 at 1; Tr. 79:24–80:12.) He also characterized Acha’s level of negligence as
high. (Ex. S–1 at 1; Tr. 77:10–15.)

To abate Citation No. 8876244, Acha rebuilt the
berms on the ramp. (Tr. 60:14–19; Ex. S–1 at 2.) Inspector Barney terminated the
citation around 1:30 p.m. on August 4, 2015. (Tr. 60:14–19; Ex. S–1 at 2.) Barney
later discussed the citation with Delbridge, who had no questions or comments
at the time. (Tr. 61:1–18.)

IV.  PRINCIPLES OF
LAW

A.        Berms or Guardrails under 30 C.F.R. § 56.9300(b)

Section 56.9300(a) requires operators to provide
and maintain berms or guardrails on the banks of roadways where a drop-off
exists of sufficient grade or depth to cause a vehicle to overturn or endanger
persons in equipment. 30 C.F.R. § 56.9300(a). Section 56.9300(b) further
provides that berms “shall be at least mid-axle height of the largest
self-propelled mobile equipment which usually travels the roadway.” 30 C.F.R. §
56.9300(b).

B.        Elements for S&S Violation

A violation is S&S “if, based
on the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co. , 3 FMSHRC
822, 825 (Apr. 1981). To establish a S&S violation, the Secretary must
prove: “(1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard—that is, a measure of danger to safety—contributed to by
the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.” Mathies Coal Co. , 6
FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); see also Buck Creek Coal, Inc.
v. Fed. Mine Safety & Health Admin. , 52 F.3d 133, 135–36 (7th Cir.
1995) (affirming ALJ’s application of the Mathies criteria); Austin
Power, Inc. v. Sec’y of Labor , 861 F.2d 99, 104 (5th Cir. 1988) (approving
the Mathies criteria).

The Commission has
recently explained that in analyzing the second Mathies element,
Commission Judges must determine “whether, based upon the particular facts
surrounding the violation, there exists a reasonable likelihood of the
occurrence of the hazard against which the mandatory safety standard is
directed.” Newtown Energy, Inc. , 38 FMSHRC 2033, 2038 (Aug. 2016). In
evaluating the third Mathies element, the Commission assumes the hazard
identified in the second Mathies element has been realized and
determines whether that hazard is reasonably likely to cause injury. Id.
at 2045 (citing Knox Creek Coal Corp. v. Sec’y of Labor , 811 F.3d 148,
161–62 (4th Cir. 2016); Peabody Midwest Mining, LLC , 762 F.3d 611, 616
(7th Cir. 2014); Buck Creek Coal , 52 F.3d at 135). The Commission
has further found that “the absence of an injury-producing event when a cited practice
has occurred does not preclude a determination of S&S.” Musser Eng’g,
Inc. , 32 FMSHRC 1257, 1280–81 (Oct. 2010) (citing Elk Run Coal Co. ,
27 FMSHRC 899, 906 (Dec. 2005); Blue Bayou Sand & Gravel, Inc. , 18
FMSHRC 853, 857 (June 1996)). Finally, the Commission has specified that
evaluation of the reasonable likelihood of injury should be made assuming
continued normal mining operations. U.S. Steel Mining Co. , 7 FMSHRC
1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co. , 6 FMSHRC 1573,
1574 (July 1984)).

C.        Factors for Unwarrantable Failure

The Commission has determined that
unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining Corp. , 9 FMSHRC 1997, 2001 (1987). It is
characterized by “indifference,” a “serious lack of reasonable care,” “reckless
disregard,” or “intentional misconduct.” Id. at 2003–04; see also
Buck Creek Coal , 52 F.3d at 136 (approving the Commission’s unwarrantable
failure test). Whether conduct is “aggravated” in the context of unwarrantable
failure is determined by looking at all the facts and circumstances of a case
to see if aggravating or mitigating factors exist. See IO Coal Co. , 31 FMSHRC
1346, 1350–51 (Dec. 2009). The Commission has identified several such factors,
including: the length of time a violation has existed, the extent of the
violative condition, whether the operator has been placed on notice that
greater efforts are necessary for compliance, the operator’s efforts in abating
the violative condition, whether the violation was obvious, whether the
violation posed a high degree of danger, and the operator’s knowledge of the
existence of the violation. See id. These factors are viewed in the
context of the factual circumstances of each case. Consolidation Coal Co. ,
22 FMSHRC 340, 353 (Mar. 2000). Because supervisors are held to a high standard
of care, another important factor supporting an unwarrantable failure
determination is the involvement of a supervisor in the violation. Lopke
Quarries, Inc. , 23 FMSHRC 705, 711 (July 2001) (citing REB Enters., Inc. , 20
FMSHRC 203, 225 (Mar. 1998)). All relevant facts and circumstances of each case
must be examined to determine whether an actor’s conduct is aggravated or if
mitigating circumstances exist. Consolidation Coal Co. , 22 FMSHRC at
353.

D.        Negligence Determinations

Commission Judges determine negligence
under a traditional analysis rather than relying on the Secretary’s regulations
at 30 C.F.R. § 100.3(d). Mach Mining, LLC v. Sec’y of Labor ,
809 F.3d 1259, 1264 (D.C. Cir. 2016) (quoting Brody Mining, LLC , 37
FMSHRC 1687, 1702 (Aug. 2015)). Each mandatory regulation carries a requisite
duty of care. Id . In the negligence determination, the Commission takes
into account the relevant facts, the protective purpose of the regulation, and
what actions would be taken by a reasonably prudent person familiar with the
mining industry. Id . In evaluating these factors, the negligence
determination is based on the “totality of the circumstances holistically” and
may include other mitigating circumstances unique to the violation. Id. (quoting
Brody Mining, LLC , 37 FMSHRC at 1703).

V.  ADDITIONAL
FINDINGS OF FACT, ANALYSIS, AND

CONCLUSIONS OF LAW

A.        Citation No. 8876244 – Failure to Maintain
Berms

Acha violated section 56.9300(b) by not maintaining
the berms on its loading ramp at the mid-axle height of the equipment Acha
normally used on the ramp. When Barney issued the citation, the berms measured
between six and 19 inches on the left side and 25 inches on the right side. (Tr.
44:23–45:1; Ex. S–3 at 3.) The mid-axle height of the mine’s two front-end
loaders were 32 inches and 28 inches. (Tr. 48:2–17; Exs. S–3 at 3, S–1 at 4–5.)
Acha does not deny that it violated the standard but disputes the citation’s S&S
and gravity designations, specifically the likelihood and severity of injury that
would result from the violation. (Tr. 103:12–15; 123:24–124:11.) Additionally,
Acha challenges the violation’s negligence designation due to mitigating
circumstances. ( Id .)

1. S&S and Gravity

To establish the first element of
the Mathies test, the Secretary must prove a violation of a mandatory
safety standard. Acha’s violation of section 56.9300(b) establishes the first
element of an S&S violation.

In regard to the second Mathies
element, the Secretary must show that the violation created a reasonable
likelihood the hazard that section 56.9300(b) aims to prevent would occur. Section
56.9300(b) mandates berms be maintained at mid-axle height of the largest
mobile equipment which usually travels a roadway. 30 C.F.R. § 56.9300(b). The
purpose is to prevent mobile equipment from rolling over on roadways where a
drop-off exists. See 30 C.F.R. § 56.9300(a); (Tr. 70:14–21). In
this case, the berms were not high enough to deflect the size and weight of
Acha’s front-end loaders, which could carry up to two and a half tons of
material. (Tr. 71:1–7, 65:6–12.) The ramp was narrow and just wide enough to fit
the wheelbase of the front-end loaders. (Tr. 72:13–23.)  Although a front-end
loader would travel up the ramp at a low speed, it is put in an unbalanced,
top-heavy position when it lifts material over the loading bin. (Tr. 73:2–6.) In
addition to not being high enough, the berms were made of loose, unconsolidated
material. (Tr. 71:1–7) Given these facts, I determine the hazard of a rollover
was reasonably likely to occur on the ramp because the berms were not high
enough and indeed woefully low in some areas to prevent machinery from going
over the berm.

With regard to the third Mathies element,
the Secretary must demonstrate a reasonable likelihood the hazard will result
in an injury. If a front-end loader rolled over because the berm was
insufficient height, an operator could be thrown about the cab from the
resulting seven foot drop. (Tr. 67:23–68:20, 73:15–21.) Additionally, the
material from the front-end loader’s bucket could fall onto the cab, potentially
breaking the cab’s glass and burying the operator. (Tr. 73:22–74:9.) Consequently,
I determine that the hazard of a rollover would reasonably likely result in
injuries, thus satisfying the third Mathies element.

Lastly, under the fourth Mathies element,
the Secretary must prove a reasonable likelihood that the resulting injury will
be of a reasonably serious nature. With regard to this element, Acha asserts
that any injury caused would not result in a fatality as Inspector Barney determined.
(Tr. 103:11–104:2.) Acha contends that both front-end loaders were equipped
with rollover protection, and if one of them were to roll over, it would be a relatively
small drop-off. (Tr. 103:11–104:2.) Acha also notes that its employees wear
seatbelts when operating the front-end loaders. (Tr. 103:11–104:2.)

Although Acha’s front-end loaders were equipped
with rollover protection and seatbelts, redundant safety measures are not to be
considered in determining whether a violation is S&S. Cumberland Coal
Res. , 717 F.3d 1020, 1029 (D.C. Cir. 2013); Knox Creek Coal Corp. ,
811 F.3d 148, 162 (4th Cir. 2016); Buck Creek , 52 F.3d at 135; Brody
Mining, LLC , 37 FMSHRC 1687, 1691 (Aug. 2015). Nevertheless, even rollover
protection and a seatbelt would not protect against up to two and a half tons
of material falling on top of a front-end loader’s cab. (Tr. 73:24–76:3.) The cab
of the front-end loader consisted of mostly glass, which in the event of a
rollover would likely break from the impact or from material falling on it. (Tr.
74:4–9.) An operator could reasonably likely be trapped underneath the material
and unable to maneuver his body, particularly if he had on a seatbelt. (Tr.
74:16–24.) The resulting injuries could include cuts, neck and back injuries,
and suffocation, which could lead to a fatality. (Tr. 75:1–6.) Given these
facts, I determine that the injuries expected to result from a rollover would
reasonably likely be serious or even fatal, thus satisfying the fourth Mathies
element.

Accordingly, the Secretary has
satisfied all four elements of the Mathies test. I conclude that Citation
No. 8876244 was appropriately designated as S&S.  For the same reasons, I
affirm the citation’s gravity designation as reasonably likely to result in a
fatality.

2. Unwarrantable Failure
   and Negligence

The Secretary asserts that Acha’s conduct
amounted to high negligence and an unwarrantable failure.  (Tr. 123:18–20.; Ex.
S–1 at 1.) In support, the Secretary argues that the violative condition
existed for multiple shifts and that Merkley admitted to knowing the violation
existed. (Tr. 78:2–7, 122:4–6.)  In contrast, Acha claims that rain from the
weekend prior to August 4 deteriorated the berms, which should be considered a
mitigating factor when assessing negligence. (Tr. 109:10–24, 124:5–7.) Additionally,
Acha asserts that the violation did not pose a high degree of danger and that
its employees were trained to MSHA standards. (Tr. 124:8–11; but see
Exs. S–8, S–10 (noting Foreman Meckley’s training records for 2015 were lost).)

In analyzing an unwarrantable
failure, I must consider the Commission’s factors for determining aggravated
conduct. See IO Coal Co. , 31 FMSHRC at 1350-51. The facts and
circumstances surrounding this violation unveil multiple aggravating factors. First,
the violation posed a high degree of danger because it was reasonably likely to
cause a serious or potentially fatal rollover as discussed above. See
discussion supra Part V.A.1. Second, the conditions were obvious, and
Inspector Barney noticed immediately that the berms were too low. (Tr.
40:24–41, 83:7–10.) Photographs of the ramp also showed that the berms were of inadequate
height and had deteriorated. (Exs. S–1, S–2.) Those photographs in conjunction
with Barney’s measurements demonstrate the condition was extensive given that the
berms were not up to standard for the entire length of the ramp. (Tr. 44:23–45,
48:2–17; Exs. S–1, S–2, S–3 at 3.)  In some places, the berms were nonexistent
or less than half of the required height. ( Id. ) Further, Barney
testified that Merkley informed him that the berms had been in such condition
for five days. [8] Barney
witnessed the ramp being used the day of the citation, and the mine’s reports
indicate that the ramp was also used the day prior. (Tr. 40:20–23, 17:2–4; Exs.
S–6 at 1, R–4 at 1.) The condition therefore lasted for multiple shifts. [9]
Lastly, Merkley knew the standard and acknowledged the berms were not high
enough. (Tr. 51: 5–6, 54:21–55:3, 66:1–4, 89:4–6, 92:19–32, 104:12–105:5; Ex.
S–4 at 1.) Merkley therefore had knowledge of the violation and yet operated
the mine’s front-end loader on the ramp.

The other unwarrantable failure
factors appear to be neither mitigating nor aggravating. The Secretary did not
present evidence that Acha had been placed on notice by MSHA that greater
efforts were required for compliance with the berm standards. In considering
the abatement factor, the Commission focuses on compliance efforts made prior
to the issuance of the citation or order. Enlow Fork Mining Co. , 19
FMSHRC 5, 17 (Jan. 1997). The record is silent on any abatement efforts made
prior to the citation’s issuance. Accordingly, I afford these factors no weight
in the unwarrantable failure analysis.

Because Merkley was a mine supervisor,
he is held to a higher standard of care, which he failed to meet by using the
ramp despite knowing the berms were inadequate. After considering all the
factors, particularly the high degree of danger, the violation’s obviousness,
and the operator’s knowledge, I conclude that the violation was the result of
the operator’s unwarrantable failure. For the same reasons, I also conclude
that Acha was highly negligent for failing to maintain the berms on the loading
ramp.

B.        Penalty

Under Section 110(i) of the Mine Act, I must
consider six criteria in assessing a civil penalty: (1) the operator’s history
of previous violations; (2) the appropriateness of the penalty relative to the
size of the operator’s business; (3) the operator’s negligence; (4) the
penalty’s effect on the operator’s ability to continue in business; (5) the
violation’s gravity; and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of a violation. 30
U.S.C. § 820(i).

The Secretary has proposed that Acha pay a specially-assessed
penalty of $3,400.00 for Citation No. 8876244. (Ex. S–4.) Acha has stipulated
that the proposed penalty will not affect its ability to remain in business. (Joint
Ex. 1; Tr. 17:11–13.) Additionally, I have upheld the Secretary’s S&S, gravity,
unwarrantable failure, and negligence designations. I note, however, that a
mitigating factor of rain may have affected the berms so that the violation may
not have existed in that condition for the five days prior to August 4. Additionally,
Acha had no history of violations that became final orders during the 15 months
prior to the inspection. (Joint Ex. 1; Tr. 17:16–18.) Nothing suggests that
Acha failed to make a good faith effort in attempting to achieve rapid
compliance after the citation’s issuance. In fact, Acha abated the violation on
the same day the citation was issued. (Joint Ex. 1; Tr. 17:14–15.) Lastly, at
the time of the inspection, Acha ran a very small operation, requiring only two
individuals to run the plant. (Tr. 33:12–20, 17:19–21.) Acha owns and operates
only one mine, Crusher 1, which has been closed since September 2015. (Tr. 98:12–15.)

Although I have affirmed the citation as
written, I am not bound by the Secretary’s penalty criteria. The minimum
penalty under the Mine Act for an unwarrantable failure section 104(d)(1) citation
is $2,000.00. 30 U.S.C. § 110(a)(3)(A). Taking into account
Acha’s size, history of violations, and good faith efforts to abate the violation,
as well as considering all of the facts and circumstances set forth above, I
hereby assess a civil penalty of $2,550.00.

VI.   ORDER

In light of the foregoing, it is
hereby ORDERED that Citation No. 8876244 is AFFIRMED . Acha Construction,
LLC is ORDERED to PAY a civil penalty of $2,550.00 within 40 days
of the date of this decision.

/s/
Alan G. Paez

Alan
G. Paez

Administrative Law Judge

Distribution:

Tara E. Stearns, Esq., U.S.
Department of Labor, Office of the Solicitor, 90 Seventh Street,

Suite 3-700, San Francisco, CA 94103

Cassie Delbridge, Acha Construction LLC, P.O. Box 2744,
Elko, NV 89803-2744

/ivn

[1] In
this decision, the hearing transcript, the Secretary’s exhibits, and
Respondent’s exhibits are abbreviated as “Tr.,” “Ex. S–#,” and “Ex. R–#,”
respectively.

[2] MSHA may elect
to waive the regular assessment under 30 C.F.R. § 100.3 if it determines that
conditions warrant a special assessment; when MSHA determines a special
assessment is appropriate, the proposed penalty will be based on the six
criteria set forth in section 100.3(a), and all findings shall be in narrative
form. 30 C.F.R. § 100.5(a), (b); (Ex. S–4).

[3] Section
56.9300(b)
provides:
“Berms
or guardrails shall be at least mid-axle height of the largest self-propelled
mobile equipment which usually travels the roadway .” 30 C.F.R. § 56.9300(b) .

[4] The
S&S terminology is taken from section 104(d)(1) of the Mine Act,
30 U.S.C. § 814(d)(1), which distinguishes as more serious any
violation that “could significantly and substantially contribute to the cause
and effect of a . . . mine safety or health hazard.”

[5] The
unwarrantable failure terminology is taken from section 104(d)(1) of the Mine
Act, 30 U.S.C. § 814(d)(1), which establishes more severe sanctions for any
violation that is caused by an “unwarrantable failure of [an] operator to
comply with . . . mandatory health or safety standards.”

[6] Ernie Merkley
has worked in mining since 1993. (Tr. 86:1–2.) Before working for Acha, Merkley
worked for Boehler Construction and Staker Parsons Companies. (Tr. 86:10–11;
Ex. R–6.) During rebuttal testimony, Inspector Barney revealed that Merkley was
terminated from his employment at Staker Parsons for violating the company’s
safety policy on locking and tagging out equipment. (Tr. 118:7–119:17.) There
is no evidence in the record that Acha had knowledge of the reasons behind
Merkley’s termination prior to hiring him, nor did Merkley himself comment on
the incident at hearing.

[7] Barney acknowledged
a typo; the actual berm height was 25 inches. (Tr. 63:10–24.)

[8] Inspector Barney
testified that Merkley told him that the violative condition had existed for
five days, that the ramp was normally used in such conditions, and that Merkley
normally operated the front-end loader. (Tr. 51:1–4; 54:24–56:14; 65:20–24.) Barney
took thorough notes of his inspection, including his conversations with Merkley.
(Tr. Ex. S–3 at 3.) Merkley, on the other hand, testified that he could not
remember any of the conversations he had with Barney that day. (Tr. 92:6–12,
94:20–95:17.) Given Inspector Barney’s detailed notes of the encounter and that
Merkley did not deny making such statements, I credit Barney’s testimony
regarding the conversation. See In re: Contests of Respirable Dust Sample
Alteration Citations , 17 FMSHRC 1819, 1878 (Nov. 1995) (“Since the ALJ has
an opportunity to hear the testimony and view the witnesses[,] he [or she] is
ordinarily in the best position to make a credibility determination.” (quoting
Ona Corp. v. NLRB , 729 F.2d 713, 719 (11th Cir. 1984))). See also Eastern
Assoc. Coal Corp. , 32 FMSHRC 1189, 1196–97 n.8 (Oct. 2010) (Commission has
recognized an ALJ’s credibility determinations are entitled to great weight and
may not be overturned lightly).

[9] Although Acha argues
that rain the weekend prior to the citation contributed to the berms’
deterioration, Acha’s meteorological evidence shows a rain event but is
inconclusive because it did not provide data for, and thus correspond with, the
mine’s exact location. (Tr. 107:22–109:1, 109:18–22, 112:8–114:2; Exs. S–17,
S–18, S–19.) Even if rain did occur over the weekend and eroded the berm, Acha
failed to repair the berm before returning the plant to operation on Monday,
August 3, 2015. (Tr. 114:23–115:2; Exs. S–6 at 1, R–4 at 1.) The following day
on August 4, Inspector Barney witnessed Acha using the ramp and thus issued the
citation. (Tr. 40:20–23 , 58:18–22 ; Exs. S–1,
R–1.) I note that although Barney was at the mine site on July 30 when he
issued the citation for a dust violation, he did not find any problem with the
berms at that time. Thus, it is possible a rain event occurred, further eroding
the berms. Indeed, photos provided by Acha demonstrated soil moved due to the
effect of running water. (Tr. 106:7 – 107:21; Ex. R – 2, S – 2.) It is
possible the violative condition existed for five days but that the intervening
rain over the weekend worsened the berms’ deterioration by the time Barney
returned to the mine on August 4. Nevertheless, the record demonstrates that
the violative condition lasted for five days, regardless of whether a rain
event occurred the weekend prior.