U.S. Silica Company v. Secretary of Labor and Secretary of Labor v. U.S. Silica Company

Plain-English summary

A large slope failure at U.S. Silica's West Virginia surface mine covered a bench and the only access road into the pit, yet the company cleared the road and resumed work without maintaining the highwall or preventing another slide. Judge Margaret A. Miller affirmed an S&S highwall-maintenance citation as a high-negligence unwarrantable failure, finding that spotters did not correct the unstable wall and would only watch a fall occur. She also affirmed an S&S citation for loose material above an area where fresh tire tracks showed that miners had recently worked beneath a 175-foot highwall. The Judge found high negligence on the second citation because the mine continued working below loose material shortly after the major wall failure. She assessed $10,000 for the first citation and $12,248 for the second, totaling $22,248.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.3130, 56.3131, and 56.3200
• Outcome: Both highwall citations were affirmed as S&S, the first as an unwarrantable failure, and penalties totaling $22,248 were assessed.
• Key point: Spotters and road cleanup do not satisfy the duty to maintain highwall stability or correct loose material before miners work or travel below it.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19th
STREET, SUITE 443

DENVER, CO 80202-2536

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

August 10, 2015

U.S. SILICA COMPANY,

Contestant,

v.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION, (MSHA),

Respondent,

SECRETARY OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION, (MSHA),

Petitioner,

v.

U.S. SILICA COMPANY,

Respondent.

CONTEST PROCEEDINGS

Docket No. WEVA 2014-802-RM

Citation No. 8715732; 04/08/2014

Docket No. WEVA 2014-803-RM

Citation No. 8416877; 04/02/2014

Mine: Berkeley Plant

Mine ID: 46-02805

CIVIL PENALTY PROCEEDINGS

Docket No. WEVA 2014-970-M

A.C. No. 46-02805-351338

Docket No. WEVA 2014-1120-M

A.C. No. 46-02805-354304

Mine: Berkeley Plant

DECISION

Appearances:               Daniel
McIntyre, United States Department of Labor, Office of the Solicitor, Denver,
Colorado for Petitioner;

Justin Winter, Law Office of
Adele Abrams, P.C., Beltsville, Maryland for Respondent.

Before:                                    Judge Miller

These cases are before me on notices
of contest filed by U.S. Silica Company and petitions for assessment of a civil
penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(d).  These dockets involve one 104(d)(1) citation and twelve
104(a) citations with a total proposed penalty of $26,814.00.  Prior to the
hearing, the parties reached a settlement of eleven of the 104(a) citations.  On
June 10, 2015 the court issued an order approving partial settlement addressing
those eleven 104(a) citations.  The two remaining citations, one a 104(d)(1)
and the other a 104(a), remained for hearing.  The parties presented testimony
and evidence regarding the two remaining citations at a hearing held on June 24,
2015 in Washington, D.C.  The parties have stipulated to the jurisdiction of
MSHA and the Commission and have entered into other stipulations regarding the
penalty criteria that are discussed below.

I.  
FINDINGS OF FACT AND CONCLUSIONS OF LAW

U.S. Silica Company’s Berkeley Plant
is a surface silica mine in Morgan County, West Virginia.  The mine produces
ground silica using open-pit mining methods.  The mine typically blasts an
area, then loads the material onto haul trucks and transports it to a stockpile
area.  The material is then crushed and processed on-site.  The pit uses a
loader and two to three haul trucks during mining activity.  The mining
activity has left a limestone highwall, the upper portion of which is covered
by soil and vegetation.

Both of the citations at issue
in this proceeding involve the maintenance and stability of a highwall and,
more specifically, the soil and slope of the highwall.  The stability of a
highwall depends on a number of variables, including its height, geology, and
the angle of the wall.  The stability of soil also depends on the angle, soil
composition, slope, and the raveling and erosion of material.  In addition to
blasting, mines normally use benching and scaling to control highwalls.  Generally,
benches are placed above the working area to “catch” and help control rock and material
that rolls or falls from the highwall.  Scaling is used to remove loose or
hanging rock and material before it falls.  All mines, no matter which method
or methods are used to control the highwall, must be vigilant in watching the
movement and the changes of the highwall.

On Sunday, March 16, 2014 a
slope failure occurred on the western wall in the northern pit of the Berkley Plant.
 The western wall is separated into an upper and lower section by an old haul
road which, in this instance, acted as a catch bench.  The upper section of the
limestone highwall was approximately 200 feet high and sloped at a 45 degree
angle.  In most places the limestone was not visible and was covered by soil
and vegetation, some of which had been in place for many years.  The highwall
failure resulted in soil and other material near the top of the wall falling
down into the pit.

The old haul road, which was acting
as a bench, was no longer in use as a road and had been bermed on both ends to
prevent access.  The mine did not consider the road a catch bench, nor did it maintain
it as a catch bench.  The bench varied from 25 to 50 feet wide, and the soil
and material that slid down from above on March 16th covered a good portion of
the length of the bench up to ten feet deep.  In addition, soil and material
that were not caught by the bench traveled all the way to the bottom of the pit
and covered the access road below, which was the only means of entry into the
bottom of the pit.  The north portion of the mine was not in operation at the
time of the failure on Sunday, March 16th.  Following the failure, the mine,
over the course of roughly four days, cleaned up the material that covered the
access road to the bottom of the pit.  The mine did not clean the bench or
remove any material from the highwall.

On April 2, 2014 MSHA Inspector
James Slick traveled to the mine to conduct a regular inspection.  Slick, who
has 11 years’ experience as a mine inspector and 32 years’ experience as a
miner, was not aware of the slide and was not told of the slide by any
management person.  Rather, one of the miners mentioned the slide to him after
he arrived at the mine.  Slick traveled to the pit area and, upon seeing the
area of the slide, said that the “hair stood up [on] the back of [his] neck.”  (Tr.
60).  He observed the stain on the highwall from the slide, and could see its
path over the old haul road that was acting as a bench and across the access
road leading to the pit.  Miners were working in the pit below the slide area at
the time, and the bench above had not been cleared, nor had any steps been
taken to maintain the highwall in a condition that would prevent further sliding. 
Slick immediately told the miners who were working in the pit to move out and
barricade the area.  Based on his observation, he issued a 104(d)(1) citation
for failing to maintain the highwall.

Sec’y Ex. 4 p. 2 is a photograph
of the access road into the pit, and shows the area where miners were working
when Slick arrived.  Sec’y Ex. 4 p. 3 shows the active area of mining,
including loose rock on the left portion of the picture.  The brown material on
the right hand side of the road in the photograph is the area of the fall.  The
old haul road that acted as a catch bench can be seen on the right hand side of
the picture and was covered nearly in its entirety by the slide debris.

Slick explained that the active
access road into the pit is directly below the highwall and is used by both
pickups and haul trucks, as well as other mobile equipment, to enter and exit
the pit.  Slick questioned the mine about the cleanup of the fallen material
that covered this active road.  He was told that it took four days for the mine
to clean up the material at the bottom of the pit so that it could re-enter the
pit to work.  In Slick’s view, if the failure had happened at a time when a
miner was traveling the pit haul road, the slide would have engulfed them and
there would have been no chance of getting out alive.  Slick testified that a
haul truck driver, a front end loader operator, or any other miner in the area,
“wouldn’t stand a chance.” 

At hearing, the mine explained that
its cleanup efforts were undertaken in order to resume operations, but there
was no credible testimony regarding the mine’s plans for preventing further
slides during the time between when the slide occurred and when Slick issued
the citation.  In addition, the mine presented no evidence or efforts it had
made to maintain the highwall prior to the slide described by Slick. Slick questioned
the mine about the old haul road that acted as a catch bench and learned that the
mine did not designate the road as a catch bench and therefore did not see the
need to maintain it, before or after the slide. Instead, the road had been
closed off because it was no longer useful.  Although the mine cleaned the
active access road into the pit after the slide so that work could resume, it
did not clean off the bench above, or take any other measures to scale down the
loose debris that was seen on the highwall.  Slick explained that the old haul
road, operating as a bench, was not maintained, nor was it adequate prior to
the slide of material.  According to Slick, there was a definite potential for
another slide and the old haul road was less likely to be able to function as a
catch bench since it was full of material.  

Slick explained that he cited
the mine under 30 C.F.R. § 56.3130 because the standard addresses mining
methods and safety benches.  Here, the bench was not maintained prior to or
after the slide, nor did the mine employ any methods to ascertain that the highwall
was safe.  As a result, Slick opined that a serious hazard was present both prior
to and after the slide.  According to Slick, the highwall had the same
potential to slide on April 2nd as it did on March 16th, but on April 2nd the
bench was mostly full and would not have been able to catch a large portion of any
sliding material.  The miners were working in a pit where they could not
evaluate the highwall, could not scale, and could not control any slide of
loose material.

The mine explained that it used
spotters to watch the highwall during the removal of the slide material from the
access road.  However, because spotters were not necessary after the access road
was reopened, none were in place when Slick arrived.  Slick addressed the mine’s
use of spotters and indicated that, while spotters may have some use in
watching the highwall, they are not a substitute for maintaining the highwall in
a safe condition.  Rather, spotters are simply in place to warn miners working
in the pit in the event they see rock or other material begin to slide.  In
Slick’s opinion, any warning would be too late and would do little to protect
the miners.  

Slick explained that highwalls
change minute by minute and operators are expected to be constantly aware of
the conditions.  Slick observed material on the catch bench that had
accumulated prior to the March slide but had not been removed.  After seeing the
aftermath of this slide, Slick inspected the entire highwall and observed one other
area that he considered a hazard.  That area, however, had been barricaded with
cones.  Slick observed loose trees, stones and dirt along the highwall and
understood that the mine had taken no purposeful steps in the weeks following
the slide to improve the highwall or to mitigate against a future slide.  Given
the lack of any meaningful steps to mitigate against a failure both before and
after the March 16th slide, he assessed the negligence as high.

A team from the MSHA Technical
Support Division investigated the highwall failure on April 8, 2014.  The MSHA
team observed areas that indicated previous movement and instability of the
soil and observed raveling of material just south of the slide area when
conducting the investigation.  The team determined that, at the time of the
slope failure, the falling material mounded along the upper section of the
highwall, covered the bench below, and then slid into the active pit area.  The
team observed that overburden material, soil and vegetation were present above the
pit and had not been cleared away or benched back from the edge of the
highwall.

According to the team’s report,
the lower section of the pit was being actively mined for sandstone along the
eastern side, resulting in a 150 foot highwall sloped at 45 degrees.  Some of
the fallen material from the upper section of the highwall was visible on this
lower section.  The failure area was estimated to be 150 feet wide, narrowing
to 50 feet at the lower section of the pit.  According to the MSHA investigation
team, it took four days to clear the fallen material from the pit.  Moreover, material
had not been cleared from the bench at the time of the inspection, nor had any
other action been taken to scale or maintain the highwall.

Jarrod Durig, a MSHA mining
engineer and supervisor who regularly assesses highwalls and slope stability, was
one of two engineers from MSHA’s Technical Support Division to visit the slide
area at the Berkeley pit.  Based on his observations, he and another MSHA
engineer generated a report and assisted the mine in finding ways to bring the
highwall into compliance.  Durig opined that the mine used no method whatsoever
to control the highwall.  He noted that the only bench in place was inadvertently
created by the mine when it abandoned its old haul road. 

Durig’s review found that the
Berkeley pit contains a sandstone layer and a lighter colored strata of limestone,
as shown in the photographs, Sec’y Ex. 4.  The darker material seen in the
photographs is the soil, which is prominent in the area.  The sandstone is on
top of limestone and, as the sandstone was mined down over time, loose material
slid and got hung up on the highwall or on the irregularities in the limestone
strata.  Loose soil was present on April 8th when Durig visited the mine and he
observed a new slide near the barricade of the pit.  In addition, Durig observed
water and active raveling both of which are signs of slope instability.  He
also observed that the upper portion of the wall, not a part of the current
slide, held a large accumulation of soil.  Further, there were other locations
on the highwall that had dormant vegetation and large accumulations of soil,
including trees near the top of the wall that had fallen over or were leaning.  I
find Durig to be a knowledgeable, experienced witness.  His analysis of the
highwall, its condition, and the necessary steps to bring the highwall into
compliance are well thought out and based upon, not only the evidence but his
first hand observations. 

Durig explained that there were
two aspects to this highwall, the hard rock area and the soil area also
referred to as the slope.  Here, the hazard was not necessarily the rock
formation, but was more the loose soil slope on the highwall. Soil or slope is
weaker than highwall, and a 45 degree incline is the upper boundary of an
acceptable slope.  Because soil is not nearly as stable as rock, it must be
addressed and brought down to maintain the integrity of the highwall in
general.  Most mines create benches to control soil and falling material, but,
here, the old haul road had not been maintained and only accidently acted as a
bench to control a portion of the slide.   Durig saw nothing that indicated the
mine had made any effort to deal with the soil, the slope, or the bench, nor
had it taken steps to mitigate the hazard created by the loose material on the
wall both before and after the slide in March. 

Although no slide occurred while
Durig was at the mine, the raveling and the state of the soils and vegetation
indicated impending failure.  On cross examination, Durig again explained that
there is no way to predict an imminent ground failure, but the geometry of the
slope, the loose material, the dead vegetation and trees, and erosion all
demonstrated that the stability of the slope he observed was marginal at best. 
Durig saw no indication that any mitigation was done prior to the slide or in
the period of time after the slide but prior to the issuance of the citation.   He
agreed with Slick that spotters are not a substitute or control of a highwall.

Following the issuance of the
citation, MSHA, the mine, and contractors hired by the mine, engaged in
discussions regarding a plan to bring the highwall into compliance.  The
contractors started work in October and finished around November 21st. 
One contractor came in to scale the highwall, remove loose rock, and take down
the loose soil.  Another contractor addressed the top of the highwall by
removing material in order to give the top a better slope, and creating berms
and a new road at the top.  The same contractor cleaned the old haul road, established
it as a catch bench, and put berms on it to increase its storage capacity.  Durig
opined that the mine could have done this work over time and well before the
slide.

The mine operator called John
Head, a mining engineer, as an expert.  Head has been involved in a variety of
activities in the mining industry.  He has a mining engineering degree and a
master’s degree in management.  Head became involved in this matter on April 10,
2014, just over one week after Slick issued the 104(d)(1) citation, when he was
contacted by someone from the office of the attorney representing the mine in
this proceeding.  Head, like Durig, prepared an expert report and testified at
hearing.

Head reviewed the citation and visited
the mine on April 14th.  He observed the slide area, with no slide material left
in pit, and could see the slide had filled the old haul road.  It was his
opinion that there was no large scale instability at the time.  He noted that,
with the highwall at an angle of 45 degrees, raveling could result in loose
material rolling down.  He observed some small areas where there was raveling
but, generally, the highwall was stable.  According to Head, his duty was to
address both the stability and the safety of the highwall, and those two things
are not always comparable.  There was no evidence of instability in his view,
but there were issues involving safety that needed to be addressed.  Specifically,
he expressed concern regarding areas of the brow, areas where trees had leaned
over indicating that material had moved, and isolated areas with loose rocks
that needed to be addressed because the catch bench was full.  While he
believed that a bench was desirable, he did not think it was absolutely
necessary.  He did not see conditions that would cause a failure in the next
few days, or serious conditions like water or a bulge at the toe, but he did
see conditions that needed to be addressed in the long term.

Head’s report included a list of
steps the mine took after the slide, and he discussed those steps during his
testimony.  Head explained that, among other things, the mine took steps to remind
miners about being diligent and staying away from highwall, conducted
examinations of the highwall to look for signs of additional movement, decided
to cease work in the pit if rainfall made the soil unstable, and used spotters
to inspect the highwall during cleanup.  Head agreed that the use of spotters is
not the answer to instability and, instead, in his view, only adds a measure of
safety by possibly providing an early warning of a slide or fall.  He noted
that spotters were not used after the cleanup because the mine did not observe
any movement of the soil or highwall and thought the spotters were no longer
necessary.  Head offered little testimony regarding the conditions prior to the
slide, or during the time after the cleanup of the access road but prior to the
inspection by MSHA.  Instead Head’s testimony focused on the means used by the
mine to mitigate against the potential for an accident during the week the mine
was cleaning up the fallen material.  Head stated that the actions of the mine
reasonably provided for mitigation, but they did not eliminate the hazard.  The
hazard was removed when the mine brought in a contractor to take back the brow
and rake across the highwall to take down loose material.  After the highwall
was addressed, some accumulation of material remained.  The contractor also
cleaned off the catch bench so it was available for use, adding to the safety
of the area.  He agreed that the mine could have taken steps and remedied the
unsafe condition of the area prior to the fall in March. 

The two experts in this case
offered substantially similar testimony.  However, I give greater weight to the
testimony of Durig who has more experience specifically with highwalls and the
geology of highwalls.  Further, Durig’s education is more directly related to
the issue at hand and he addressed the condition of the highwall and the length
of time that the highwall was left to deteriorate without any work being done
by the mine.  Head, on the other hand, discussed what was done to clean up the
fall in the one area, and what was done to abate the violation.  He did little
to shed light on the violation itself and the conditions that existed at the
mine before the slide.

Citation No. 8716877

The Violation

On April 2, 2014 MSHA Inspector
James Slick observed the bench and the slide area of the Berkeley Plant as
described above.  He observed that the large ground failure caused material and
debris to fill the bench from end to end and to cover the haul road into the
pit below.   Because Slick believed that the condition of the wall and the
bench continued to pose a hazard, the equipment was removed from the pit and
the area was barricaded and posted immediately.  During the course of the inspection,
Slick learned about the highwall failure on March 16, 2014, approximately two
weeks prior to his arrival and given his observations issued Citation No.
8716877 on April 2, 2014 pursuant to section 104(d)(1) of the Act for an
alleged violation of 30 C.F.R. § 56.3130.  The standard requires mines to use
methods that will maintain the wall, bank and slope stability in places where
persons work or travel, and, when benching is necessary, to maintain the
benches.  The requirements that the quarry wall be sloped back, as found in 30
C.F.R. § 56.3131, and that hazardous ground conditions be corrected, as found
in 30 C.F.R. § 56.3200, are also applicable in this circumstance.  The citation
alleges that the mine failed to maintain a safety bench on a highwall.  Slick
determined that the condition was reasonably likely to result in a fatal
injury, was S&S, affected one person, and was a result of the operator’s
high negligence and unwarrantable failure to comply with the mandatory
standard.  The Secretary has proposed a civil penalty in the amount of
$5,503.00 for this alleged violation.

The Secretary argues that the
mine failed to maintain the highwall and that the only catch bench was in place
by accident.  Specifically, the Secretary argues that the mine did not use any
method to maintain the wall, bank or slope above the area where persons were
working, nor did it maintain the bench.

U.S. Silica argues that, because
it did not incorporate benching into its mining method in the area, it was not
required to maintain the old haul road as a bench.  Moreover, because there was
no evidence of large scale instability on the wall, the mine complied with the
standard.  The mine presented no evidence of the condition of the highwall
prior to the failure, or any actions taken to maintain the highwall prior to or
after the slide and therefore I agree that the violation occurred as cited.

The Commission has explained
that section 56.3130 is a “clear,” Connolly-Pacific Co., 36 FMSHRC 1549,
1553 (June 2014), “performance-oriented” standard intended to require mining
methods that maintain ground stability.  Cyprus Tonopah Mining Corp., 15
FMSHRC 367, 374 (Mar. 1993).  The standard requires that benches, when used as
a method of control, must function as catch benches and must be maintained in
order to prevent falls of ground to the area below.  The plain language of the
standard, when read in conjunction with sections 56.3131 and 56.3200, requires
operators to “maintain highwall stability and correct hazardous conditions
before work or travel takes place.”  Connolly-Pacific Co., 36 FMSHRC
1549, 1553 (June 2014).  The evaluation of whether a violation occurred is
measured against the standard of whether reasonably prudent person familiar
with the factual circumstances would recognize that a hazard, as contemplated
by the standard, existed.  Id.  (citing Alabama By-Products Corp.,
4 FMSHRC 2128, 2129 (Dec. 1982)).  In this case, the mine failed to maintain
the highwall at all, offering no information about the stability of the wall or
the slope, or about steps that had been taken to bring down loose material or
to provide or maintain an adequate bench to catch any sliding material.

MSHA’s Program Policy Manual provides
additional guidance regarding the standard and requires that “a bench located immediately
above the area where miners work or travel be maintained in a condition
adequate to retain material that may slide, ravel, or slough onto the bench
from the wall, bank, or slope.”  IV MSHA, U.S. Dep't of Labor, Program
Policy Manual, Part 56, at 10 (2010) (“PPM”).   The MSHA guideline also
indicates that if it is too hazardous to maintain a bench, other measures,
including ceasing mining in the area or placing a berm at the base of the wall
which prevents material from entering areas where miners work or travel, may be
utilized.  Id. at 10-11. 

In Cyprus Tonopah Mining
Corp., 15 FMSHRC 367, 374 (Mar. 1993), the Commission upheld a judge’s
finding that a violation of section 56.3130 existed where material had
accumulated on catch benches such that the benches could no longer catch
material and protect persons working below.  There, the Commission stated that
“evidence regarding the state of the benches . . . and [the mine’s] failure to
clean them is probative of the stability of the walls, banks, and slopes[.]”  Id. 
The Commission, in affirming the judge’s decision, confirmed that the judge
properly found that a reasonably prudent person would have recognized that the
standard was violated.  Id. at 375.  Like in Cyprus, U.S. Silica
allowed the bench to accumulate material to such a degree that it was rendered
ineffective. 

In Connolly-Pacific Co.,
36 FMSHRC 1549 (June 2014), the Commission upheld this court’s finding that a
violation of section 56.3130 existed where the mine failed to maintain the
stability of a highwall.  There, the court relied upon photographs and expert
testimony to find that the mining method employed by the mine, which did not
involve the use of scaling or benching a 300 foot highwall, and instead
involved allowing rock to slide down the highwall before being removed by a
loader operator at the base, did not maintain the highwall in conformity with
the standard.  

Here, I find that the mine
offered no explanation about the general condition of the highwall prior to the
failure, or how they considered and controlled the highwall and slope.  Instead
the mine essentially agreed that, while the old haul road may have acted as a
bench in this instance and caught some material, it was purely by accident and the
mine had no intent of making it a catch bench.  As a result, the mine did not maintain
it as a bench.  Given that the mine did not scale the highwall, have any record
of the wall’s movement or stability, use any means to clean up the loose
material at the top, or maintain a bench, it violated the standard in every
respect.  While benching may not be a requirement under the standard, the mine
failed to employ any mining method to maintain ground stability and
prevent the type of failure which had already occurred.  I reject the mine’s
argument that it complied with the standard because there was no evidence of
large scale instability at the time the citation was issued or when its expert
viewed the area.  There is no dispute that the mine had just experienced a
large ground failure.  The mine had failed to detect or control that failure, took
no subsequent steps to prevent a similar failure in the future, and the
witnesses for the Secretary offered credible testimony that the conditions were
right for another failure.

While the mine, in its brief,
argues in passing that it employed berms at the base of the highwall along the
road and in the pit as an alternative means of control, the evidence is not
persuasive.  No one from the mine testified to the existence of these berms
prior to the ground failure, or in the time between when the failure occurred
and when the citation was issued.  Moreover, even if the court were to accept
the mine’s argument that a berm was in place, it clearly would not have
controlled the March 16th ground failure, which resulted in material
12 feet deep covering the entire width of the access road, or any subsequent
similar failure.       

I find that a reasonably prudent
person, familiar with the mining industry, would know that this highwall presented
a clear hazard, that it should have been scaled or otherwise cleaned up, and
that benches above the working area, or some alternative method of control,
were necessary to control falls and protect the miners below.  Accordingly, I
find that a violation of the cited standard occurred as alleged.

S&S and Gravity

A “significant and substantial”
violation is described in section 104(d)(1) of the Mine Act as a violation “of
such nature as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard.” 30 U.S.C. §
814(d)(l).  A violation is properly designated significant and substantial “if
based upon the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature.”  Cement Division, National
Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

In Mathies Coal Co., 6
FMSHRC 1, 3-4 (Jan. 1984), the Commission explained its interpretation of the
term “significant and substantial” to be:

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

The difficulty with finding a
violation S&S normally comes with the third element of the Mathies formula,
in which the Secretary must establish that there is a reasonable likelihood
that the hazard will result in an injury.  The Commission has explained that
the third element of the formula “requires that the Secretary establish a
reasonable likelihood that the hazard contributed to will result in an event in
which there is an injury.”  U.S. Steel Mining Co., Inc., 6 FMSHRC 1834,
1836 (Aug. 1984).  The Commission discussed the third element of the Mathies
test in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257
(Oct. 2010) (affirming an S&S violation for using an inaccurate mine map). 
The Commission clarified that the “Secretary need not prove a reasonable
likelihood that the violation itself will cause injury” but that the hazard
created would cause an injury.  Id. at 1280-81.  The Commission
reaffirmed its position in Cumberland River Coal, 33 FMSHRC 2357, 2365
(Oct. 2011).

In Connolly-Pacific Co.,
33 FMSHRC 2270 (Sept. 2011) (ALJ), this court affirmed a S&S designation of
a violation of section 56.3130 where loose and cracked rocks were observed on a
near vertical highwall above miners working on foot and in equipment on the pit
floor.  The court found that, because it was impossible to predict when
material would fall, it was “at least reasonably likely” that, assuming
continued mining operations, material would fall and strike a miner or
equipment operator, and that even small pieces of rock could be dangerous if
they fell from great height.

In this case the Secretary has
demonstrated that the violation was S&S.  First, there was a failure of the
wall that resulted in a mass of material sliding off the wall, covering the
bench and then covering the haul road below.  Slick and Durig agreed that the
conditions were right for another failure of the wall.  In addition, Inspector
Slick explained that, had any miner been in the area when the fall occurred, he
would have been buried by debris or had no way out of the pit.  The mine does
not dispute Slick’s description of the fall and the hazard it created.  The
mine was fortunate that no one was driving a truck or loader on the pit road on
the day of the slide.  Slick and Durig agreed that the slide was large enough
to engulf equipment or push it up against the opposite wall.  In addition,
there was enough material to completely block the only way out of the pit and
it took the mine four days to clean up just that area of the pit in order to reestablish
the road and any route into the pit area.  Durig testified that the
photographs, Sec’y Ex. 4 pp. 4 and 5, clearly show how large the slide was and
that the bench was full of material.  Looking at the current active road into
the pit and the scope of the slide into that area, Durig expected that a front
end loader, a haul truck, or other piece of equipment, would have been engulfed
or pushed against the opposite wall by the slide.  The slide would have trapped
others, as there was no other way out of the pit.

I have found that there is a
violation of the mandatory standard, and that the violation of not maintaining
the highwall did, and would in the future, result in a fall or slide of
material.  The fall or slide of material is a serious hazard which will lead to
the covering up of equipment and the miners operating the equipment, or, in the
very least, push the heavy equipment with the operator into the opposite side
of the pit wall.  When the drivers of the equipment are covered up or engulfed
by soil, trees and other sliding material, it will result in a serious injury
or death.  Hence, I find the violation to be S&S.

Unwarrantable Failure and Negligence

Inspector Slick testified that
he believed the violation to be the result of high negligence and an
unwarrantable failure for a number of reasons, including the fact that the mine
was aware of the condition of the highwall, both before and, more importantly,
after the slide, yet failed to take any remedial measures.  The mine had done
nothing to prevent this slide or any subsequent slide even though the condition
of the highwall was obvious.  The mine took no steps after the slide to clear
the catch bench or scale the loose material.  All management members were aware
of the slide but, instead of focusing on preventing another similar slide, they
cleared the pit road and continued working under a bench that was now filled
with debris.  I find that the violation was a result of the mine’s high
negligence and the unwarrantable failure to comply with the mandatory standard.

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

Length of time that the
violation has existed.  In IO Coal Co., 31 FMSHRC 1346
(Dec. 2009) the Commission emphasized that the duration of time that the
violative condition exists is a “necessary element” of the unwarrantable
failure analysis.  The Commission, in remanding the case, instructed the judge
to address the duration of the violative roof condition, which was found to
have existed for multiple shifts and days, and determine if that duration
qualified as an aggravating factor.  In Coal River Mining, LLC, 32
FMSHRC 82 (Feb. 2010), the Commission explained that, even where the record of
a case does not allow a judge to make a determinative finding with regard to
how long a violative condition existed, the judge must analyze the element and
“[e]ven imperfect evidence of duration in the record should be taken into account[.]” 
While the Commission has found that a duration of a “matter of seconds” may
weigh against an unwarrantable failure finding, it has also held that a
duration of a few minutes may support an unwarrantable failure finding.   Midwest
Material Co., 19 FMSHRC 30 (Jan. 1997) (Finding that a judge erred in
relying upon the brief duration of the violation when vacating the
unwarrantable failure designation.  Noting that the only reason the duration of
the violation ended was because a crane boom crushed and killed a miner who
should not have been working under the boom).

Durig testified that he viewed
aerial and satellite images of the mine dating back to approximately 2000 and,
in those images, he saw vegetation and soil deposits similar to what could still
be seen in other areas of the mine that had not yet failed, and what would have
been seen in the area of the slide prior to the failure.  The dangerous
condition of the highwall at the time of the failure certainly didn’t develop
instantaneously.  Rather, the condition developed over an extended period of
time, during which the mine took no steps to maintain the stability of the
highwall or slope.  I find that this factor weighs heavily in favor of an
unwarrantable failure finding. 

Extent of the violative
condition.  In IO Coal Co., 31 FMSHRC 1346 (Dec. 2009),
the Commission explained that the “extent of the violative condition is an
important element in the unwarrantable failure analysis.”  The Commission has
explained that the purpose of this element is to “account for the magnitude or
scope of the violation[,]” and the judge may analyze it by looking at, among
other things, the “extent of the affected area as it existed at the time the
citation was issued[,]” the number of persons affected, and the time and
resources required to correct the condition.  Dawes Rigging & Crane
Rental, 36 FMSHRC 3075 (Dec. 10, 2014) (citing E. Associated Coal Corp.,
32 FMSHRC 1189, 1195 (Oct. 2010) and Watkins Eng'rs & Constructors,
24 FMSHRC 669, 681 (July 2002)); Consolidation Coal Co., 35 FMSHRC 2326,
2331 (Aug. 2013).   In Dawes the Commission found that, because only one
miner endangered himself by walking under the suspended boom, the violation was
not extensive.  Id. 

The top of the wall in this pit
was over 300 feet high, with approximately 200 feet above the old haul road,
which was functioning as a bench, and approximately 150 feet below the old haul
road down to the access road.  Further, the wall was between 1600 to 1800 feet
wide.  The entire wall was left unmaintained.  The Secretary’s witnesses and
the mine’s expert witness testified that there were areas at the brow that
needed to be addressed, as well as loose material all over the highwall.  While
it may have only taken the mine a few days to clear the material from the
access road following the failure, it took months to formulate a plan to
terminate the citation, and required approximately a month for contractors to
complete their work to bring the mine into compliance before the citation was
terminated.  I find that the violative condition was very extensive.

Whether the operator has
been placed on notice that greater efforts were necessary for compliance.
 The Commission has explained that repeated, similar violations, and past
discussions with MSHA about a problem at the mine may serve to put an operator
on notice that increased efforts to comply are necessary.  IO Coal Co.,
31 FMSHRC 1346, 1353-1354 (Dec. 2009).  The prior violations relied upon to
establish notice need not have been a result of an unwarrantable failure, nor
do those violations need to have involved precisely the same activity, cited
standard, or area of the mine.  Id.; Black Beauty Coal Co. v. FMSHRC,
703 F.3d 553, 561 (D.C. Cir. 2012); Consolidation Coal Co., 35 FMSHRC
2326, 2344 (Aug. 2013). 

The testimony elicited at
hearing did not address whether MSHA had ever placed this operator on notice
that greater compliance efforts were necessary.  It is not clear whether other
inspectors had viewed the highwall, or even mentioned it, prior to the Slick’s
inspection on April 2, 2014.  As a result, this factor was not relied upon in
reaching my unwarrantable failure finding.

Operator’s efforts in
abating the violative condition.  In evaluating the operator’s efforts
in abating the violative condition the judge should examine those abatement
efforts made prior to the issuance of the citation or order.  Consolidation
Coal Co., 35 FMSHRC 2326, 2342 (Aug. 2013) (citing IO Coal Co., 31
FMSHRC 1346, 1356 (Dec. 2009) and Warwick Mining Co. 18 FMSHRC 1568,
1574 (Sept. 1996)).  In Consolidation the Commission, in affirming the
unwarrantable failure designation, noted the judge’s finding that management
did not take steps to remedy the type of condition cited despite being aware of
a similar condition having been previously brought to their attention through
the issuance of a citation.

I find that the mine made no
efforts to abate the violative condition prior to the issuance of the
citation.  There is no evidence that the mine took steps to abate the violative
condition prior to or after the slide.  Even after the slide when it was clear
that the bench was full in areas, the mine took no steps to clean it, nor did
it attempt to scale the highwall or even consult with someone who could provide
advice on how to remove the hazards.  The only action taken by the mine in
response to the failure was to clear the access road to the pit, and provide
spotters, neither of which abated the violative condition.  I find that this
factor weighs heavily in favor of a finding that the violation was result of
the mine’s unwarrantable failure to comply with the mandatory standard. 

Whether the violation
posed a high degree of danger.  The Commission has found the
high degree of danger posed by a violation to be an aggravating factor in
support of an unwarrantable failure finding.  IO Coal Co., 31 FMSHRC
1346, 1355-1356 (Dec. 2009).  The Commission has acknowledged that,
conceivably, the degree of danger could be “so severe that, by itself, it
warrants a finding of unwarrantable failure.”  Manalapan Mining Co., 35
FMSHRC 289, 294 (Feb. 2013).  Moreover, it has noted that a violation may be
aggravated and unwarrantable where the hazardous nature of a violative
condition is common knowledge.  IO Coal Co., 31 FMSHRC 1346, 1355-1356
(Dec. 2009) (citing Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129
(July 1992) (finding a violation to be an unwarrantable failure based on
“common knowledge” that power lines are hazardous and precautions must be taken
around them)).  Further, when a mine operator ignores a chronic problem, the degree
of danger and likelihood of something going wrong increases.  Consolidation
Coal Co., 35 FMSHRC 2326, 2343 (Aug. 2013).  Furthermore, a high degree of
danger may be evidenced where a fatal accident occurred as a result of the
cited condition or practice.  Midwest Material Co., 19 FMSHRC 30, 34
(Jan. 1997).

The violation posed a high
degree of danger.  Loose material was observed in multiple places on the
highwall and the brow, or slope, of the wall, which consisted of soil and
vegetation, had not been addressed by the mining methods of this operator. 
Just as the Commission in Cyprus Tonopah found that a mine’s failure to
maintain benches was probative of the stability of the walls, banks, and
slopes, here, the mine’s failure to employ any mining method to address
the hazardous conditions on this highwall and slope is probative of the
stability.  15 FMSHRC at 374.  Further, the undisputed fact that a major
failure of the wall occurred, combined with the obvious conclusion that the
failure, or any similar failure, would almost certainly kill anyone in the path
of the slide, makes it clear that the violation posed a very high degree of
danger. 

Whether the violation was
obvious.  The obviousness of the violative condition is an
important factor in the unwarrantable failure analysis.  IO Coal Co., 31
FMSHRC 1346, 1356 (Dec. 2009).  Moreover, where an operator’s conduct causes a
violative condition to not be obvious, the operator cannot assert that the lack
of obviousness is a mitigating factor in the unwarrantable failure analysis.  Consolidation
Coal Co., 35 FMSHRC 2326, 2343 (Aug. 2013) (citing Eastern Assoc. Coal
Corp., 32 FMSHRC 1189, 1200-01 (Oct. 2010)) (upholding judge’s
unwarrantable failure finding where the operator deliberately ignored air
velocity requirements in the mine’s ventilation plan).

Both Durig and Slick testified
that the violation was obvious and I agree.  The pictures entered into evidence
show loose soil and other material, including rocks and dead vegetation, spread
across the highwall.  Sec’y Ex. 4 pp. 1, 2, 4, 5, 6.  The mine had taken no
steps to maintain the wall and slope by removing or protecting against the
loose material.  The bench, which the mine admittedly was not maintaining, was
clearly full in areas and could not protect against the future fall of material
in those areas. 

Operator’s knowledge of
the existence of the violation.   In IO Coal the
Commission reiterated the well settled law that, in addition to actual
knowledge, an operator’s knowledge of the existence of a violation may be
established where the operator “reasonably should have known of the violative
condition.”  31 FMSHRC 1346, 1356-1357 (Dec. 2009).  The Secretary may
establish that an operator “reasonably should have known of the violative
condition” by showing that the “operator’s knowledge of the specifics of its
operations should have led it to conclude that violation charged would
eventually occur[.]”  Eastern Assoc. Coal Corp., 32 FMSHRC 1189,
1199-1200 (Oct. 2010) (citing Emery Mining Corp., 9 FMSHRC 1997, 2002-04
(Dec. 1987) and Coal River Mining, LLC, 32 FMSHRC 82, 92 (Feb. 2010)).

I find that, even if the
operator did not have actual knowledge of the existence of this violation, it
certainly should have known of the violative condition.  In spite of the fact
that the mine was not cited for the highwall conditions prior to the slide, the
condition was extremely obvious and, as discussed above, a reasonably prudent
person should have known that the highwall needed constant attention in order for
the mine to maintain it in a safe condition.   Even if the failing condition of
the highwall was not obvious before the March 16th failure, it
certainly was so after the failure.  Nevertheless, the mine allowed the
condition to persist until the inspector issued the citation.  The mine’s
witnesses testified that, following the failure, the managers met to discuss
how to deal with the situation.  The managers knowingly chose to take no steps
to abate the obvious, hazardous condition.  I find that they were on notice of
the existence of the condition and the potential for a similar future failure
given that they took no steps to prevent one from occurring.

The mine argues that the steps it took after
the March 16th failure to insure that the highwall was stable were
taken in a reasonable good faith belief as to what was required to achieve
compliance.  However,  the mine did not employ any mining method to maintain
the stability of the wall and slope prior to or after the failure, I find that
this argument is without merit.  The steps taken by the mine between the times
when the fall occurred and when the citation was issued did not address the
stability of the wall.  Rather, they addressed the need to resume operations
and, at the very most, an attempt to avoid, not address, the hazard. 

While the operator argues that
the presence of spotters mitigates against the high negligence and
unwarrantable failure findings, I disagree.  In Connolly-Pacific Co., 33
FMSHRC 2270 (Sept. 2011) (ALJ), this court affirmed the Secretary’s designation
of moderate negligence where the mine had established protective berms in at
least some portions of a quarry, had conducted routine inspections of the
highwall, and had employed spotters when material was removed from the base of
the wall.  Here, I find that the mine did far less.  The mine did not offer credible
evidence of someone being aware of the changing conditions of the wall or
monitoring its movements.  Further, there were no examinations or remediation even
after the serious fall of ground.  In Connolly-Pacific Co., 36 FMSHRC
1549, 1553 (June 2014), the Commission found that the use of spotters did
nothing to maintain a highwall’s stability, nor did it constitute a correction
of fall-of-materials hazards.  Moreover, in finding that substantial evidence
supported the judge’s finding that an inspector did not abuse his discretion
when issuing a 107(a) imminent danger order, the Commission cited the
inspector’s testimony that the use of spotters “‘does not stop or mitigate the
likelihood of material coming off the wall.  It just lets the guy watch it
happen.’”  Id. at 1555.  In other words, spotters are just witnesses to
falls of material, and the use of them should not be considered a mitigating
factor.  Here, it is undisputed that spotters were only used during the cleanup
of the access road, and were not present prior to the failure, or after the
cleanup was complete.  Accordingly, I find that the violation was a result of the
mine’s high negligence and unwarrantable failure to comply with the mandatory
standard.

Citation No. 8715732

On April 8, 2014 Inspector
Michael Smith traveled to U.S. Silica’s Berkeley Plant to conduct an
inspection.  Smith observed fresh tire tracks at the toe of a 175 foot
perimeter highwall in the southwest corner of the Berkeley mine.  He explained
that no safety bench was present in the area and loose material extended all
the way to the brow of the wall.  In addition, he observed two foot diameter
rocks approximately 75 feet above the work area.  The brow of the highwall had
not been stripped back and it appeared that trees were at the edge.  Further,
he observed loose material at the toe, which appeared to have been moved by a
front end loader.  Smith opined that a fall of material would cause crushing
injuries to a miner working below.  Based on his observations, Smith issued
Citation No. 8715732 for a violation of section 56.3131 of the Secretary’s
regulations.  Smith determined that the condition was highly likely to result
in a fatal injury, was S&S, affected one person, and was a result of the
operator’s high negligence.  The Secretary has proposed a civil penalty in the
amount of $12,248.00 for this alleged violation.

The Violation

Inspector Smith, has been with
MSHA since 2008 and received the regular MSHA training as well as accident
investigation training.  He has an extensive background in highwalls dating
back to 1972 when he started operating heavy equipment in pits similar to the
one here.  and he is aware of the importance of maintaining highwalls in safe
condition. 

Inspector Smith traveled to the
Berkeley pit on April 8, 2015, about a week after Slick issued the citation
associated with the fall of ground.  Smith reviewed the mine file and met the
engineers from MSHA’s Technical Support Division at the mine to review the highwall
and the fall area.  While walking to the area of the slide, Smith observed a
separate area, shown in two photographs, Sec’y Ex. 4 pp. 8, 9, where tire
tracks were under a 175 foot highwall.  As a result he issued a citation
because the area where persons worked or traveled had loose unconsolidated material 
created a fall of material hazard.   

Smith explained that Sec’y Ex. 4
p. 9 is a photograph of the area he cited and shows the material at the bottom of
the wall that had fallen from above to the pit below.  The photo shows material
higher up the wall that appears ready to fall into the pit area. Smith
testified that the rock and material he observed would roll or fall from the
wall and hit a haul truck, loader or other equipment, as well as any miner on
foot.  It has been his experience that, when heavy equipment is being operated
under and around highwalls, drivers frequently step out of  the equipment and
are on foot in the areas.  It appeared that the mine had been removing rock at
the bottom of the wall, causing the area above to shift or move.  Smith said
that the operator of a front end loader would only have been able to see
directly in front of, and a little bit above, the equipment, and would not be
able to see rock or material falling from higher up.        Smith observed
fresh tracks up to the area where material was being removed at the base of the
highwall but he did not want to travel any closer to view the tracks as he
believed the area was dangerous.  He is positive that, given the conditions he
observed, the rocks would come down from the highwall and hit those working
below.

Smith noted that there is no way
to predict exactly when a fall of rock or material will happen, but, generally,
it happens fast and occurs before anyone below the wall can see it and get out
of the way.  It is his belief that the mine had been digging in the area,
loading material and hauling it away.   According to Smith, the weight of a 2
foot diameter rock coming off the highwall during this process, would hit the
glass in the front of the cab and go through the windshield injuring the
driver.  Smith envisioned rocks falling or rolling onto the loaded bucket of
the loader, traveling down the boom and into the cab, injuring, if not killing
the driver.  There were no safety benches in place, or any other measures to
control the highwall.

While the mine asserts that
Slick had observed this area six days earlier without an issue,  Smith
explained that highwall conditions change on a daily basis and he saw it as a clear
danger on the day he was at the mine.  This portion of the highwall was not
affected by the barricade put in place after Slick’s citation, and mining was
ongoing at the quarry.  Miners were traveling in the area and, while Smith did
not see the loader when he passed by, he did see raveling of rock and the fresh
tire tracks near the fallen rock, which indicated that work had recently been
done under the highwall.  Further, he observed a truck a couple hundred feet up
the haul road, but when he attempted to question the driver, the driver refusal
to answer.  According to Smith, he could tell the work in the area was new from
the conditions he observed.

Doug Andrews, an hourly employee
at the Berkley pit, testified on behalf of the mine operator.  According to
Andrews, he was aware of the slide of material in March.  Andrews testified
that, at the time of Slick’s inspection on April 2nd, he was
spotting for the area identified in Smith’s citation and shown in Sec’y Ex. 4
p. 9.  There were two trucks and a loader operating in the area, and  Andrews’
believes that, Slick observed them working in the area,  and saw no problem
with the highwall.   According to Andrews, they continued to mine in the area
the remainder of the day and the following day.  Then, as they always do when
leaving an area, they bermed it off, and it remained bermed off until Smith
arrived a few days later and cited the mine for working under the highwall.

The Secretary argues that this
is an area where persons work and travel and that there was a fall of material hazard,
thereby demonstrating a violation.

U.S. Silica argues that the
Secretary cannot meet his burden of showing that there was a fall of material
hazard when miners were working in the area, and that the area in question was
not being mined or traveled and had been bermed to prevent unauthorized travel
in the area.  The operator further argues that Inspector Slick had observed
mining in the area just a few days prior to this citation and did not see a
hazard.

Section 56.3131 requires that
“[i]n places where persons work or travel in performing their assigned tasks,
loose or unconsolidated material shall be sloped to the angle of repose or
stripped back for at least 10 feet from the top of the pit or quarry wall.
Other conditions at or near the perimeter of the pit or quarry wall which
create a fall-of-material hazard to persons shall be corrected.”  30 C.F.R. §
56.3131.

The Commission has explained
that the language of section 56.3131 is “clear.” Connolly-Pacific Co.,
36 FMSHRC 1549, 1553 (June 2014).  The plain language of the standard, when
read in conjunction with sections 56.3130 and 56.3200, requires operators to
“maintain highwall stability and correct hazardous conditions before work or
travel takes place.”  Connolly-Pacific Co., 36 FMSHRC 1549, 1553 (June
2014).  The evaluation of whether a violation occurred is measured against the
standard of whether a reasonably prudent person familiar with the factual
circumstances would recognize that a hazard, as contemplated by the standard,
existed.  Id.  (citing Alabama By-Products Corp., 4 FMSHRC 2128,
2129 (Dec. 1982)).

In Connolly-Pacific Co.,
33 FMSHRC 2270 (Sept. 2011) (ALJ), this court affirmed a violation of section
56.3131where large overhanging rock formations, and loose cracked material,
were present on the perimeter of a quarry wall.  There, the material had not
been sloped or stripped back to the angle of repose.  The court cited the
Secretary’s evidence that a loader operator had worked and traveled under the
highwall.  Moreover, tire tracks at the base of the highwall, as well as the
lack of protective catch benches, warning signs, or berms in the area, evidenced
that this was an active area of the quarry. 

In Duke’s Sand & Gravel,
37 FMSHRC 63 (Jan. 2015) (ALJ), Judge Moran upheld a violation of section 56.3131
where loader tracks and bucket dig marks could be seen beneath a protruding
overhang in a pit.  Similarly in Allied Stone, LLC, 35 FMSHRC 31 (Jan.
2013) (ALJ), Judge Zielinski upheld a violation of section 56.3131 where loose,
unconsolidated material on a 30 foot highwall, as well as an overhanging rock
protrusion, were observed above an area where miners worked.  There, the court,
in finding a violation, cited evidence that tire tracks could be seen within
two feet of the base of the highwall, the lack of an angle of repose, and no
barrier to keep miners away from the base of the wall. 

I find that the Secretary has
shown a violation and, in doing so, I credit Inspector Smith’s testimony. 
While Smith did not see a truck or loader actively engaged in work under the
highwall as he passed by on April 8th, it was clear to him that work had
recently been done in the area. He observed loose material both on the
highwall, and on the ground.  Tire tracks could be seen close to the highwall,
which indicated to him that the mine had very recently loaded material in the
area.  The loader operator and truck driver would not speak with the inspector,
but Andrews indicated that they were working in the area just days before the
citation was issued.  There was nothing to indicate that the mine would not return
to remove material from this part of the pit, and it was accessible to miners
working.  While it is not entirely clear whether a berm existed at the time of
the Smith’s inspection, Andrew’s testimony that the mine routinely bermed work
areas at the end of each day lends itself to a finding that the mine would, and
in this case did, continue to mine the area below the loose material in the
time leading up to Smith’s issuance of the citation.  Accordingly, I find that
the Secretary has established a violation. 

S&S and Gravity

Inspector Smith indicated that,
given the condition he observed, the material on the wall would have fallen, or
rolled and, when it did, it would hit the loader, go through the windshield and
seriously injure the driver.  Therefore, he designated the violation as
S&S.

In Connolly-Pacific Co.,
33 FMSHRC 2270 (Sept. 2011) (ALJ), this court affirmed an S&S designation
of a violation of section 56.3131 where loose, overhanging material was
observed on a highwall above where miners worked.  The court found that the
mine’s failure to strip back, slope, or perform controlled blasting to remove
the loose material significantly increased the likelihood of rock falling and
injuring a miner.  In Three Way Portable Crushing, Inc., 32 FMSHRC 1486
(Oct. 2010) (ALJ) Judge Barbour upheld the S&S designation of a violation
of section 56.3131 where he found that material falling from a highwall could
hit bench-like protrusions and get projected away from the wall at speeds which
could cause a fatality.  The presence of an inadequate berm at the base of the
highwall contributed to the hazard.

I have found a violation of the
mandatory standard and that the violation created a hazard in the form of a
fall of material from either directly above a loader or truck, or from far
above near the brow.  Sec’y Ex 4 p. 9 shows loose material in the area that
would have been immediately above equipment working in the area.  Additional
loose material can be seen higher up on the wall.  In both areas material was
poised to either fall or roll down into the bottom of the pit were miners had
very recently been working and, given my above findings, would continue to work. 
As Smith explained, even a 2 foot rock rolling off the wall would go right
through the windshield of the loader and lead to a serious injury or a fatality. 
I find the violation to be S&S.

Negligence

Smith determined that the
violation was a result of high negligence given that, just a few days prior,
Slick had issued the citation discussed above, which also involved a failure to
maintain the highwall in the pit.  In Martin Marietta Aggregates, 26
FMSHRC 847 (Nov. 2004), Judge Melick upheld the high negligence designation for
a violation of section 56.3131 where a pit foreman was aware of fissures and
cracks in a highwall prior to a wall failure, but did not take steps to protect
miners working in the area below the highwall. 

I find that the mine exhibited
high negligence.  The mine was clearly aware of issues with the stability of
highwall and the presence of loose material above where miners were working. 
Nevertheless, the mine continued to work beneath those conditions.  While the
mine argues that mitigating circumstances exist because Slick did not find a
hazard in the area during his earlier inspection and the mine had not worked in
the area for several days, I credit Inspector Smith’s testimony and find that a
hazard did exist when he observed the area on April 8th and that
miners had very recently been in the area.[1] 
Moreover,  even if minimal mitigating circumstances did exist, the court is not
bound by the Secretary’s regulatory definition of high negligence, Hidden
Splendor Resources, 36 FMSHRC 3099 (Dec. 2014), and the evidence in this
case clearly demonstrates that the mine was highly negligent in allowing its
miners to work beneath a highwall which not only had loose material all over
it, but had very recently experienced a substantial failure and the mine had
taken no steps to prevent a reoccurrence.

II.   PENALTY

The principles governing the
authority of Commission administrative law judges to assess civil penalties de
novo for violations of the Mine Act are well established.  Section 110(i) of
the Mine act delegates to the Commission and its judges “authority to assess
all civil penalties provided in [the] Act.”  30 U.S.C. § 820(i).  The Act
delegates the duty of proposing penalties to the Secretary.  30 U.S.C. §§
815(a), 820(a).  Thus when an operator notifies the Secretary that it intends
to challenge a penalty, the Secretary petitions the Commission to assess the
penalty.  29 C.F.R. § 2700.28.  The Act requires, that “in assessing civil
monetary penalties, the Commission [ALJ] shall consider “six statutory penalty
criteria which include the history of violations, the size of the operator, the
negligence, gravity, the ability to continue in business and good faith abatement.
 30 U.S.C. § 820(i).  In keeping with this statutory requirement, the
Commission has held that “findings of fact on the statutory penalty criteria
must be made” by its judges. Sellersburg Stone Co., 5 FMSHRC 287, 292
(Mar. 1983), aff'd, 736 F.2d 114 7 (7th Cir. 1984). Once findings on the
statutory criteria have been made, a judge’s penalty assessment for a particular
violation is an exercise of discretion, which is “bounded by proper
consideration of the statutory criteria and the deterrent purpose[ s] . . . [of]
the Act.  Id. at 294;  Cantera Green, 22 FMSHRC 616, 620 (May
2000).

The history of assessed
violations was admitted into evidence and shows a reasonable history for this
mine.  The mine is a medium-sized operator.  The parties have stipulated that
the penalties as proposed will not affect its ability to continue in business,
and that Respondent demonstrated good faith in abating the citation.  The
gravity and negligence are discussed above.  Given the total lack of any mining
method employed by this operator to maintain the highwall both before and after
the March 16th wall failure at this facility, I find that an
increased penalty of $10,000.00 is appropriate for Citation No. 8716877.  I
assess the originally proposed penalty of $12,248.00 for Citation No. 8715732.

III.   ORDER

Based on the criteria in section
110(i) of the Mine Act, 30 U.S.C.§ 820(i), I assess a total penalty of $10,000.00
for Citation No. 8716877 and a penalty of $12,248.00 for Citation No. 8715732. 
Accordingly, U.S. Silica Company is ORDERED to pay the Secretary of
Labor a total penalty of $22,248.00 within 30 days of the date of this
decision.

/s/
Margaret A. Miller

Margaret
A. Miller

Administrative
Law Judge

Distribution:

Daniel McIntyre, U.S. Department of Labor, Office of the
Solicitor, 1244 Speer Blvd., Suite 216, Denver, CO 80204

Justin Winter, Law Office of Adele Abrams, P.C., 4740
Corridor Place, Suite D, Beltsville, MD 20705

[1] U.S. Silica, by way of an attachment to its brief,
attempted to introduce Inspector Slick’s field notes into the record.  The
field notes were referenced at hearing, but were never formally introduced into
evidence.  The record was closed at the end of the hearing.  As a result, the
court has not considered the field notes in reaching its conclusions in this
matter and strikes them from the record.