RBS, Inc. v. Secretary of Labor and Secretary of Labor v. RBS, Inc.

Plain-English summary

RBS runs the Greystone Quarry, a small limestone operation near Lewisburg, West Virginia. A fill-in MSHA inspector spent two days there in February 2014 and wrote seven citations and orders, originally proposing $24,886 in penalties. The judge worked through the five that went to hearing. Two parking-brake citations and a missed pre-operation exam citation were upheld as violations, but the judge deleted the significant and substantial designations on all three, finding an injury unlikely: the pickup's brake held whenever the truck was parked downhill into a berm as company policy required, and the defective loader had been tagged out with a mechanic already on the way. He cut the negligence on the pickup citation from high to moderate, holding that one earlier violation on the same truck does not by itself show an aggravated lack of care. Two citations aimed at a 50-foot muck pile, one for untrimmed faces and one for unsupported ground conditions, were vacated because the Secretary did not prove them. A sixth citation settled for $100. Total penalty, $1,227.

Decision snapshot

• Cited standard(s): 30 C.F.R. § 56.14101(a)(2), 30 C.F.R. § 56.14100(a), 30 C.F.R. § 56.9314, 30 C.F.R. § 56.3200
• Outcome: Citation Nos. 8718118 and 8718119 vacated; Citation Nos. 8718116, 8718120, and 8718121 modified to delete the S&S designations and reduce likelihood to unlikely, with negligence lowered on 8718116 and raised on 8718121; $1,227 total penalty due in 30 days
• Key point: Safety practices that actually work, here parking downhill into a berm and tagging equipment out of service, can defeat the S&S designation even where the underlying violation stands.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9950 / FAX: 202-434-9949

RBS,
INC.,

Contestant,

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

RBS,
INC. ,

Respondent

CONTEST
PROCEEDINGS

Docket
No. WEVA 2014-0691-RM

Citation
No. 8718116; 02/25/2014

Docket
No. WEVA 2014-0693-RM

Citation
No. 8718118; 02/25/2014

Docket
No. WEVA 2014-0694-RM

Citation
No. 8718119; 02/25/2014

Mine:
Greystone Quarry and Plant

Mine
ID: 46-00018

CIVIL
PENALTY PROCEEDING

Docket
No. WEVA 2014-0817

A.C.
No. 46-00018-346526

Mine:
Greystone Quarry and Plant

AMENDED
DECISION AND ORDER

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

Nicholas
W. Scala, Esq., Conn Maciel Carey PLLC, Washington, D.C. for Respondent.[1]

Before:                                    Judge
L. Zane Gill

This proceeding, under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994), involves six
section 104(a) citations, 30 U.S.C. § 814(a), issued by
the Department of Labor's Mine Safety and Health Administration (“MSHA”) to
RBS, Inc., at its Greystone Quarry and Plant. RBS was assessed a total penalty
of $24,886.00 for the six violations. The Secretary and the Respondent settled
one citation prior to trial: No. 8718115. The parties presented testimony
regarding the remaining five citations in South Charleston, West Virginia.

Greystone Quarry is a small limestone quarry near Lewisburg,
West Virginia, with a pit area and crushing and screening plants. (Tr. 193:23 –
194:24; 275:2-3) The pit contains a large natural formation of “Greenbrier
Limestone,” approximately 800 feet deep in some locations. (Tr. 275: 3-6) In
the pit area, the operator strips a thin layer of overburden, consisting
principally of mud and shale, off of the limestone and then drills and shoots
the limestone with explosives leaving behind a “muck pile,” also called “shot
rock,” on the face of the highwall where the material was found. (Tr. 275:7-11)
The operator then uses a haul truck to transport the muck pile from the
highwall to the crushing plant where it is crushed and classified into numerous
different products. (Tr. 275:22 – 276:2)

Inspector Brett Chiccarello was on site for two days in
February, 2014, to perform a regular inspection. (Tr. 10:6-8; 118:9-11) Chiccarello had
been an inspector for four and a half years and had conducted roughly 250
inspections. (Tr. 27:24-28:11) However, this was his first time at this
particular mine, as he was filling in for another inspector from his district
field office. (Tr. 10:15 - 11:1; 118:14-16) Chiccarello did not believe that
his lack of familiarity with the mine would pose any problem, since he normally
inspected other limestone mines as a part of his job. (Tr. 31:4-14) He also had
prior experience as a superintendent at a surface coal mine, which Chiccarello
testified had similar equipment and highwalls as the Greystone Quarry. (Tr. 28:12

• 29:15; 31:14-17)

Chiccarello
issued seven citations and orders during his inspection, four of which he
initially designated as unwarrantable failures to correct a health or safety
hazard and the result of reckless disregard. (Tr. 118:17 - 119:2) After meeting
with his supervisor, Chiccarello vacated one of those four citations entirely and
deleted the unwarrantable failure designations for the three remaining 104(d)
orders. (Tr. 119:6-21) The level of negligence on those three citations and
orders was also reduced from “reckless disregard” to “high.” (Tr. 119:12-15).

In summary, and for the following reasons, I
conclude that:

•        
For Citation No. 8718116, RBS violated Section 56.14101(a)(2),
injury was unlikely, the injury could reasonably be expected to be a fatality,
the violation was not significant and substantial, one person was affected, and
there was low negligence. I assess a penalty of $460.00 for the violation.

•        
For Citation Nos. 8718118 and 8718119, the Secretary failed to prove
a violation of Section 56.9314 and Section 56.320.

•        
For Citation No. 8718120, RBS violated Section 56.14101(a)(2),
injury was unlikely, the injury could reasonably be expected to be fatal, the
violation was not significant and substantial, one person was affected, and
there was low negligence. I assess a penalty of $207.00 for the violation.

•        
For Citation No. 8718121, RBS violated Section 56.14100(a), injury
was unlikely, the injury could reasonably be expected to be fatal, the
violation was not significant and substantial, one person was affected, and
there was moderate negligence. I assess a penalty of $460.00 for the violation.

Stipulations

The following stipulations were submitted in a joint prehearing
report:

1.      RBS
was at all times relevant to these proceedings engaged in mining activities at
the Greystone Quarry and Plant in or near Maxwelton, West Virginia.

2.      RBS’s
mining operations affect interstate commerce.

3.      RBS
is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et. seq. (the “Mine Act”).

4.      RBS
is an “operator” as that word is defined in §3(d) of the Mine Act, 30 U.S.C.
§803(d), at the Greystone Quarry and Plant (Federal Mine I.D. No. 46-00018)
where the contested citations in these proceedings were issued.

5.      The
Administrative Law Judge has jurisdiction over these proceedings pursuant to
§105 of the Act.

6.      MSHA
Inspector Brett Chiccarello was acting as a duly authorized representative of
the United States Secretary of Labor, assigned to MSHA, and was acting in his
official capacity when conducting the inspection and issuing the citations from
docket at issue in these proceedings.

7.      The
citations at issue in these proceedings were properly served upon RBS as
required by the Act, and were properly contested by RBS.

8.      The
citations at issue in these proceedings may be admitted into evidence by
stipulation for the purpose of establishing their issuance. The truthfulness or
relevancy of any statements asserted therein is not stipulated to by the
parties.

9.      RBS
demonstrated good faith in abating the violations.

10.  Without
RBS admitting the propriety or reasonableness of the penalties proposed herein,
the penalties proposed by the Secretary in this case will not affect the
ability of RBS, Inc., to continue in business.

Jt. Pre-Hearing Report at 2.

Basic Legal Principles

Significant and Substantial

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

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

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

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

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

Negligence

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

recognized that “[e]ach mandatory standard … carries with it an
accompanying duty of care to avoid violations of the standard, and an
operator's failure to meet the appropriate duty can lead to a finding of
negligence if a violation of the standard occurs.” A.H. Smith Stone Co.,
5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met its duty of
care, we consider what actions would have been taken under the same
circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation. See
generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984).

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

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

Although the Secretary's part 100 regulations are not binding on
the Commission, the Secretary's definitions of negligence in those provisions
are illustrative. According to the Secretary, negligence is “conduct, either by
commission or omission, which falls below a standard of care established under the
Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d). “A mine operator is required
[…] to take steps necessary to correct or prevent hazardous conditions or
practices.” Id. “Reckless negligence is present when “[t]he operator
displayed conduct which exhibits the absence of the slightest degree of
care.” Id. High negligence is when “[t]he operator knew or
should have known of the violative condition or practice, and there are no
mitigating circumstances.” Id. Moderate negligence is when
“[t]he operator knew or should have known of the violative condition or
practice, but there are mitigating circumstances.” Id. Low
negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are considerable mitigating
circumstances.” Id. No negligence is when “[t]he operator
exercised diligence and could not have known of the violative condition or
practice.” Id.

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

Gravity

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

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 the “authority to assess all civil
penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of
proposing penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the
Commission to assess said penalty. 29 C.F.R. § 2700.28.

Under Section 110(i) of the Mine Act, the Commission is to
consider the following when assessing a civil penalty: (1) the operator's
history of previous violations; (2) the appropriateness of such penalty to the
size of the business of the operator charged; (3) whether the operator was
negligent; (4) the effect on the operator's ability to continue in business;
(5) the gravity of the violation;
and (6) the demonstrated good faith in abatement of the violative condition. 30 U.S.C § 820(i). Thus, the Commission alone is
responsible for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the
Commission is bound by the Secretary's proposed penalties … we find no basis
upon which to conclude that [MSHA's Part 100 penalty regulations] also govern
the Commission.”); See American Coal Co.,
35 FMSHRC 1774, 1819 (July 2013)(ALJ Zielinski).

The Commission has repeatedly held that substantial deviations
from the Secretary's proposed assessments must be adequately explained using
the Section 110(i) criteria. E.g., Sellersburg Stone Co., 5 FMSHRC
at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Cantera
Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need
not make exhaustive findings but must provide an adequate explanation of how
the findings contributed to his or her penalty assessments. Cantera
Green, 22 FMSHRC at 622.

Although all of the statutory penalty criteria must be
considered, they need not be assigned equal weight. Thunder Basin Coal
Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Generally speaking, the magnitude
of the gravity of a violation and the degree of operator negligence are important
factors, especially for more serious violations for which substantial penalties
may be imposed. Musser Engineering, 32 FMSHRC at 1289 (judge
justified in relying on utmost gravity and gross negligence in imposing
substantial penalty); Spartan Mining Co., 30 FMSHRC at 725
(appropriate for judge to raise a penalty significantly based upon findings of
extreme gravity and unwarrantable failure); Lopke Quarries, Inc.,
23 FMSHRC at 713 (judge did not abuse discretion by weighing the factors of
negligence and gravity more heavily than the other four statutory criteria).
For example, violations involving “extreme gravity” and/or “gross negligence,” or,
as stated in the former section of 105(a), “an extraordinarily high degree
of negligence or gravity, or other unique aggravating circumstances,” may
dictate higher penalty assessments. See 30 C.F.R. Part 100 Final
Rule, 72 Fed. Reg. 13592-01, 13,621.

In addition, Commission ALJs are obligated to explain any
substantial divergence between a penalty imposed and that proposed by the
Secretary. As explained in Sellersburg Stone Co., 5 FMSHRC at 293:

When … it is determined that penalties are appropriate which
substantially diverge from those originally proposed, it behooves that
Commission and its judges to provide a sufficient explanation of the bases
underlying the penalties assessed by the Commission. If a sufficient
explanation for the divergence is not provided, the credibility of the administrative
scheme providing for the increase or lowering of penalties after contest may be
jeopardized by an appearance of arbitrariness.

Citation No.
8718116

Inspector Chiccarello issued Citation No. 8718116 on August
14, 2012. It alleges a violation of 30 C.F.R. § 56.14101(a)(2) pursuant
to Section 104(a) of the Mine Act. The regulation states, “If equipped on self-propelled
mobile equipment, parking brakes shall be capable of holding the equipment with
its typical load on the maximum grade it travels.” 30 C.F.R. § 56.14101(a)(2). Section 56.14101 is a mandatory safety standard. The citation alleges:

The parking brake on the Chevy 2500
pickup truck . . . did not work when tested on a grade (7 degrees measured by
an abney level). The parking brake did not hold while going up the grade but
did hold while facing down the grade. The truck is a standard and exposes
miners working in the area to [the hazard of being] struck by [the truck] that
has the potential of being fatal. The truck is operated by the superintendent
daily on the mine site and he was aware the parking brake did not function
properly when parked on a grade facing uphill.

Ex. S-4 at 1. The citation further alleges that an injury was
reasonably likely, the injury could reasonably be expected to result in a
fatality, the violation was significant and substantial, one person could be
affected, and there was a high level of negligence. Ex. S-4 at 1-2.

Violation

Citation No. 8718116 was issued during a “manager run” in
superintendent Jim Harless’s pickup truck. On a typical “manager run” a foreman
or superintendent provides the inspector with a guided overview of the mine in
a company vehicle at the start of the regular inspection. (Tr. 32: 5-8) Chiccarello
issued the citation after asking Harless to check the parking brake in his
pickup truck and subsequently discovering that the brake did not “hold” while
the vehicle was facing uphill. (Tr. 33:24 – 34:4)

According to Chiccarello, upon being asked to test the brakes,
Harless immediately responded that they did not work. (Tr. 32:9-11) Harless
then tested the parking brake for the inspector while the vehicle was facing
uphill and downhill, on a grade of seven degrees. The brake worked when the
vehicle was facing downhill, but did not work in the opposite direction. (Tr.
33:24 – 34:16; Ex. S-4 at 1) Chiccarello and Harless then took the vehicle to a
garage at the mine, and a mechanic promptly fixed the brake within 15 minutes. (Tr.
34:23 – 35:3; 263:1-2) After ensuring that the brake now worked both uphill and
downhill, Chiccarello terminated the citation at 9:10 in the morning. (Tr. 35:4-12)

The Respondent argues that it did not violate section 56.14101(a)(2) because: (1) the “standard does not
state how the parking brakes . . . should be tested” to ensure compliance; and,
(2) the Secretary “did not show that the parking brake ‘did not hold’ when the
vehicle was parked in the manner in which the vehicle is parked during actual,
day-to-day operations at the mine.” Resp’t Br. 3, 5. According to the
Respondent, its employees normally park the vehicle with its transmission in a
low gear, consistent with the guidance in the vehicle owner’s manual, and, as a
general policy at the mine, with the vehicle facing downhill and into a berm. Resp’t
Br. 3, 5 (citing Tr. 197:15-22; 303:4-16). According to Harless, the brakes
worked properly under these conditions. (Tr. 198:7-22)

Section 56.14101(a)(2) is silent as to the question of whether a
vehicle’s parking brakes must be capable of holding the equipment both uphill
and downhill, and regardless of whether or not the equipment is placed in a low
gear prior to testing. The standard is similarly silent as to whether the
parking brakes need only hold the equipment when the vehicle is parked in a manner
consistent with normal company policy. However, I find that the Secretary’s construction
of section 56.14101(a)(2) is more “consistent with Commission case law construing
regulations to further the protective purposes of the Mine Act.” Sunbelt
Rentals, Inc., 38 FMSHRC ___, slip op. at 7 n.16, No. VA 2013-275-M, (Jul.
12, 2016).

The standard is undoubtedly directed at the hazard of a vehicle
rolling uncontrollably down a grade, which can just as easily occur with a
vehicle facing uphill instead of downhill. Therefore, parking brakes must be
capable of holding the vehicle in both directions. The presence of a policy encouraging
miners to park the vehicle in only one direction does not alter that
requirement, as there is no guarantee that this policy will be followed. (See
Tr. 41:23 – 42:1) Indeed, Chiccarello credibly testified that miners typically
park their vehicles in the direction that they are heading. (Tr. 40:2-6). As to
RBS’s other parking practice, the fact that the vehicle could remain parked
while the transmission was in a low gear does not mean that the defective
parking brake complied with the standard’s requirement of being able to hold
the vehicle by itself. Chiccarello credibly testified that placing the
transmission in a low gear could temporarily hold the vehicle in place while
masking problems with the parking brake. (Tr. 321:12-24) Since the standard is
aimed at the proper functioning of the parking brake, independent of other
mechanisms that may also hold the vehicle, the parking brake must be capable of
holding the vehicle whether or not it is in a low gear.

For these reasons, I find that the Secretary has established a
violation of section 56.14101(a)(2).

Negligence

Chiccarello designated the citation as high negligence because,
as a superintendent, Harless was considered a part of mine management, and thus
Harless’s acknowledgment that the brake was not working meant that management
was aware of the violation. Additionally, RBS had been “cited on the exact
pickup truck in a previous inspection for the same park[ing] brake.” (Tr.
37:8-14) The Respondent argues that Chiccarello incorrectly recalled Harless’s
statements. Resp’t Br. 6. Harless testified that he only told Chiccarello that
the brakes were not working after Harless had already tested them for
him during the inspection and learned of the defective condition himself. (Tr.
196:7-15) Harless claimed that he was not aware of the defective brake prior to
that, because he had previously tested it under normal parking conditions at
the mine, and the brake functioned properly. (Tr. 197:4-14) The Respondent also
argues that the Secretary never introduced the prior alleged citation into
evidence and that Chiccarello himself could not remember the precise date or
substance of the previous citation. Resp’t Br. 6-7 (citing Tr. 139:3-7; 140:13-21).

I find the level of negligence to be lower than alleged. I
credit Harless’s testimony that he was unaware of the defective parking brake
before testing it for Chiccarello and that Chiccarello’s belief that Harless
acknowledged the defect even before testing it was mistaken. The company’s
normal testing procedure for the brake would not have alerted Harless to the
condition. RBS, as a policy, parked its vehicles downhill into a berm because
management believed that to be a much safer practice than parking the vehicle
uphill and chocking it. (Tr. 197:15-22; 303:4-16) Harless also typically placed
the transmission in a low gear before parking the vehicle, which would have
obscured the defective parking brake. (Tr. 198:14-22) While Harless is held to
a high standard of care as a superintendent at the mine, there are considerable
mitigating factors to explain why he was not aware of the violation. The fact
that RBS had violated the same standard with the same pickup truck before is
relevant to my negligence evaluation, but the single past violation alone does
not establish the “aggravated lack of care” associated with a “high negligence”
finding. Brody Mining, LLC, 37 FMSHRC 1687, 1703 (Aug. 2015) (quoting Topper
Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)).

Therefore, I find that the level of negligence was “moderate”
instead of “high.”

Significant
and Substantial and Gravity

The
first prong of the Mathies test has been met. The defective brake
also created a discrete safety hazard that the vehicle could fail to remain
parked on a grade and roll dangerously toward a miner standing behind it,
leading to a fatal injury. (Tr. 37:15-22) Thus, both the “fatal” and “1 person
affected” designations were appropriate, and the second and fourth Mathies
prongs have been satisfied. The remaining question is whether there was a
reasonable likelihood that the hazard would result in an injury. I find that
there was not.

Because the parking brake worked when the vehicle was facing
downhill (and presumably on level ground as well), the brake would hold the
vehicle in most circumstances, even without the additional steps that the
company took to prevent an accident. The company’s policy of always parking
vehicles downhill into a berm, with the transmission in a low gear, further
decreased the likelihood of injury, since the parking brake held the vehicle in
each of those scenarios.

The Secretary argues that any parking policy at the mine was not
communicated to Chiccarello and not implemented consistently during the
inspection. Sec’y Br. 7. However, Chiccarello did testify that Harless told him
“he parks in a berm when he stops and never parks uphill.” (Tr. 132:14-22) I
conclude that Harless parked in this manner because of the company’s policy,
which was credibly described in detail by the company’s vice-president, William
Snyder, at the hearing. (Tr. 302:11 – 303:16) To the extent that Harless was
inconsistent in following that policy during the inspection, I conclude that he
only violated that policy during the inspection in order to comply with Chiccarello’s
directions during the inspection. (Tr. 196:1-6)

Given these findings, the S&S designation will be deleted.

Penalty

The Secretary assessed the penalty for this citation at
$7,578.00. Exhibit A of the Secretary’s penalty petition credits RBS with
27,807 hours worked annually at the Greystone Quarry. Ex. S-1. Based on this
information, I consider RBS to be a relatively small operator. Additionally,
this was the first time that RBS was cited under this standard within the 15
months prior to the inspection, although RBS had committed 37 violations in the
prior 5 inspection days. Ex. S-1. As I found above, RBS was moderately
negligent. I find that the company demonstrated good faith in the abatement of
the violative condition. The parties stipulated to the fact that the assessed
penalty will not significantly affect RBS’s ability to stay in business. Jt.
Pre-Hearing Report. As to the gravity of the violation, I found the violation
was not S&S, as it was unlikely that the hazard contributed to by the
violation would lead to injury. However, I found that if an injury did occur,
it could be reasonably expected to be fatal to one miner.

The Secretary failed to prove that the gravity of the violation
or the degree of operator negligence was as high as alleged. Therefore, I
assess a penalty in the amount of $460.00.

Citations Nos. 8718118
and 8718119

On February 25, 2014, Inspector Chiccarello observed what he
believed to be a hazardous muckpile on a highwall in the pit area, which
prompted him to issue three citations alleging violations of the Secretary’s
mandatory safety standards. One of the three citations (No. 8718117) was
subsequently vacated for being duplicative of Citation No. 8718118. (Tr. 142:4-10)

Citation 8718118 alleges a violation of Section 56.9314, which
requires that “muckpile faces shall be trimmed to prevent hazards to persons.”
30 C.F.R. § 56.9314. The citation states:

Upon an inspection of the second level mine pit it was observed
that unconsolidated material had not been trimmed back and/or sloped to the
ang[le] of repose on the 50 foot high muck pile. Employees working in and
around this area were exposed to the possibility of injury from the
fall-of-material hazard. The mine regularly operates a 9888 front-end loader in
this area. The front-end loader was not working in the area at the time of the
inspection. I was informed the loader was working against the pile earlier in
the day and yesterday February 24th 2014. Mine management indicated they do
work out of the pile and he did not consider it a hazard.

Ex. S-6 at 1. The citation further alleges that an injury was
reasonably likely, the injury could reasonably be expected to result in a
fatality, the violation was significant and substantial, one person could be
affected, and there was a high level of negligence. Ex. S-6 at 1, 3. The
citation was terminated on March 12, 2014. The termination order states:

Upon inspection the muck pile in the 2nd
level pit was knocked down and no longer has material overhanging the pile. The
material is now sloped for easy access for the front end loader to dig from the
pile. Mine management has brought in a Hitachi UH261 excavator and CAT OSK bull
dozer to maintain the piles. This order is terminated.

Ex. S-6 at 2.

Chiccarello also issued Citation No. 8718119 for an alleged
violation of Section 56.3200. The standard states:

Ground conditions that create a hazard to persons shall be taken
down or supported before other work or travel is permitted in the affected
area. Until corrective work is completed, the area shall be posted with a
warning against entry and, when left unattended, a barrier shall be installed
to impede unauthorized entry.

30 C.F.R. § 56.3200. The citation alleges:

Upon an inspection of the of the pit's
50 foot high wall (Muck Pile), ground conditions were observed that created a
hazard to mine employees. Several large boulders had not been scaled down at
the southwest corner of the working face of the high wall. No warning signs or
barriers were provided to prevent entry in this area, until this condition could
be corrected. This hazard exposed the front end loader operator and other
haulage equipment in the area to the possibility of fatal injury should the
rocks fall. This area is where active mining is being conducted. I was informed
work was conducted at the toe of the wall earlier in the day and yesterday
February 24, 2014. Mine management was aware of the condition and did not think
[it] was a hazard. He also stated they were finished in the area and were going
to shoot the high wall next to it to bring down the remaining loose material
that was hanging up high on the muck pile. There was no catch berm or signs to
warn or prevent entry to the area.

Ex.
S-8 at 1-2. The citation was terminated the same day, once a “sign and a berm
were put in place to warn and prevent miners from entering the affected area.”
Ex. S-8 at 3. The citation further alleges that an injury was reasonably
likely, the injury could reasonably be expected to result in a fatality, the
violation was significant and substantial, one person could be affected, and
there was a high level of negligence. Ex. S-8 at 1-2, 4.

Violation

Chiccarello
issued Citation Nos. 8718118 and 8718119 after observing a muckpile consisting
of several large rocks and boulders on the face of a highwall, hanging roughly
50 feet overhead. (Tr. 49:4-9) Chiccarello felt that the condition posed a
hazard due to the size of the boulders and because they were not at an angle of
repose. (Tr. 49:6-9; 55:12-24) He worried that miners digging at the toe of the
highwall could be crushed if mining activities or thawing caused by fluctuating
weather loosened the rocks. (Tr. 50:18-24) Citation No. 8718118 was issued for
the failure to trim the muck pile on the highwall, while Citation No. 8718119 was
issued for the failure to block off the area below and post a sign to prevent
miners from entering the area, where they could be struck by falling rocks. Exs.
S-6 at 1; S-8 at 1-2.

Sections
56.3200 and 56.9314 require the Secretary to first prove that the cited ground
conditions and failure to trim the muckpile created a hazard to persons. I find
that the Secretary failed to meet this burden for both citations. Harless
credibly testified that the Respondent had previously scaled the highwall and
tried to dislodge the cited rocks with an excavator in the course of its normal
mining operations, but that the rocks were tied to the highwall and did not
budge. (Tr. 201:19 – 202) Eventually, the rocks were blasted loose from the
highwall in order to abate one of the citations. (Tr. 205:24 – 206:1) Given the
difficulty in removing the muck pile, I do not find that the rocks posed a
hazard of coming loose and falling on miners below. Cf. Springfield
Underground, Inc., 17 FMSHRC 613 (Apr. 1995) (ALJ Maurer) (finding that
ground conditions do not create a “hazard to persons” for the purpose of
section 57.3200 if the allegedly hazardous “material has to be pried off the
rib with thousands of pounds of material force”).

It
is understandable that the inspector may have believed there was a hazard from
his perspective, as the boulders do appear dangerously large, unstable, and
capable of falling from the highwall in the photographs he took prior to the
citations’ abatement. See Ex. S-7 at 4-5. Even Snyder, the company’s
vice-president, believed that the rocks posed a hazard when he viewed them from
the bottom of the highwall. (Tr. 296:13-18) However, a closer vantage point and
further information about the company’s prior unsuccessful attempts to dislodge
the rocks convinced Snyder that there was no hazard, and I agree with his later
assessment. (Tr. 296:19 – 298:24)

The
Secretary argues that the Respondent admitted to Chiccarello during the
inspection that it did not have any way of reaching the muck pile with the
equipment on site, and that there was no excavator or bulldozer on site during
the inspection which could have created a path to the muckpile and trimmed it.
Sec’y Br. 13. According to the Secretary’s theory, these facts led to RBS
failing to address the hazard, instead of any genuine belief that there was no
hazard. Id. I find that that the inspector simply misconstrued a comment
from an RBS agent in reaching this conclusion.

Harless
denied ever telling Chiccarello or believing that it was unsafe to travel to
the muck pile. (Tr. 210:11-15) However, Chiccarello testified that when he
sought an explanation for why RBS had not trimmed the muck pile prior to the
citation, he was told that the only way the company could remove the rocks was
by blasting them, as the company had no other way of getting them down. (Tr.
159:1-3) It appears that the inspector interpreted this statement to mean that
the company had no way of safely reaching the muckpile without further
blasting, when in fact it meant that the company had no way of dislodging the
rocks without blasting them. Additionally, both Harless and Mark Drennen, the
mine mechanic, credibly testified that there was an excavator and bulldozer on
site on the day of the inspection. (Tr. 204:9-12; 266:21 – 267:1)

To
summarize, I find that RBS did have an excavator and bulldozer on site that
could safely access the muckpile and that the company did attempt to trim the
muckpile with the excavator prior to being cited, but that the rocks that Chiccarello
identified as hazardous could not be dislodged in this manner. Instead, the company
had to blast the rocks to trim the muckpile successfully. I cannot find the
cited rocks to be hazardous given that they could only be pried loose with
explosive material instead of an excavator.

For
these reasons, I find that the Secretary has failed to establish the fact of
violation for Citation Nos. 8718118 and 8718119.

Citation
Nos. 8718120 and 8718121

On February 26, 2014, Chiccarello issued Citation Nos. 8718120
and 8718121 for violations of Sections 56.14101(a)(2) and 56.14100(a), pursuant
to Section 104(a) of the Mine Act.

Sections 56.14101(a)(2) states, “If equipped on self-propelled
mobile equipment, parking brakes shall be capable of holding the equipment with
its typical load on the maximum grade it travels.” 30
C.F.R. § 56.14101(a)(2). Citation No. 8718120 alleges:

The Komatsu WA500, company #L-34, was put into use to load a
truck while the loader operator knew the park brake did not work. He stated the
park brake has not worked since 2/11/2014. The preoperational checks showed the
park brake was not functional on seven different dates from 2/11/2014 through
2/19/2014. The preoperational check list was never turned into mine management.[2]
This hazard exposes miners to injuries that have the potential of being fatal.
The loader is used throughout the mining operation to load customer trucks.

Ex. S-10 at 1. The citation further alleges that an injury was
reasonably likely, the injury could reasonably be expected to result in a
fatality, the violation was significant and substantial, one person could be
affected, and there was a low level of negligence. Ex. S-10 at 1.

Chiccarello also issued Citation No. 8718121 for an alleged
violation of Section 56.14100(a), which states “Self-propelled mobile equipment
to be used during a shift shall be inspected by the equipment operator before
being placed in operation on that shift.” 30 C.F.R. § 56.14100(a). The citation
alleges:

The pre-operational check was not
conducted for the Komatsu WASOO, company #L-34, as stated by the loader
operator. The last preoperational check was conducted on 2/19/2014. That preop
check indicated the park brake did not work. The loader operator [k]new this
and said he had to load a truck and needed a loader and used it. The loader
operator knew he is required to do a preop check but neglected to do so. Miners
were exposed to a higher degree of hazards and injuries due to the failure to
observe, report, and correct potential defects and hazards on the equipment.

Ex.
S-12 at 1. The
citation further alleges that an injury was reasonably likely, the injury could
reasonably be expected to result in a fatality, the violation was significant
and substantial, one person could be affected, and there was a low level of
negligence. Ex. S-12 at 1.  

Violation

These
citations both concern a front-end loader that was improperly put back into
service by an RBS employee after being tagged out for repairs due to a
defective parking brake. Citation No. 8718120 was issued for the defect itself,
while Citation No. 8718121 related to the loader operator’s failure to conduct
a pre-operation (“pre-op”) exam prior to using the loader. Exs. S-10 at 1, S-12
at 1.

The
loader had been tagged out due to the defect for at least a few days – possibly
up to two weeks prior to the citations – and was sitting unused at the mine
during that period.[3]
(Tr. 214:3-8) It was not fixed immediately upon being tagged out because it was
merely a spare loader, and the mine mechanic, Mark Drennen, was attending to
higher priority concerns on other equipment. (Tr. 266:1-3) However, on the day
of the inspection, one of the primary loaders at the mine broke down, and a
loader operator subsequently informed the mine superintendent, Jim Harless, of
the need to fix the parking brake on the spare loader so that he could continue
production. (Tr. 214:9-12) Harless told the operator that he would fetch the
mechanic and return within about five minutes, and he explicitly instructed the
operator not to move the defective loader until he returned. (Tr. 214:12-18)

Before
Harless and Drennen returned, Chiccarello observed the loader operator parking
the spare loader in defiance of Harless’s instructions. (Tr. 87:4-8). Chiccarello
questioned the employee and discovered that the parking brake did not work and
that he had not conducted a pre-op check on the equipment before using it. (Tr.
87:9-13) When Chiccarello asked him why he would do this, the loader operator
responded, “[T]hat’s how we do it around here[;] I had to get that customer
truck out of here.” (Tr. 87:14-17) Chiccarello cited the company for the
defective brake and a failure to conduct a pre-op exam, and the citations were
abated that day once Drennen repaired the defect and the loader operator was
task trained on how to fill out and turn in pre-op exam sheets. Ex. S-10 at 1;
S-12 at 1.

The
Respondent argues that it complied with both standards because the loader was
tagged out. Since “equipment that has been ‘removed from service’ is not
required to be defect-free” for the purposes of 56.14101(a)(2) and the pre-op
exam requirements in 56.14100(a) only apply to “equipment to be used during a
shift,” the Respondent argues that its removal of the loader from service with
no intention to use it during a shift negates the fact of the violation for
both citations. Resp’t Br. 12-17. I disagree. The vehicle may have been removed
from service when it was tagged out, but it was very much in service for the
purpose of section 56.14101(a)(2) when the inspector observed it and issued a
citation. I also find that the phrase “to be used during a shift” in section
54.14100(a) encompasses situations in which the equipment is actually used
during a shift.

Since
there is no dispute that the parking brake did not hold the vehicle and that
the loader operator failed to conduct a pre-op inspection prior to use of the
vehicle, I find a violation for both citations.

Negligence

Chiccarello
designated the negligence for both citations as “low” because the mine
superintendent had instructed the loader operator not to use the defective
vehicle, miners were trained to perform pre-op exams and not to use defective
or tagged out equipment, and mine management was not aware of the defect on the
vehicle prior to the day of the inspection. (Tr. 95:4-13; 105:4-17; 177:1 – 178:12)
The vehicle was parked in the designated tag-out area during that period, so
mine management would have known that the vehicle was defective in some way,
but they would not have expected the defective equipment to be used or to cause
any problems. (Tr. 109:5-11; 117:1-6)

The
Respondent argues that the level of negligence should be lowered to “none” for
both citations in effect because the violations reflected the willful
misconduct of a rogue employee rather than any failure to exercise diligence on
the part of the company. Resp’t Br. 15, 17. However, the Commission has stated
that “[t]he fact that a violation was committed by a non-supervisory employee
does not necessarily shield an operator from being deemed negligent.” A.H.
Smith Stone, Co. 5 FMSHRC 13, 15 (Jan. 1983). In assessing an operator’s
negligence in such cases, the Commission takes into account “such
considerations as . . . the operator's supervising, training, and disciplining
of its employees to prevent violations of the standard in issue.” Id. I
find the employee’s statement, “That’s how we do it around here[;] I had to get
that customer truck out of here,” to be relevant to this analysis. (Tr.
87:15-17) Even if the employee was entirely mistaken about the mine’s tendency
to value production over safety, greater efforts in training and supervision were
required to make that clear to him.

Additionally,
there is some indication that the failure to conduct a pre-op in Citation No. 8718121
was not an isolated incident, but instead indicated larger problems with the
pre-op practices at the mine. Multiple weeks’ worth of pre-op documentation,
including for the pre-op that originally identified the parking brake defect,
was not turned in to management and was instead left inside the spare loader. (Tr.
96:13-22) MSHA requires miners to notify management when they identify a
hazardous defect in a pre-op. (Tr. 178:20-23) The same breakdown in training
and supervision that presumably led to those repeated failures likely contributed
to the loader operator failing to conduct a pre-op before returning the vehicle
into service.

I
find that the “low negligence” designation was appropriate for Citation No
8718120. However, I find that the level of negligence for Citation No. 8718120
was even greater than originally designated, that is “moderate” instead of
“low.”

Gravity
and Significant and Substantial

Chiccarello
found both violations to be significant and substantial and reasonably likely
to lead to a fatal injury to one miner. Ex. S-10, S-12. The defective parking
brake for Citation No. 8718120 posed a discrete safety hazard of a large
front-end loader striking or crushing a single miner in its path, and such
injury could reasonably be expected to be fatal to one person. (Tr. 92:19 –
93:4) Citation No. 8718121 presented the additional discrete safety hazard of
the loader operator failing to detect further defects on the vehicle without a
pre-op inspection. (Tr. 104:19 – 105:3) Operating the vehicle with unidentified
defects could likewise prove fatal to a single miner. Therefore I agree with
the “fatal” and “one person affected” designations for both citations and find
that three of the four Mathies prongs have been satisfied. The remaining
question is whether there was a reasonable likelihood of injury. I find there
was not.

The
primary consideration for this finding is the very limited amount of time that
miners were exposed to the vehicle’s hazard, even assuming continued mining operation.
The defective vehicle had been tagged out of service and was not used prior to
the inspection in that defective state, and the mine’s mechanic was already on
his way to repair the vehicle when the inspector cited it. (Tr. 214:9-18;
264:21 – 265:8) I do not find that an accident or injury was reasonably likely
in that small window of time between when the vehicle was put back into service
and when the mechanic arrived. I find that an injury resulting from this hazard
was unlikely.

The
S&S designations for Citation Nos. 8718120 and 8718121 will be deleted.

Penalty

The
Secretary assessed the penalties for these two citation at $1,026.00 each. I
have found RBS to be a relatively small operator. Exhibit A of the Secretary’s
penalty petition indicates that RBS had an insignificant history of violating the
cited mandatory safety standards for these two citations, but a more
considerable number of violations generally in the prior seven inspection days.
Ex. S-1. I found a low level of negligence for Citation No. 8718120, but a
“moderate” amount of negligence for Citation No. 8718121. I find that the
company demonstrated good faith in the abatement of the violative condition.
The parties stipulated to the fact that the assessed penalties will not
significantly affect RBS’s ability to stay in business.[4] Jt.
Pre-Hearing Report. As to the gravity of the violations, I found the violations
were not S&S, as it was unlikely that the hazards contributed to by the
violations would lead to injury. However, I found that if an injury did occur,
it could be reasonably expected to be fatal to one miner.

The
Secretary failed to prove that the gravity of the violations was as high as
alleged. However, the level of negligence for Citation No. 8718121 was higher
than alleged. Therefore, I assess a penalty in the amount of $207.00 for
Citation No. 8718120 and $460.00 for Citation No. 8718121.

Citation
No. 8718115

At
the hearing, the parties agreed to settle Citation No. 8718115 for the
originally assessed amount of $100.00, without any modifications. I conclude
that the proffered settle­ment is appropriate under the criteria set forth in
section 110(i) of the Act.

ORDER

In view of the
above findings, conclusions, and settlement approval, within 30 days of the
date of this decision the Secretary IS ORDERED to:

·        
Modify
Citation
No. 8718116 to reduce the level of negligence from “high” to “moderate,” to
delete the “significant and substantial” designation, and to reduce the
likelihood of injury or illness from “reasonably likely” to “unlikely;”

·        
Vacate
Citation Nos. 8718118 and 8718119;

·        
Modify
Citation No. 8718120 to delete the “significant and substantial” designations
and to reduce the likelihood of injury from “reasonably likely” to “unlikely.”

·        
Modify
Citation No. 8718121 to delete the “significant and substantial” designations,
to reduce the likelihood of injury from “reasonably likely” to “unlikely,” and
to raise the level of negligence from “low” to “moderate.”

WHEREFORE, it is ORDERED
that RBS pay a penalty of $1,227.00 within thirty (30) days of the filing of
this decision.[5]

/s/ L. Zane Gill

L. Zane Gill

Administrative
Law Judge

Distribution:

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

Nicholas
W. Scala, Esq., Conn Marciel Carey PLLC, 5335 Wisconsin Avenue NW, Suite 660,
Washington, D.C. 20015

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

[1] At the time of
this hearing, Mr. Scala was employed by the Law Offices of Adele Abrams, LLC,
as reflected in the transcript dated February 18, 2015.

[2] Although a
loader operator had apparently conducted pre-op exams on the defective vehicle
for nearly two weeks without turning in the documentation for those exams to
management, none of the post-hearing briefs reference this fact or explain its
relevance to the citation. Chiccarello suggested that this fact mitigates RBS’s
negligence because management would not have been aware of the defect if they
never received the pre-op forms. (Tr. 96:12-19) However, they were aware that
the equipment was tagged out for a defect, and the superintendent learned of
the specific defect shortly before the company was cited. (Tr. 108:8-9;
109:5-11) The more pertinent issue is RBS’s negligence in allowing the
defective vehicle to be returned into service.

[3] The record is
unclear about the amount of time that the defective vehicle spent tagged out of
service. Harless suggested that it had been sitting out in the tag out area for
a few days. (Tr. 214:4-8) Chiccarello speculated that the vehicle had been
tagged out for a week or two. (Tr. 108:11-15) Chiccarello noted in passing that
the fact that pre-ops were being documented regularly on that vehicle during
that timeframe raised his suspicion that an operator may have been putting the
defective vehicle back into service on other occasions. (Tr. 109:21 – 110:2)
But, the Secretary did not develop this argument any further at hearing or in
his post-hearing brief.

[4] The parties
argued extensively at hearing and in their post-hearing briefs about whether an
increased penalty would affect the operator’s ability to remain in business.
Since I have not increased the penalties on any of the citations and the
parties have already stipulated to the operator’s ability to pay the assessed
penalties, there is no need to resolve this dispute.

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