–2– 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE

721 19th ST. SUITE 443

DENVER, CO 80202-2500

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

March 14, 2024 

DECISION AND ORDER

Appearances: Rebecca W. Mullins, U.S. Department of Labor, Office of the Solicitor, 

201 12th Street South, Suite 401, Arlington, VA 22202 

Donna Vetrano Pryor, Husch Blackwell LLP, 1801 Wewatta Street, Suite 

1000, Denver, CO 80202 

Before: Judge Simonton 

I. INTRODUCTION

These cases are before me on a petition for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration, against Morton 

Salt Inc. (“Morton Salt” or “Respondent”) and Quinn Norwood, pursuant to the Federal Mine 

Safety and Health Act of 1977 (Mine Act), 30 U.S.C. § 801.1

 These cases involve one Section 

104(a) Citation No. 9646138 with a proposed penalty of $2,573.00 against Morton Salt, one 

Section 104(d)(1) Citation No. 9646139 with a proposed penalty of $12,754.00 against Morton 

Salt and a proposed penalty of $4,600.00 against Quinn Norwood. On September 21, 2023, the 

Secretary filed a Notice of Vacatur with the Court vacating 104(a) citation 9646138. 

 

1 In this decision, the joint stipulations, transcript, Secretary’s exhibits, and Respondent’s 

exhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. S–#,” and “Ex. R–#,” respectively.

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA),

 Petitioner,

 v. 

MORTON SALT INC., 

 Respondent. 

 & 

QUINN NORWOOD,

 Respondent. 

CIVIL PENALTY PROCEEDINGS

Docket No. CENT 2022-0135 

A.C. No. 16-00970-549832 

Docket No. CENT 2023-0109 

A.C. No. 16-00970-571154 A 

Mine: Weeks Island Mine & Mill
The parties presented testimony and documentary evidence regarding the remaining 

citation 9646139 at issue at a hearing held on, November 6, 2023, in Lafayette, Louisiana. 

MSHA Inspector Chad Derouen and Special Investigator Mark Shearer testified for the 

Secretary. Landon Olivier, the mine’s Safety Manager, and employees Quinn Norwood and 

Travis Mallette testified for the Respondent. After fully considering the testimony and evidence 

presented at hearing and the parties’ post-hearing briefs, I AFFIRM Citation No. 9646139 as 

issued.

II. STIPULATIONS OF FACT

At hearing, the parties agreed to the following stipulations:

1. Morton Salt is the operator of Weeks Island Mine, Mine ID 1600970.

2. Weeks Island Mine is an underground salt mine in Louisiana.

3. Morton Salt, Inc., is subject to the jurisdiction of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. §§ et seq. (the “Mine Act”).

4. The Administrative Law Judge has jurisdiction over these proceedings pursuant to § 105 

of the Mine Act.

5. The subject violations were properly served by a duly authorized representative of the 

Secretary upon an agent of Morton Salt on the date and place stated on the citations and 

may be admitted into evidence for the purposes of establishing their issuance.

6. The proposed penalty in CENT 2022-0135 will not affect Morton Salt’s ability to 

continue in business.

7. Morton Salt demonstrated good faith in abating Citation No. 9649139.

8. On January 11, 2022, MSHA Inspector Chad Derouen reviewed video recordings from 

Morton Salt’s cameras that included footage from underground and multiple surface 

areas.

9. Inspector Derouen created a timeline of events based on the video footage. He included 

the timeline on page 11 of his general field notes, DOL 0027.

10. Derouen’s timeline accurately reflects what he observed in the video.

11. Mr. Derouen viewed this video in the presence of the following Morton Salt personnel: 

Landon Olivier, Ryan McBride, and Rob Freeman.

12. Morton Salt did not retain a copy of this video.

13. It is undisputed that a violation of 30 C.F.R. § 57.22601(a) occurred. 
–4–

Tr. 6-7.

III. FINDINGS OF FACT AND SUMMARY OF TESTIMONY

Morton Salt, Inc., operates the Weeks Island Mine, an underground salt mine located in

Louisiana. Tr. 8; Jt. Stip. 1. Because Weeks Island is a gassy mine that is known to liberate 

methane, the operator is required to ensure that all miners are on the surface before initiating 

blasting. Tr. 8. Management utilizes a tag-in/tag-out board (“tag board”) to keep track of every 

miner that is underground. Tr. 21; Ex. S-4. Each individual miner is assigned a tag, and the tag’s 

position on the board indicates whether the miner is in the mine or out of the mine. Tr. 21, 111. 

For contractors and other visitors like MSHA inspectors, miners are assigned a general tag that is 

recorded in a sign in and out book. Tr. 22, 112. The left two-thirds of the board is reserved for 

Morton Salt employees; the left side stores the tags, and the middle shows which employees are 

underground. Tr. 29-30, 111-12. The right third of the board is reserved for contractors’ tags. Tr. 

30, 112. When the tag is black or colored, the miner is in the mine and when it is white, the 

miner is on the surface. Tr. 183. 

To comply with safety standards, management must ensure that the mine is clear and 

there is no one who remains underground before initiating blasting. Morton Salt developed a 

Standard Operating Procedure (“SOP”) that outlines how to properly clear the mine. Tr. 106-07; 

Ex. R-G. If the supervisor is preparing to blast and there is still a tag that is flipped over on the 

board, it is his responsibility to contact that person and ensure they are out of the mine before 

proceeding with blasting. Tr. 26; Ex. R-G. According to the SOP, both the foreman and the 

powderman are required to check the tag board before initiating a blast. Tr. 50-51, 69; Ex. R-G.

While the SOP states that the powderman must also check the tag board, the powderman is not a 

supervisor. Tr. 167. Miners receive blasting training during their new hire training and then 

refresher training yearly. Tr. 104. This training involves reviewing the SOP with a production 

supervisor who also demonstrates the process. Tr. 139-40. 

Weeks Island generally blasts every day at the same time to make it easier for miners to 

know when the blast is going to occur. Tr. 146-47. Typically, a supervisor informs miners when 

blasting is going to occur on that day. Tr. 163. This information is communicated verbally to the 

miners on that shift, including contractors. Tr. 105-06. Four months prior to the incident, the time 

of blasting had been moved to 3:00 p.m., which is the end of the day shift. Tr 165. An hour 

before blasting is supposed to occur, miners will generally start exiting the mine. Tr. 147. When 

tying up the rounds for blasting, the leadman will sweep the mine areas to ensure there is no one 

left in the mine underground. Tr. 148.

On January 10, 2022, MSHA received a hazard complaint that Morton Salt blasted at the 

Weeks Island Mine while four contractors from American Mine Services were still underground

and unaccounted for. Tr. 8. This blast took place around 3:00 p.m. Tr. 18. Prior to blasting, 

temporary production foreman (or leadman) Quinn Norwood and the powderman, in accordance 

with the SOP, went underground to drive through the mine and to tie-in the explosive rounds. Tr. 

54-55. Video footage showed the contractors walking up to a shaft landing underground at 3:04 

p.m. Tr. 31-32; Ex. S-3-11. The miners arrived back at the surface at 3:14 p.m. Tr. 61; Ex. S-3-

14. 
–5–

Inspector Chad Derouen conducted the investigation after the blast occurred on January 

10, 2022, arriving at the mine at approximately 5:00 p.m., two hours after the blast. Tr. 17-18. 

Many of the people who had been present for the blast had already left, but the inspector was 

able to interview Quinn Norwood, who was the temporary production foreman that day. Tr. 19. 

As production foreman, Norwood was responsible for overseeing the production crew on shift 

and for blasting and clearing the mine. Tr. 20. Inspector DeRouen returned to Weeks Island the 

next day, January 11, to interview those present at the time of the blast including the four 

contract miners Tr. 23, 53. The contract miners told the inspector that they did not know the blast 

went off while they were underground, that they did not feel the blast, and that they only found 

out about the blast when they were back on the surface. Tr. 53-54. No methane had been detected

from the blast. Tr. 56.

As part of his investigation, Inspector Derouen reviewed video footage of the room with 

the tag board and took notes based on his observations. Tr. 23; Ex. S-3. The footage was not 

retained by Morton Salt and was not presented at hearing. Jt. Stip. 12. The inspector testified that 

Norwood cleared the mine but “[d]idn’t even look at the right side of the tag board” where the 

contractors’ tags are located. Tr. 25; Ex. S-3-11. Norwood entered the room, and noticed there 

was a Morton Salt employee tag in the middle of the tag board that had not been turned over, 

indicating the employee was still in the mine. Tr. 26-27. Norwood then left the room to find that 

employee, and returned to the room to flip the tag to reflect that they were not in the mine. Tr. 

27-28. Based on the actions in the video, the inspector did not believe that Norwood looked at 

the right side of the tag board where there were four contractors’ tags that were flipped over to 

show they were still in the mine in either of the two times he was in the room to view the tag 

board. Tr. 27-28. The inspector did not see the powderman on the video, who is also tasked with 

checking the tag board under Morton Salt’s SOP. Tr. 68. He testified that he did not speak with 

the powderman during the course of his investigation and did not know with certainty whether 

the powderman checked the tag board. Tr. 50-51.

When questioned by the inspector about the procedure he took to clear the mine, 

Norwood stated that he did not see the contractor tags on the board when he declared that the 

mine was clear and that he did not look at the right side of the board. Tr. 33-34; Ex. S-3-7.

Norwood reportedly told the inspector that he “got in a hurry” when the inspector was 

conducting his interview. Tr. 32-33; Ex. S-3-7. Another employee also told the inspector that 

Norwood seemed to be “in a big hurry” to clear the mine. Ex. S-3-10. 

The inspector testified regarding the hazards of blasting while there are still people 

underground. As a gassy mine, Weeks Island has a history of liberating methane after blasting. 

Tr. 37. Methane liberations are unpredictable, happen at various times and can cause secondary 

ignitions leading to a secondary blast. Tr. 36-37. Further, blasting can create sound and shock 

waves that can carry a long distance underground and have a concussive effect in confined 

spaces. Tr. 38. In certain circumstances, blasting can lead to flyrock or pieces of salt that can 

become projectiles. Tr. 39. The special investigator corroborated these hazards testifying that it is 

hazardous to leave miners underground during blasting because it exposes them to dangers such 

as fall of material, roof collapses, or if methane is unexpectedly liberated, explosions. Tr. 80. 
–6–

In response to this violation, Inspector Derouen issued a citation, determining that it was 

reasonably likely to cause fatal injuries to four miners. Tr. 35-36, 39. He marked the violation as 

an unwarrantable failure because agents of the mine have a responsibility to miners under their 

watch which did not appear to be taken into consideration when it was time to blast. Tr. 40. The 

violation was also determined to be significant and substantial, because although there was no 

methane liberation in this instance, there is always the potential in a gassy mine for one that can 

lead to secondary explosions. Tr. 36-38. The inspector determined that the events which 

transpired on January 10, 2022, posed a high degree of danger. Tr. 40. The inspector marked the 

violation as high negligence because he believed that Norwood, as the foreman, had the 

experience to complete the task properly and failed to do so. Tr. 71. The investigator testified 

that this appeared to be an isolated incident and the condition was immediately abated. Tr. 59. 

Special Investigator Mark Shearer also testified for the Secretary as to the findings of his 

special investigation. He did not speak to Quinn Norwood or view the video footage that the 

inspector did because it was no longer available. Tr. 76-78. The investigator recommended a 

110(c) penalty be imposed on Norwood, because it was his job as the foreman to make sure that 

the mine was clear. Tr. 78. He credited the fact that Norwood removed the single Morton Salt 

employee tag as evidence that Norwood was present but found that Norwood did not look over 

the entire board. Because the tags were easy to recognize against the board itself and Norwood 

knew that there were contractors working that shift, the special investigator determined that the 

violation was blatant and obvious. Tr. 79–82. Shearer testified that the only way Norwood could 

have corrected the violative condition would have been to make sure they were out of the 

underground mine. Tr. 80. And even though Shearer had no specific information that Norwood 

knew at the time of the blast the miners were underground, it was the fact that there was so much 

overwhelming reason for him to know they were still underground that certainly factored into his 

decision to recommend a 110(c) penalty. Tr. 80-81. In other words, there is no excusing the fact 

that Norwood should have known those miners were still underground. The evidence was right 

in front of him on the board. It was just blatant and obvious. Tr. 82. Further, Shearer noted the 

actual location of the contract miners did not factor into his analysis because Norwood had no 

knowledge of their location at the time of the blast. Tr. 83-84. Shearer also found evidence that 

Norwood rushed through the blasting process, and that the operator recently changed the time of 

the blast from the start of the night shift to the end of the day shift as motivation for speeding up 

the process. Tr. 91-92. 

Landon Olivier, the site safety trainer at the mine, accompanied the inspector when he 

investigated the violation and testified for the Respondent at hearing. Tr. 113. He confirmed that 

both Quinn Norwood and the powderman were disciplined for the incident. Tr. 113-14; Ex. R-H.

As part of his own investigation, he interviewed the miners who had been underground during 

the blast, all said that they neither felt nor heard the blast. Tr. 115. He confirmed that the miners 

had been at the 1500 level of the mine, while the site of the blast was on the 1600 level. Tr. 115-

17; Ex R-C. These levels are approximately 2,600 feet apart. Tr. 120. To get back to the surface, 

the miners needed to travel to the 1400 level, which is even farther from the blast site at 

approximately one mile away. Tr. 119, 121. In Olivier’s opinion, the miners were not in a great 

degree of danger because they had been so far away from where the blasting took place. Tr. 122.

He testified that Morton Salt had never been put on notice that greater efforts were needed for 

compliance regarding the regulation that miners should not be underground while blasting. Tr. 
–7–

122. Finally, although the mine had liberated methane after blasting in the past, there had never 

been an explosion as a result of methane liberation during Olivier’s employment. Tr. 127. He did

acknowledge, however, that methane liberation is impossible to predict. Tr. 131-32. 

Quinn Norwood testified for the Respondent regarding his involvement in the blasting 

incident. At the time of the blast, he was employed in the Miner A position, meaning that he 

performed all jobs in production. Tr. 139. He confirmed that he had received both powderman 

and blasting training. Tr. 139-40; Ex. R-E. As part of his responsibilities, he would act as a 

leadman and temporary production supervisor when supervisors were out. Tr. 142-143. This was 

the role he was in on the day of the blast. In the past, he has served for four weeks out of the year 

in this temporary role. Tr. 142-43. Norwood had participated in hundreds of blasts prior to 

January 10, 2022. Tr. 172, 177.

At hearing, Norwood testified that he was aware that contract miners were working the 

day of the blast, but he did not know they were still underground, and he did not see them in their 

work area when he was conducting his sweep. Tr. 156-57, 167-68. When he first checked the 

board, he saw that there was still a Morton Salt employee tagged in, based on the tag’s location 

in the middle of the board. Tr. 153-54. Norwood left to check that the employee was not in the 

mine and returned to the board to flip the employee’s tag over, looking at the board for a second 

time. Tr. 154-55. Before returning to the board to flip the tag, Norwood testified that he spoke to 

the powderman who told him that the mine was clear. Tr. 145, 171. He only saw the four 

contractor tags on the right side after the blast. Tr. 155, 179. Norwood denied rushing through 

the blasting procedures. Tr. 162.

Travis Mallette is a current Morton Salt employee who testified for Respondent. At the 

time of the incident, he was one of the contract miners who was underground. Tr. 188-89. He 

stated that he and his team knew what time the blasting was scheduled to occur on January 10, 

2022, yet they were still underground at 3:00 pm. Tr. 190. He explained that he and the other 

miners took a bit longer to clean up than they normally would before leaving the mine to return 

to the surface. Tr. 195. He learned that the blasting had occurred after they returned to the 

surface, and that he did not feel or hear the blast. Tr. 191, 194. They had not been working on the 

1600 level during the blast. Tr. 193. 

IV. DISPOSITION

A. Citation No. 9646139

On January 12, 2022, Derouen issued 104(d)(1) Citation No. 9646139, which alleged:

All development, production, and bench rounds shall be initiated from the surface 

after all persons are out of the mine. The Production Foreman on duty on the day 

shift, initiated three explosive face rounds from the surface while four Miners 

were underground, unaccounted for. Their tags remained on the tag in/tag out 

board when the board was examined and deemed “mine clear” by the Production 

Foreman. The Production Foreman engaged in aggravated conduct constituting 

more than ordinary negligence in that he knew the requirements of the standard 
–8–

and still conducted blasting with four Miners underground. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

Ex. S-1-1; Tr. 35-36.

Derouen designated the citation as a significant and substantial violation of 30 C.F.R. § 

57.22601 that was reasonably likely to cause an injury that could reasonably be expected to be 

“fatal,” would affect four miners, and was caused by Respondent’s high negligence. Ex. S-1-1.

He also designated the citation as an unwarrantable failure. Ex. S-1-1. 

i. Fact of Violation

The parties do not dispute the material facts surrounding the violation. Jt. St. 13. 30 

C.F.R. § 57.22601(a) states that “[a]ll development, production, and bench rounds shall be 

initiated from the surface after all persons are out of the mine. Persons shall not enter the mine 

until ventilating air has passed over the blast area and through at least one atmospheric 

monitoring sensor.” Here, blasting occurred while there were still miners underground. Jt. Stip. 

8. Accordingly, the fact of violation is affirmed. 

ii. Gravity

Inspector Derouen designated the citation as significant and substantial and reasonably 

likely to cause an injury that could be reasonably expected to result in a fatal injury. Ex. S-1. He 

testified at hearing that he selected “reasonably likely” and “fatal” because miners exposed to the 

blast can incur fatal injuries from flyrock and other projectiles. Tr. 35-36, 38-39. Methane 

liberations are also unpredictable, and can cause secondary ignitions leading to secondary blasts, 

which can have a concussive effect through shock or sound waves potentially causing flyrock or 

pieces of salt that become projectiles and can affect the entire mine. Tr. 36-39. In the inspector’s 

determination, this violation rose to the level of significant and substantial (S & S). Tr. 47.

In order to establish that a violation of a mandatory safety standard is S&S, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) the 

violation was reasonably likely to cause the occurrence of the discrete safety hazard against 

which the standard is directed; (3) the occurrence of that hazard would be reasonably likely to 

cause an injury; and (4) there would be a reasonable likelihood that the injury in question would 

be of a reasonably serious nature. Peabody Midwest Mining, LLC, 42 FMSHRC 379, 383 (June 

2020). The Commission has explained that “the proper focus of the second step of the [S&S] 

test [is] the likelihood of the occurrence of the hazard the cited standard is designed to prevent.” 

Newtown Energy, Inc., 38 FMSHRC 2033, 2037 n.8 (Aug. 2016). 

Since a violation of a mandatory safety standard has occurred, my analysis turns to the 

second step which requires a finding that the violation is reasonably likely to cause the 

occurrence of a discrete safety hazard. Here, I credit the testimony and experience of the 

inspector and the special investigator regarding the unpredictability of methane liberations, 

secondary blasts and potential concussive effects which can result in flyrock, projectile salt 

fragments, fall of material and roof collapses all of which put the entire mine at risk. Fortunately,

there was no methane liberation as a result of this blast, but there is always potential for 
–9–

liberation and for a secondary blast which increases the area where a miner may encounter a 

hazard beyond just the primary blast area. The specific hazard in an underground gassy mine is 

the unpredictable occurrence of an explosion as well as the above noted after-effects of a blast. It 

is noteworthy that Norwood himself testified that they cannot blast while miners are 

underground due to the mine’s gassy nature, demonstrating a recognition on behalf of the 

operator of the risks associated with this act. The second step is satisfied. 

The third step examines whether, based on the particular facts of the violation, the 

occurrence of the hazard would be reasonably likely to result in an injury. The Respondent 

contends that the particular facts of this violation reveal that the miners were working half a mile 

away from the blast and that there were no methane liberations, leaving the Secretary unable to 

satisfy the third element. R. Br. 13. While this may be true, these facts were only discovered after 

the blast had occurred and the hazards had been terminated. At the time of the blast, the miners 

were unaccounted for and their whereabouts unknown. This is exacerbated by the fact that when 

Norwood conducted his sweep of the mine, he did not find the miners in their normal work area

where they would reasonably be expected to be found. I find it reasonably likely that four 

unaccounted-for miners were exposed to the hazards of an explosion; the repercussive impact of 

which would cause flyrock or salt projectiles, fall of roof materials or even collapse of roof for a 

period of fourteen minutes is reasonably likely to result in potentially fatal injury. In doing so, I 

conclude that the four unaccounted for miners were in fact exposed to the effects of a potentially 

fatal explosion because their location was unknown during those fourteen minutes. 

Finally, the fourth element requires that the Secretary must prove a reasonably likelihood 

that the resulting injury would be of a reasonably serious nature. An injury of a reasonably 

serious nature does not require a specific type of injury. S & S Dredging Co., 35 FMSHRC 1979, 

1981-82 (July 2013) (holding the ALJ erred in requiring the Secretary to demonstrate an injury 

that would result in hospitalization, surgery, or a long period of recuperation to satisfy 

the fourth Mathies element). I determine that given the hazards noted above the injuries expected 

to result from being underground during a blast are reasonably likely to be of a reasonably 

serious nature. 

I affirm that this violation is significant and substantial and is reasonably likely to cause 

fatal injuries to four miners. 

iii. Negligence and Unwarrantable Failure

Under the Mine Act, operators are held to a high standard of care, and “must be on the 

alert for conditions and practices in the mine that affect the safety or health of miners and to take 

steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d). 

MSHA’s regulations define reckless disregard as conduct which exhibits the absence of the 

slightest degree of care, high negligence as actual or constructive knowledge of the violative 

condition without mitigating circumstances; moderate negligence as actual or constructive 

knowledge of the violative condition with mitigating circumstances; and low negligence as 

actual or constructive knowledge of the violative condition with considerable mitigating 

circumstances. 30 C.F.R. § 100.3: Table X.
–10–

More serious consequences are imposed for violations constituting the unwarrantable 

failure of the operator to comply with mandatory health and safety standards. The term 

“unwarrantable failure” arises in section 104(d) of the Mine Act, describing serious misconduct 

that triggers the issuance of a citation under that section. 30 U.S.C. § 814(d). The Commission 

has defined unwarrantable failure as “aggravated conduct constituting more than ordinary 

negligence.” Emery Mining Corporation, 9 FMSHRC 1997, 2001 (Dec. 1987). The conduct that 

qualifies as unwarrantable failure is often characterized as “reckless disregard,” “intentional 

misconduct,” “indifference,” or a “serious lack of reasonable care.” Martin County Coal Corp., 

28 FMSHRC 247 (May 2006) (citing Emery, 9 FMSHRC at 2001). The Commission has 

recognized the close relationship between a finding of high negligence and a finding of 

unwarrantable failure. See Dominion Coal Corp., 35 FMSHRC 1652, 1663 (June 2013) 

(ALJ), citing San Juan Coal Co., 29 FMSHRC 125, 139 (Mar. 2007).

While these descriptors are helpful guideposts, the inquiry of whether conduct is 

“aggravated” is ultimately a holistic analysis of both aggravating and mitigating circumstances. 

Such circumstances include (1) the extent of the violative condition, (2) the length of time it has 

existed, (3) whether the violation posed a high risk of danger, (4) whether the violation was 

obvious, (5) the operator's knowledge of the existence of the violation, (6) the operator's efforts 

in abating the violative condition, and (7) whether the operator had been placed on notice that 

greater efforts were necessary for compliance. Brody Mining, LLC, 37 FMSHRC 1687, 1691 

(Aug. 2015).

The inspector designated the violation as high negligence and as an unwarrantable failure 

to comply with the mandatory standard.

a. Extent of the Violative Condition 

The first factor to consider is the extent of the violative condition. The extensiveness of a 

violation is determined by examining “the extent of the affected area as it existed at the time” 

and “the number of persons affected by the violation.” Dawes Rigging & Crane Rental, 36 

FMSHRC 3075, 3079-80 (Dec. 2014).

There were four unaccounted for miners underground during the duration of the blast for 

approximately fourteen to fifteen minutes. The Respondent contends that Norwood’s actions to 

track down a Morton Salt employee who was still tagged in should be considered as a mitigating 

factor. While I acknowledge that this reduced the number of miners who were exposed to the 

hazardous condition from five to four, it did not lessen the risks to the four miners who were still 

underground and unprotected. Thus, I do not consider this to be a mitigating factor.

b. Length of Time

The Commission has highlighted the duration of the violative condition as a “necessary 

element” of the unwarrantable failure analysis. IO Coal Co., 31 FMSHRC 1346, 1352 (Dec. 

2009). A duration of seconds or minutes often mitigates the severity of the violation. See, e.g., 

Dawes Rigging, 36 FMSHRC at 3080. However, when a hazardous condition is “readily 

distinguishable from other types of danger due to [its] high degree of danger [and] its obvious 

nature,” the brief duration of the hazard will not militate against a finding 
–11–

of unwarrantable failure. Knight Hawk Coal, LLC, 38 FMSHRC 2361 (Sep. 2016) 

(quoting Midwest Material Co., 19 FMSHRC 30, 36 (Jan. 1997)) (internal quotations omitted).

The length of time that this violation existed was fourteen to fifteen minutes. While this 

may be viewed as a relatively short period of time this has to be balanced against the potentially 

fatal exposure to a blast, secondary explosion, exposure to flyrock or salt projectiles or roof 

collapse all of which are reasonably likely to cause a fatality. For this reason, the length of time 

of exposure in this case cannot be a mitigating factor. 

c. Degree of Danger

The Commission has found that a high degree of danger presented by a violation 

constitutes an aggravating factor in support of a finding of unwarrantable failure. IO Coal, 31 

FMSHRC at 1355-56.

Here, the degree of danger was high. The inspector and the special investigator both 

testified regarding the multitude of hazards that exist from blasting while miners are 

underground, including fatal injuries from rockfalls and being hit by projectiles. Because the four 

contract miners were unaccounted for, the degree of danger is an aggravating factor. 

d. Obviousness of the Violation

The obviousness of a violation can be an aggravating factor in the unwarrantable failure 

analysis. The contractor tags on the tag board were clearly in plain sight. Both the tags and the 

board have high contrast, which made them easy to identify visually. Most importantly, 

Norwood looked at the board not once but two times before proceeding with blasting. I find that 

this violation was obvious and as such, an aggravating factor. 

e. Operator’s Knowledge of the Violative Condition

An operator's knowledge of a violation is an important factor in unwarrantable failure 

analysis and is a requirement for a finding of high negligence under 30 C.F.R. § 100.3. Maryan 

Mining, LLC, 37 FMSHRC 1715, 1723 (Aug. 2015) (ALJ). Where an agent of an operator has 

knowledge or should have known of a safety violation, such knowledge should be attributed to 

the operator. Martin Marietta Aggregates, 22 FMSHRC 633, 637 (May 2000). The knowledge or 

negligence of an agent may be imputed to the operator. Id.

I find that the operator had knowledge of the violation. Quinn Norwood was the interim 

production foreman and was responsible for ensuring that the mine was clear and that no miner 

remained underground before blasting. Norwood admitted at hearing that he was aware that there 

were contract miners working at Weeks Island underground that day. While I credit his 

testimony that he would not have intentionally proceeded with blasting had he seen the 

contractor tags on the tag board, this does not excuse his oversight. This is exacerbated by the 

fact that when he did his sweep, he did not find the contractors where he expected them. I find 

that an experienced miner such as Norwood would have reasonably concluded that he needed to 

determine the whereabouts of the miners before blasting occurred. 
–12–

Additionally, there is evidence that suggests the powderman, who is also required to 

check the tag board according to the SOP, did not check the board. Despite Norwood’s testimony 

that the powderman told him that he checked the board, and the mine was clear, the powderman 

did not appear on the video recording that was viewed by the inspector. The Respondent as the 

operator should have known through their assigned agent, Norwood and employee powderman,

that there were miners tagged-in resulting in a serious lack of reasonable care. 

f. Abatement Efforts

Another relevant factor is whether the operator took action to abate the violative 

condition before the issuance of the citation or order. When an operator has been put on notice of 

a problem, “the level of priority that the operator places on addressing the problem is a factor 

properly considered in the unwarrantable failure analysis.” Jim Walter Resources, Inc., 19 

FMSHRC 480, 487 (Mar. 1997).

While I credit Respondent for their efforts to train miners on their SOPs prohibiting 

blasting while miners are underground, that training did not prove effective in this instance 

where Norwood not once, but two times failed to see the contract miner tags on the board. This is 

exacerbated by the fact that he was aware the miners were not where he expected them to be 

when he did his pre-blast sweep of the mine. In addition, the powderman failed to follow the 

training as well in not checking the board as the SOPs required.

g. Notice to the Operator that Greater Efforts were Necessary

Finally, when an operator has previously committed similar violations, those violations 

are relevant to an unwarrantable failure determination to the extent that they give the operator 

notice that greater efforts are necessary for compliance with a safety standard. Brody Mining, 37 

FMSHRC at 1691.

This citation is the first time Morton Salt has violated this particular standard. There is no 

evidence that Morton Salt was placed on notice that greater efforts were necessary for 

compliance with the standard. 

h. Conclusion

Based on these factors, particularly the obviousness of the condition and the degree of 

danger, I affirm the inspector’s designations that the violation was an unwarrantable failure and 

high negligence. Having “good reason” to believe that underground miners would not be 

impacted by a blast is not a substitute for verifying that they are no longer underground and are 

on the surface like the standard requires. Norwood examined the tag board twice before going 

forward with blasting. Missing the four contractor tags once constitutes high negligence. Missing 

the four contractor tags a second time is an unwarrantable failure and clearly demonstrates a 

serious lack of reasonable care. 
–13–

I uphold the inspector’s determination that the violation was a result of the operator’s 

high negligence and unwarrantable failure. 

B. Individual Liability 

The Secretary also seeks to impose personal liability against Quinn Norwood for acting as an 

agent to operator Morton Salt. Section 110(c) liability for an agent is defined as: 

Whenever a corporate operator violates a mandatory health or safety standard or 

knowingly violates or fails or refuses to comply with any order issued under this 

Act . . . any director, officer, or agent of such corporation who knowingly 

authorized, ordered, or carried out such violation, failure, or refusal shall be 

subject to the same civil penalties, fines, and imprisonment that may be imposed 

upon a person under subsections (a) and (d). 

30 U.S.C. § 820(c). “Knowingly” requires a finding that the agent knew or had reason to know 

of the violative condition. Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other 

grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman 

United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997). A knowing 

violation occurs when an individual “in a position to protect employee safety and health fails to 

act on the basis of information that gives him knowledge or reason to know of the existence of a 

violative condition.” Kenny Richardson, 3 FMSHRC at 16.

To establish individual liability, there is a three-part test: (1) that the agent knew or had 

reason to know about the violative condition; (2) that the agent was in a position to remedy the 

condition; and (3) that the agent failed to act to correct the condition. Peabody Midwest Mining, 

LLC, 44 FMSHRC at 526-27, 259. The agent's conduct or failure to act must be 

“aggravated.” Id. at 527. Aggravated conduct encompasses more than just ordinary negligence. 

Quinn Norwood was acting as the production foreman on the day of the incident. He had 

received all the proper training in order to perform the production foreman duties properly. The 

SOP implemented by the operator clearly states that the production foreman is responsible for 

ensuring that no one is underground when preparing to blast. It is also not disputed that Norwood 

was in a position to remedy the condition, and in fact did so for one Morton Salt employee who 

was still tagged in. He failed, however, to notice the four contractor tags remaining on the board 

indicating that four miners were still underground and proceeded to initiate the blast. This 

satisfies all three elements to establish individual liability. 

Concerning Norwood’s conduct, I find that it was aggravated. As the production 

foreman, Norwood had reason to know about the violative condition. He checked the tag board 

twice before proceeding with blasting, and somehow did not see the dark-colored tags against the 

board either of those times. Norwood testified that he knew there were contractors working that 

day and that he was aware they were on the 1600 level. However, he also testified that when he 

swept the mine prior to blasting, he did not find the four contractors where he expected them to 

be. An experienced blaster who participated in hundreds of blasts should know and follow the 

procedures in the SOP to achieve compliance with the standard. Further, the inspector’s 

investigation revealed that Norwood stated that he was in a rush and another anonymous miner 
–14–

noted that Norwood appeared to be in a hurry. While Norwood disputed this in his testimony, I 

credit the inspector’s contemporaneous notes and Norwood’s own admitted failure to see the 

contractor tags to support the finding that he was in a hurry.

Accordingly, I find that Norwood was personally liable as an agent of operator Morton 

Salt for the violation. 

V. PENALTY

It is well established that Commission administrative law judges have the authority to 

assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5 

FMSHRC 287, 291 (Mar. 1983). The Act requires that in assessing civil monetary penalties, the 

Commission ALJ shall consider the six statutory penalty criteria:

(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 of the person charged in attempting to 

achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

For Citation No. 9646139, the Secretary proposed a regularly assessed penalty of 

$12,754.00. Morton Salt does not have a prior history of violating this standard. The parties 

stipulated that the penalty will not affect Morton Salt’s ability to continue in business. Jt. Stip. 6

As discussed above, I find that this is an S&S violation that is reasonably likely to result in fatal 

injuries to four miners as a result of Morton Salt’s high negligence and unwarrantable failure. 

Finally, I find that Morton Salt demonstrated good faith in abating the citation. In light of these 

considerations, I find that the proposed penalty of $12,754.00 is appropriate. 

Quinn Norwood, as the agent named in this matter, has been assessed a proposed penalty 

of $4,600 for his actions with respect to Citation No. 9646139. The same penalty criteria apply to 

Norwood as an agent. Norwood does not have a prior history of violating this standard. Concerns 

regarding his ability to pay the penalty were not raised. The penalty reflects the gravity and the 

negligence of the violation, and I find that the proposed penalty of $4,600 is appropriate. 
–15– 

VI. ORDER

The Secretary vacated Citation No. 9646138 prior to the hearing. The Secretary’s 

discretion to vacate a citation or order is not subject to review. See, e.g., RBK Constr. Inc., 15 

FMSHRC 2099 (Oct. 1993). It is ORDERED that Citation No. 9646138 is VACATED. 

Further, it is ORDERED that Citation No. 9646139 is AFFIRMED as issued. Morton 

Salt, Inc., is ORDERED to pay the Secretary the total sum of $12,754.00 and Quinn Norwood is 

ORDERED to pay $4,600.00 within 40 days of this order.2

David P. Simonton 

Administrative Law Judge

Distribution: (Electronic and Certified mail) 

Rebecca W. Mullins, U.S. Department of Labor, Office of the Solicitor, 201 12th Street South, 

Suite 401, Arlington, VA 22202, mullins.rebecca.w@dol.gov

Donna Vetrano Pryor, Husch Blackwell LLP, 1801 Wewatta Street, Suite 1000, Denver, CO 

80202, donna.pryor@huschblackwell.com

2 Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the 

Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health Administration 

P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. Numbers.