**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

 
| 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 |
|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**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 

 
    - 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. 

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.

 
    - STIPULATIONS OF FACT

** **

At hearing, the parties agreed tothe following stipulations:

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

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

 
    - 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”).

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

 
    - 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.

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

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

 
    - 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.

 
    - 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.

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

 
    - Mr. Derouen viewed this video in the presence of the     following Morton Salt personnel: Landon Olivier, Ryan McBride, and Rob     Freeman.

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

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

 

 

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. 

 

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. 

 

            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. 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 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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.

 

 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 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. 

 

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. 

 

 

 

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 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. 

 

 

 

 

 

 

 

 

 

 

 
    - 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]

 

 

 

 

/s/David P. Simonton

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

 

----

[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.

[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.