An administrative law judge cut an MSHA fine by nearly 30 percent after supporting an inspector’s enforcement actions, but rejecting MSHA’s proposed maximum fine because the agency did not explain why the penalty was so high.
MSHA took enforcement action after a massive highwall failure occurred in October 2011 at Tuscaloosa Resources’ Highway 59 No. 1 surface coal mine in Alabama. The dislodged material pushed a haul truck over a bench, severely injuring the driver.
The agency issued a citation for the alleged failure to follow the ground control plan and an order for allegedly failing to conduct adequate on-shift examinations. The violations were categorized as aggravated conduct beyond ordinary negligence and likely to lead to serious injury. MSHA applied its special assessment procedures to increase the per violation fine to the $70,000 maximum allowed.
The highwall failure followed a similar failure in the same general area the previous January. In that incident, dislodged material flowed over the bench and moved a backhoe on the bench below 75 feet. In addition, the toe of the highwall had given way several times between the two incidents, resulting in material nearly overtopping a berm the operator had built as a barricade near the base of the highwall and causing employees to be evacuated temporarily. Evidence at the hearing revealed another significant slide had occurred between the two reported slides as well.
Judge Simonton upheld both violations as written. He supported the citation because he found the operator had failed to take appropriate corrective action after the initial slide. He criticized the berm as “an inherently inadequate control method” and the operator’s belief it was sufficient as “not objectively reasonable.”
Likewise, he approved the order, pointing to photo evidence after the October slide showing unsafe conditions existed on the highwall. Finding these hazards to be “obvious,” Simonton said, “By failing to record the seepage, Respondent failed to maintain an inspection system that allowed its employees to gauge and track the severity of ongoing seepage and erosion.” He also noted the October slide had occurred in the same general area as the January slide despite the company’s assurance after the first incident that it would mine elsewhere.
However, in a decision issued June 10, Simonton reduced MSHA’s proposed $140,000 penalty to $100,000 after stating MSHA had not provided substantive guidance to support the higher amount. The mine suspended production in November 2011 and is on temporary idle status.