Eagle Wings Construction, LLC

Plain-English summary

MSHA cited two separate unguarded conveyor tail pulleys at Eagle Wings Construction's newly relocated sand and gravel plant. Judge Michael E. Zielinski found two distinct violations of 30 C.F.R. § 56.14107(a), not one duplicative violation, because the pulleys belonged to separate conveyors. He found both violations significant and substantial because miners adjusting the new plant were likely to work near the highly dangerous moving parts. The mine foreman knew guards were required and ran the mine, so his high negligence was imputed to the operator and supported unwarrantable-failure findings. The judge would have assessed $1,000 per violation under the ordinary penalty factors but imposed the statutory minimum of $2,000 each, for a total of $4,000.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.14107(a)
• Outcome: Both guarding violations were affirmed as significant and substantial and unwarrantable, with total penalties of $4,000.
• Key point: A supervisor's knowledge of obvious unguarded pulleys is imputed to the operator, and section 104(d)(1) violations carry a $2,000 statutory minimum penalty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Ave., Suite 520N

Washington, DC 20004-1710

Telephone No.: 202-434-9900

Telecopier No.: 202-434-9954

October 22, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner  

v.

EAGLE WINGS CONSTRUCTION, LLC.,

Respondent 

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CIVIL PENALTY PROCEEDING

Docket No. CENT 2010-1003-M

A.C. No. 23-02341-222957 

MINE: Doniphan Ready Mix

DECISION

Appearances:  Susan J. Willer, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas
City, Missouri, on behalf of the Secretary of Labor;

Elton G. Bates, Doniphan, Missouri, for Eagle Wings Construction, LLC.

Before:            Judge Zielinski

This case is before me on a Petition for Assessment of Penalty filed by the Secretary of
Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The petition alleges that Eagle Wings Construction, LLC, is liable for two violations
of the Secretary’s Safety and Health Standards for Surface Metal and Nonmetal Mines,

and
proposes the imposition of civil penalties in the total amount of $4,000.00. A hearing was held
in St. Louis, Missouri, and the parties filed post-hearing briefs following receipt of the transcript.
For the reasons that follow, I find that Eagle Wings committed the violations, and impose civil
penalties in the total amount of $4,000.00.

Findings of Fact - Conclusions of Law

Eagle Wings Construction, LLC, has owned and operated a surface sand and gravel mine
known as Doniphan Ready Mix since September 14, 2006. Elton Bates is the self-employed
managing member and owner of Eagle Wings. At all pertinent times, the mine was located in
Ripley County, Missouri, adjacent to a ready mix plant also owned and operated by Eagle Wings.
The ready mix plant is not a mine and is not under MSHA’s jurisdiction. Immediately prior to
the April 2010 inspection that prompted this proceeding, the sand and gravel operation had been
moved from a previous location. The move occurred from November 2009 to March 2010. At
the new location, the screens, conveyors and other associated machinery were mounted on steel
structural members attached to concrete piers. Respondent introduced photographs of the plant.
Ex. R-16. The piers were approximately 36 inches in diameter and rose from a concrete pad. On
March 17, 2010, as the installation was nearing completion, Bates called the local MSHA district
field office in an attempt to schedule a compliance assistant visit (“CAV”). Tr. 175; Ex-R-5.
When able to do so, MSHA will visit a facility about to go into production and conduct a CAV.
Rather than issue citations for which civil penalties would be assessed, the operator would be
notified of potential violations and afforded an opportunity to correct hazardous conditions
before beginning production. Robert Seelke, MSHA’s supervisory inspector at the Rolla-South
field office, acknowledged receipt of Bates’ request, but explained that the press of other events
precluded returning his call or conducting a CAV.

The mine began to operate in late March 2010. Three persons typically worked at the
mine. Jason Moreland conducted a workplace examination at the beginning of the day, greased
bearings, and started the plant. Thereafter, he operated a loader and fed material into the plant.
Two other miners were involved in removing raw material from a pit located some distance from
the plant. One ran an excavator, and the other operated a dump truck, transporting material from
the pit to a location about 50 yards from the plant. Jeff Friday operated the ready-mix facility.
However, on days when Moreland was not present, he performed the functions that Moreland
typically performed.

On April 22, 2010, Allen Govero, an MSHA inspector, inspected the sand and gravel
facility. He determined that certain conditions violated mandatory standards and cited the
violations. Eagle Wings timely contested the civil penalties assessed for the two violations at
issue here.

Citation No. 6565367

Citation No. 6565367 was issued at 10:51 a.m., on April 22, 2010, pursuant to section
104(d)(1) of the Act.

It alleges a violation of 30 C.F.R. § 56.14107(a), which requires that
“Moving machine parts shall be guarded to protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar
moving parts that can cause injury.” The violation was described in the “Condition and Practice”
section of the citation as follows:

The tail pulley section of the Concrete Rock Stacker conveyor was
not provided with guarding of any kind. The tail pulley is about 69
inches above a concrete slab that supports the conveyor and the
shaker screens. About 29 inches from this tail pulley is also a
separate conveyor tail pulley on the Pea Gravel Belt line also un-guarded. One miner accesses a stair case about 20 to 25 yards
away to start or stop the plant components from an elevated motor
control room. The Mine Foreman (Jason Moreland) stated when
questioned that he was aware that the tailpulleys had not yet been
guarded and was aware of the standard’s requirement. When
ask[ed] if the Owner (Elton Bates) was also aware of this condition
Jason said yes. The plant has been in production since about
March 29, 2010. Normally two other miners work on this mine
site. This creates a hazard. Foreman Moreland engaged in
aggravated conduct constituting more than ordinary negligence in
that he was aware the tail pulley was not guarded. This violation is
an unwarrantable failure to comply with a mandatory standard.

Ex. G-1.

Govero determined that it was reasonably likely that the violation would result in a
permanently disabling injury, that the violation was significant and substantial (“S&S”), that
three persons were affected, that the operator’s negligence was high, and that the violation was
the result of the operator’s unwarrantable failure to comply with the mandatory standard. A civil
penalty in the amount of $2,000.00 was assessed for this violation.

Order No. 6565368

Order No. 6565368 was issued at 10:56 a.m., on April 22, 2010, pursuant to section
104(d)(1) of the Act. It also alleged a S&S and unwarrantable failure violation of 30 C.F.R.

§ 56.14107(a), and in all pertinent respects repeats that same allegations as in Citation No.
6565367, except that the condition cited was the missing guard on the Pea Gravel Belt. Ex. G-4.

Guvero made the same special findings as in the citation, except that he determined that
the violation was alleged to have been the result of the operator’s reckless disregard of the
standard’s requirements. A civil penalty, in the amount of $2,000.00 was assessed for this
violation.

The Violations

The finned tail pulleys on the two conveyors were not guarded. Moreland admitted to
Govero that he knew the pulleys had to be guarded, and explained that he had simply not gotten
around to installing guards. Tr. 23-25. The pulleys run at relatively high speeds, and the pinch
points created by the belts’ engagement with the fins of the pulleys, were approximately 60
inches above the concrete pad forming the foundation of the plant. Govero measured the
distance from the pad to the shaft of the pulleys at 69 inches. Tr. 92. The pinch points were
approximately 9 inches lower, where the bottom-returning belt began to contact the spinning
pulley. The pulleys were moving machine parts and are specifically itemized in the standard.
Miners could walk in the area, which was not barricaded or isolated in any way. Entanglement
with one of the pulleys would result in a severe, possibly fatal, injury. The standard specifies
that guards are not required where the exposed moving machine parts are at least 7 feet away
from walking or working surfaces. These pulleys were well within the 7-foot distance. The
conditions cited in the citation and order clearly violated the standard.

Eagle Wings questioned whether the two conditions should have been considered to be
one violation because they were only 29 inches apart. MSHA’s Program Policy Manual
(“PPM”) provides that multiple violations of the same standard on the same piece of equipment
or in the same area of a mine should be treated as one violation. PPM, Vol. I, section 104 (1996)
Ex. R-3. Govero explained that, since the two conveyors were separate pieces of equipment, two
violations were appropriately cited. Tr. 86, 194; Ex. R-3. The nature of the violations was not
related to an area of the mine, and, consistent with the example in the PPM, it appears that the
separate citing of the conditions was proper under MSHA’s procedures. The violations are not
duplicative, and Respondent points to no other legal impediment to their having been cited
separately.

Significant and Substantial

The Commission recently reviewed and reaffirmed the familiar Mathies

framework for
determining whether a violation is S&S. As explained in Cumberland Coal Res., 33 FMSHRC
2357, 2363-65 (Oct. 2011):

The S&S terminology is taken from section 104(d) of the
Mine Act, 30 U.S.C. § 814(d), and refers to more serious
violations. A violation is S&S if, based on the particular facts
surrounding the violation, there exists a reasonable likelihood that
the hazard contributed to will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the
Commission further explained:

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.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v.
MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v.
Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria). An evaluation of the reasonable likelihood of
injury should be made assuming continued normal mining
operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836
(Aug. 1984).

. . . .

. . . .

The Commission recently discussed the third element of the
Mathies test in Musser Engineering, Inc. and PBS Coals, Inc.,
32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”) (affirming an
S&S violation for using an inaccurate mine map). The
Commission held that the “test under the third element is whether
there is a reasonable likelihood that the hazard contributed to by
the violation, i.e., [in that case] the danger of breakthrough and
resulting inundation, will cause injury.” Id. at 1281. Importantly,
we clarified that the “Secretary need not prove a reasonable
likelihood that the violation itself will cause injury.” Id. The
Commission also emphasized the well-established precedent 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)).

The fact of the violations have been established. The unguarded tail pulleys contributed
to discrete safety hazards, entanglement of a miner or a miner’s clothing in the spinning pulleys.

Any injury resulting from such entanglement would be serious. Whether the violations were
S&S turns, as it often does, on whether the hazards were reasonably likely to result in an injury
causing event.

In general, the likelihood of a safety hazard resulting in a reasonably serious injury is
largely dependent upon the nature of the hazard and the degree of miners’ exposure to it. A
highly dangerous condition could present a high probability of a fatal or permanently disabling
injury if even one miner encountered it. A more benign condition might be safely encountered
by a miner taking appropriate precautions, or it might produce a relatively minor injury to one
less cautious. Here, the unguarded tail pulleys presented highly dangerous conditions that would
almost certainly have inflicted very serious, or even fatal, injuries on any miner that encountered
them.

The conditions had existed for approximately one month at the time of the inspection, by
which time the plant was being operated on a more-or-less continuous basis. Moreland told
Govero, on April 22, that they had been operating about one month. Tr. 21. Govero, who had 20
years of mining experience, including work on conveyors, and 12 years of experience as an
inspector, observed stockpiles of material that were sizable, indicating that the mine had been
producing material and had not been operated only to test and adjust components. Tr. 51, 80, 97.
Bates stated that the plant produced material as mechanical breakdowns permitted. Tr. 134.
Govero did not make any assumptions about when the hazards would have been eliminated under
continued normal mining operations. Tr. 204-05. His S&S analysis was based on an
understanding that they would have existed indefinitely. Tr. 198-99. From the evidence of
record, there were no plans to fabricate and install guards on the tail pulleys. As Bates’ health
permitted, he would most likely have visited the plant reasonably soon after the inspection was
conducted, and would have assured that the pulleys were guarded. Tr. 182.

During normal mining operations, it is unlikely that a miner would have traveled in close
proximity to the tail pulleys. Govero determined that three persons were affected by the
violations.

However, while three persons worked at the plant, only one of them would have
potentially been in the vicinity of the pulleys. The excavator operator worked in the pit, some
distance removed from the plant, and the truck driver moved material from the pit to a stockpile
about 50 yards from the plant. Tr. 151. Neither of those persons was realistically exposed to the
hazards. The plant operator, Moreland, greased pulleys and checked the area before starting the
plant from the control room, which he accessed by climbing stairs some 20 yards away from the
pulleys. He then would spend the vast majority of his time operating a loader, feeding the plant
from the stockpile. The surface of the concrete pad was accessible to persons who might want to
walk in the area of the pulleys. However, it would have been unlikely that anyone would have
had occasion to travel in the area. Moreover, when in operation, water and small pieces of
material showered down, and it is unlikely that anyone would have chosen to walk in the area
while the plant was running unless compelled to do so.

However, the area was most likely traveled much more frequently during the subject time
period. As Friday explained, there were ongoing efforts to adjust conveyors, hoppers, and other
components of the newly set up plant. Tr. 147, 164-66. In order to determine whether
components are properly aligned, material must be run through the system. Persons must get
relatively close to the machinery in order to assess whether it is working properly, or, if not, what
adjustments might be needed. Tr. 200-02, 211-13. Actual adjustments were performed after the
machinery had been shut down. However, the process of making adjustments apparently
continued through the time of the inspection. Consequently, miners, most likely Moreland and
Friday, would have been exposed to the hazards with some frequency. While they would not
have knowingly encountered them, they may have inadvertantly contacted one of the pulleys and
suffered an injury.

Considering the length of time that the hazards existed, and would have continued to exist
under continued normal mining operations, the fact that they posed a high degree of danger to
miners, and the fact that miners were most likely in the area with some frequency while the
pulleys were in operation, I find that the violations were S&S.

Unwarrantable Failure - Negligence

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated
the law applicable to determining whether a violation is the result of an unwarrantable failure:

The unwarrantable failure terminology is taken from
section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more
serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the
Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001.
Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct," "indifference," or a "serious
lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh
Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”); see also
Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir.
1995)] (approving Commission's unwarrantable failure test).

Whether conduct is “aggravated” in the context of an
unwarrantable failure analysis is determined by looking at all the
facts and circumstances of each case to see if any aggravating
factors exist, such as the length of time that the violation has
existed, the extent of the violative condition, whether the operator
has been placed on notice that greater efforts are necessary for
compliance, the operator’s efforts in abating the violative
condition, whether the violation is obvious or poses a high degree
of danger, and the operator’s knowledge of the existence of the
violation. See Consolidation Coal Co., 22 FMSHRC 340, 353
(Mar. 2000) . . . ; Cyprus Emerald Res. Corp., 20 FMSHRC 790,
813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir.
1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997);
Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992);
BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992);
Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of
the relevant facts and circumstances of each case must be
examined to determine if an actor’s conduct is aggravated, or
whether mitigating circumstances exist. Consol, 22 FMSHRC at

353. Because supervisors are held to a high standard of care,
     another important factor supporting an unwarrantable failure
     determination is the involvement of a supervisor in the violation.
     REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

The Secretary argues that the violations were the result of Eagle Wings’ unwarrantable
failure because Moreland was an agent of Eagle Wings, and, as the miner in charge of the plant,
was well aware of the violative conditions and took no steps to remedy the hazards.

Operator’s knowledge

Bates was dealing with serious health issues during the time that the plant was being put
back into operation. Tr. 132-33; Ex. R- 4. He had not been at the facility for several weeks
before the inspection, and was not present during the inspection. Moreland, who was operating
the plant, certainly knew of the violative conditions, and had not taken any steps to address them.
Whether Moreland’s knowledge and inaction are imputable to Eagle Wings depends upon
whether or not he was its agent.

As stated in Nelson Quarries, Inc., 31 FMSHRC 318, 328-29 (March 2009):

Section 3(e) of the Mine Act defines an “agent” as “any
person charged with responsibility for the operation of all or part of
a . . . mine or the supervision of the miners in a . . . mine. 30
U.S.C. § 802(e). The Commission has recognized that the
negligence of an operator’s “agent” is imputable to the operator for
penalty assessment and unwarrantable failure purposes. Whayne
Supply Co., 19 FMSHRC 447, 451 (Mar. 1997); Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194-97 (Feb. 1991)
(“R&P”); Southern Ohio Coal Co., 4 FMSHRC 1459, 1463-64
(Aug. 1982) (“SOCCO”). In contrast, the negligence of a rank-and-file miner is not imputable to the operator for the purposes of
penalty assessment or unwarrantable failure determinations.
Whayne, 19 FMSHRC at 451, 453; Fort Scott Fertilizer-Cullor,
Inc., 17 FMSHRC 1112, 1116 (July 1995); SOCCO, 4 FMSHRC
at 1463-64.

In considering whether an employee is an operator’s agent,
the Commission has “relied not upon the job title or the
qualifications of the miner, but upon his function, [and whether it]
was crucial to the mine’s operation and involved a level of
responsibility normally delegated to management personnel.”
Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 1560 (Sept.
1996) (quoting U.S. Coal Inc., 17 FMSHRC 1684, 1688 (Oct.
1995)) (alteration in original). We consider factors such as the
ability of the employee to direct the workforce, whether the
employee holds himself out as a person with supervisory
responsibilities and is so regarded by other miners, and whether the
actions of the employee in directing the workforce have an impact
on health and safety at the mine. Ambrosia, 18 FMSHRC at 1553-54, 1560-61; Sec’y of Labor on behalf of Hyles v. All American
Asphalt, 21 FMSHRC 119, 130 (Feb. 1999) (holding that leadmen
who acted in a supervisory capacity and were in a position to affect
safety were agents of the operator to whom employees would
logically voice their complaints). We are mindful that the term,
“agent,” must be interpreted in light of the overall purpose of the
Mine Act to protect the health and safety of miners. See RNS
Servs., Inc., v Sec’y of Labor, 115 F.3d 182, 187 (3rd Cir. 1997)
(Construing Mine Act provision broadly to effectuate statutory
purpose of protecting miner safety); Rock of Ages Corp. v. Sec’y of
Labor, 170 F.3d 148, 155 (2d Cir. 1999) (same).

Bates confirmed that Moreland was “in charge” of and “ran the mine.” Tr 133-34. He
was “actually the operator of the mine,” and on a typical day, started it, operated the loader to
feed the plant, stopped the plant for lunch, re-started it and shut it down at the end of the day.

Tr. 133-34. He would have conducted daily workplace exams, and greased the equipment,
before starting the plant at the beginning of the day. Tr. 140. During the month that the mine
operated prior to the inspection, it was producing product, “as mechanical failures would
permit.” Tr. 134. Although the duties of the three miners that worked at the plant were
somewhat fixed, Moreland apparently was responsible for directing the work force and use of
equipment as necessary. He accompanied Govero, represented the mine during the safety
inspection, and was responsible for abatement of the violations.

In carrying out required examination duties for an operator, an examiner may be
appropriately viewed as being charged with responsibility for the operation of part of a mine.
R&P, 13 FMSHRC at 194; see also Pocahontas Fuel Co. v. Andrus, 590 F.2d 95 (4th Cir. 1979)
(holding that preshift examiner’s knowledge was imputable to the operator for unwarrantable
failure purposes under principles of respondeat superior); Ambrosia, 18 FMSHRC at 1561
(finding relevant that employee made required daily examinations and entered findings in an
examination book).

I find that Moreland was an agent of Eagle Wings, and that his negligence, which I find
to have been high with respect to each violation, is imputable to Respondent.

Obviousness -Danger to miners

The violations were obvious. They also posed a high degree of danger to miners.

Length of time violations existed

The conditions had existed for approximately one month, while the plant was in
operation. While it was not operated continuously every work day, I find that the plant was
operated on a more-or-less continuous basis for one month prior to the inspection. The
conditions would have continued to exist for some period of time under continued normal mining
operations. From the evidence of record, there were no plans to fabricate and install guards on
the tail pulleys. As Bates’ health permitted, he would most likely have visited the plant
reasonably soon after the inspection was conducted, and would have assured that the pulleys
were guarded.

Extensiveness - Notice of need for additional compliance efforts - Abatement efforts

The violations were not extensive and there is no indication that Eagle Wings was on
notice of a need for greater efforts to comply with the standard. The parties stipulated that
Respondent demonstrated good faith in promptly abating the violations.

Conclusion

The most significant factors weighing in favor of a finding of unwarrantable failure are
that Respondent’s agent knew of the violative conditions, but had taken no affirmative steps to
correct them. The conditions were obvious and posed a high degree of danger to miners. They
had been allowed to exist for one month, and would have continued to exist for some time had
the inspection not occurred. On the facts of this case, extensiveness is essentially a neutral
factor. Weighing slightly against a finding of unwarrantable failure is the fact that Respondent
had not been put on notice of a need for greater compliance efforts, and that it had demonstrated
good faith in abating the violations.

Based upon the foregoing, and considering all the pertinent factors, I find that the
violations were the result of Eagle Wings’ unwarrantable failures to comply with the standard,
and that its negligence was high. This finding is based upon Moreland’s actions in failing to
guard the pulleys. There is no credible evidence that Bates had any knowledge of the conditions.
If he had been physically able to more closely supervise the set-up of the plant at the new
location, it is unlikely that the conditions would have been allowed to exist.

The Appropriate Civil Penalties

Section 110(i) of the Act provides, that in assessing civil penalties, the Commission must
consider the operator’s history of previous violations, the appropriateness of the penalty to the
size of the business of the operator charged, whether the operator was negligent, the effect on the
operator’s ability to continue in business, the gravity of the violation, and 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). The determination of the proper civil penalty is committed to the
Administrative Law Judge’s discretion, which is bounded by the statutory criteria of section
110(i) of the Mine Act as well as the deterrent purpose of the Mine Act’s penalty assessment
scheme. Mize Granite Quarries, Inc., 34 FMSHRC ___ (Aug. 7, 2012).

The penalties assessed by the Secretary for the violations at issue were minimum
penalties specified in the Mine Act. In 2006, following disasters that resulted in the deaths of
numerous miners, Congress passed the Mine Improvement and New Emergency Response Act
(“MINER Act”). The MINER Act amended section 110(a) of the Mine Act, by adding the
following provisions:

(2) The operator of a coal or other mine who fails to provide timely notification
[of an accident] to the Secretary as required under section 103(j) relating to the 15
minute requirement) shall be assessed a civil penalty by the Secretary of not less
than $5,000 and not more than $60,000.

(3)(A) The minimum penalty for any citation or order issued under section
104(d)(1) shall be $2000.

(B) The minimum penalty for any order issued under section 104(d)(2) shall be
$4,000.

(4) Nothing in the subsection shall be construed to prevent an operator from
obtaining a review, in accordance with section 106, of an order imposing a
penalty described in this subsection. If a court, in making such review, sustains
the order, the court shall apply at least the minimum penalties required under this
subsection.

30 U.S.C. § 820(a)(2) - (4).

The Secretary argues that the above provisions limit the general authority of the
Commission to set the amount of a civil penalty for violations issued under section 104(d) of the
Act. She further argues that the statutory language is not ambiguous, but if were found
ambiguous that her interpretation is reasonable and is entitled to deference.

In E.S. Stone &
Structure, Inc., 33 FMSHRC 515 (Jan. 2011) (ALJ), it was held that the language of section
110(a)(2) was directed solely to the Secretary’s assessment process and did not limit the
Commission’s discretion under section 110(i). The Judge there contrasted the language of
section 110(a)(2) with the more direct language of sections 110(a)(3) and (4), but ultimately
concluded that section 110(a)(4) applied “only to Federal appellate review in a circuit court and
does not clarify the differences in the statutory language between [sections 110(a)(2) and
110(a)(3)(A) and (B)].” Id. at 520, n. 2.

I find, as the Secretary argues, that the statutory language of section 110(a)(3)(A) is clear
and unambiguous. It mandates that the minimum penalty imposed for a violation under section
104(d)(1) shall be $2,000.00. While it appears that section 110(a)(4) is directed at Federal
appellate courts, it would be incongruous to hold that a reviewing circuit court was compelled to
impose at least the statutory minimum penalty, but that the Commission was not so constrained.

Eagle Wings is a small mine. The Secretary’s report on its history of violations identifies
only four, relatively minor violations issued more than two years prior to the inspection.

Ex. G-14. Respondent does not contend that payment of the proposed penalties would affect its
ability to continue in business. The parties stipulated that Respondent demonstrated good faith
in promptly abating the violations. The negligence and gravity factors have been addressed in
the discussion of the violations.

Citation No. 6565367 and Order No. 6565368 are affirmed as S&S violations which were
the result of Eagle Wings’ unwarrantable failure. Considering the factors itemized in section
110(i), I would impose penalties of $1,000.00 for each violation. However, I am constrained by
the Mine Act to impose penalties of at least $2,000.00. The penalties assessed were the statutory
minimums. I certainly find no reason to increase them. Accordingly, I impose a penalty in the
amount of $2,000.00 for each of the violations.

ORDER

Citation No. 6565367 and Order No. 6565368 are AFFIRMED. Respondent, Eagle
Wings Construction, LLC, is ordered to pay civil penalties in the total amount of $4,000.00
within 45 days.

/s/ Michael E. Zielinski

Michael E. Zielinski

Senior Administrative Law Judge

Distribution (Certified Mail):

Susan J. Willer, Esq., Office of the Solicitor, U.S. Department of Labor, 2300 Main Street, Suite
1020, Kansas City, MO 64108

Elton G. Bates, Eagle Wings Construction, LLC, Rt. 1 Box 965, Doniphan, MO 63935