Secretary of Labor v. Jeppesen Gravel

Plain-English summary

Jeppesen Gravel delayed an MSHA inspection, asked a deputy sheriff to arrest the inspectors, and continued confrontational conduct during the inspection despite a federal consent judgment requiring unobstructed entry. Judge Priscilla M. Rae found intentional and reckless interference with MSHA's statutory right of entry and approved the $4,000 special assessment for that violation. She also affirmed 16 citations issued because Jeppesen continued using equipment or work areas covered by final withdrawal orders without obtaining MSHA termination of those orders. Negligence was reduced from high to moderate on seven items that had been fully or partially abated, while nine unabated items remained high negligence. The Judge rejected defenses based on lack of a compliance-assistance visit, claimed ignorance of termination procedures, and financial hardship because the underlying violations were final, many corrections required little or no expense, and the financial evidence was incomplete. She assessed $30,000 in total penalties.

Decision snapshot

• Governing provisions: 30 U.S.C. §§ 813(a), 814(b), and 814(d)
• Outcome: The entry-interference violation and 16 withdrawal-order violations were affirmed, negligence was reduced on seven citations, and total penalties of $30,000 were assessed.
• Key point: Equipment and areas covered by withdrawal orders cannot return to service until MSHA or another authorized body terminates, modifies, or vacates the orders, even if the operator believes some conditions were corrected.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

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

October 15, 2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

JEPPESEN
GRAVEL,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. CENT 2014-298-M

A.C.
No. 13-02285-344601

Mine:
Jeppesen Pits

DECISION AND
ORDER

Appearances:               Robert
Alan Kelly, Esq., Office of the Solicitor, U.S. Department of Labor, Kansas
City, Missouri, for the Petitioner

Jay
A. Jeppesen, Owner of Jeppesen Gravel, Sibley, Iowa, pro se

Before:                        Judge
Rae

This case is before me on a petition for
assessment of civil penalties filed by the Secretary of Labor, acting through
the Mine Safety and Health Administration (“MSHA”), against Jeppesen Gravel
pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or the “Act”). A hearing was
held in Sioux Falls, South Dakota on July 14, 2015 at which the parties
presented testimony and documentary evidence. The parties submitted
post-hearing closing statements as well.

I.                  
Background

Jay Jeppesen owns and operates Jeppesen
Gravel as an unincorporated sole proprietorship located in Osceola County,
Iowa. The mine has been in business since the 1950s operated by Jeppesen’s
father until Jeppesen took it over in 1975 and has continued in operation to
this day. The gravel pit is a part-time endeavor and one of several other
businesses Jeppesen runs on the property including a borrow pit. On May 1, 2012
and October 12, 2012, inspectors for MSHA made inspections of the Jeppesen Pits
and issued various orders and citations for violations of mandatory safety and
health standards. Jeppesen was given a period of time in which to abate the
conditions. When the inspectors returned to the mine, either the violations had
not been abated or Jeppesen denied the inspectors entry to the mine to inspect
for compliance. Jeppesen was ordered to withdraw from any affected areas or
equipment, if it had not already been so ordered, as a result. MSHA inspectors
Troy Van Wey[1]
and Jeffrey Breon[2]
then returned to the mine on July 22, 2013 and issued 18 violations, one of
which was vacated prior to hearing. Of the 17 remaining, one was issued for a
denial of entry and the remainder for operating the withdrawn equipment or in
the affected areas without termination of the outstanding withdrawal orders. For
the reasons set forth below I find the violations have been established and the
penalties are assessed as set forth herein.

II.               
 Right
of Entry Violation

A.     Citation
6550468

MSHA inspector Troy Van Wey issued citation
6550468 on October 1, 2012 for a violation of section 103(a) of the Mine Act. The
lengthy narrative portion of this citation reads in pertinent part:

Jay Jeppesen, owner, interfered with the
right of entry of MSHA inspectors Jeffrey Breon and Troy Van Wey, both
authorized representatives of the Secretary, as they sought to inspect the
Jeppesen Pits mine site pursuant to Section 103(a) of the Mine Act. When
inspectors attempted to conduct their inspection, Mr. Jeppesen stated that they
were trespassing onto private property. Mr. Jeppesen then contacted the Osceola
County Sheriff’s Office to have the authorized representatives arrested and
told the Inspectors to wait in their van until the patrolman arrived instead of
beginning the inspection. The Osceola Patrol Deputy arrived at the scene and remained
there to keep the peace … Once the inspectors began their inspection Mr.
Jeppesen and his son, Alan, hindered and interfered with the inspection. Jay
Jeppesen moved into the close personal space of Inspector Van Wey and yelled at
him. When Inspector Van Wey asked [him] to back up out of his personal space,
Alan Jeppesen approached … from the other side and stuck a recording device
within one inch of [the inspector’s] face. At another point Alan Jeppesen
pushed the Federal Inspectors out of the way. When Alan was told that if he
pushed the Inspectors again it would result in a citation for intimidation,
Alan responded that he had not pushed the Inspectors but if they wanted to see
a push, he … would push both of them and they would know they had been pushed …

Denial of entry has been a recurring and
persistent problem at this operation over the years. Most recently on June 11,
2012, citation no. 8668129 was issued to Jay Jeppesen for a violation of Section
103(a) of the Mine Act.

Ex.
S-3. The negligence was assessed as the result of reckless disregard with a
proposed special assessment of $4,000.00.

Section 103(a) of the Act provides that
any authorized representative of the Secretary “shall have a right of entry to,
upon, or through any coal or other mine” for the purpose of making any
inspections under the Mine Act. 30 U.S.C. § 813(a). The refusal to permit an
inspection is a violation of section 103(a) for which a penalty must be
imposed. Waukesha Lime & Stone Co., 3 FMSHRC 1702, 1703 (July 1981).
A denial of entry may occur when an operator impedes, interferes with, hinders
or delays an inspection of a mine. Veris Gold USA, Inc., 35 FMSHRC 2977
(ALJ) (Sept. 2013). MSHA inspectors are not required to subject themselves to
confrontation or physical harm in order to carry out an inspection. Calvin
Black Enterprises, 7 FMSHRC 1151, 1157 (Aug. 1985). The Commission has
recognized that “denial of access to an MSHA inspector ... is an action not to
be taken lightly.” Tracey & Partners, 11 FMSHRC 1457, 1464 (Aug.
1989).

Jeppesen has a long and contentious history with MSHA which is relevant to
the determination of whether Jeppesen’s conduct here rises to the level of a
denial of the right of entry to the mine as provided by Section 103(a) of the
Mine Act and to substantiate the negligence and special assessment proposed by
the Secretary. A summary of this history, as outlined in detail in Judge
Manning’s decision in Jeppesen Gravel, 30 FMSHRC 324, 325-30 (Apr. 2008)
(ALJ), bears repeating here.

As a result of nearly two years of
MSHA’s inability to gain Jeppesen’s cooperation in filing legal identity
papers, consenting to an inspection without intimidating and harassing the
inspectors, and participating in a Compliance Assistance Visit (“CAV”), the
U.S. Attorney’s office was contacted for assistance. The end result was that Jeppesen
entered into a Consent Judgment in November 2004 issued by the U.S. District
Court for the Northern District of Iowa Western Division in which he was
ordered to permit representatives of the Secretary of Labor entry to, upon, and
through Jeppesen Gravel mines without further direct or indirect interference,
hindrance, or delay for the purpose of making inspections. It was further
ordered that any inspector may request the presence of a U.S. Marshall to
accompany the inspector should the inspector encounter any violation of the
Judgment. Ex. S-33.

Following the entry of the Judgment, in
June 2005, MSHA returned to the mine to conduct a CAV and Jeppesen failed to
cooperate. Several violations were found and the inspectors attempted to speak
with Jeppesen to discuss remediation of the conditions. Jeppesen actively
avoided them and continued to operate the mine without making what would have
been very inexpensive repairs. As a result of his continued refusal to allow
inspectors on the property, he was issued violations for not abating 104(b)
orders in October 2005. In January 2006, an Assistant U.S. Attorney accompanied
by a U.S. Marshall and an Osceola County deputy sheriff went to the mine to
encourage Jeppesen’s compliance. The AUSA explained the process for contesting
citations and made a comment that it would likely cost Jeppesen only $1,500.00
to abate the outstanding violations. At that point, Jeppesen became
confrontational and refused to cooperate in an inspection so they left the
property.

In July 2006, MSHA went to the mine to
terminate the outstanding violations. Alan Jeppesen was present initially but
he immediately parked the loader he was using and drove away. Jay Jeppesen then
arrived and ordered the inspectors off the property. Jeppesen’s actions were so
severe that the inspectors left to prevent an altercation. In August 2006, MSHA
attempted to make a compliance visit accompanied by a county deputy sheriff. Jeppesen
was asked to operate equipment so that the brakes, horns and alarms could be
tested. He refused and told the inspectors to leave.

Jeppesen was cited for denial of entry
in May 2004, June 2006, July 2006 and August 2006 as a result of his
argumentative and intimidating behavior as described above. Judge Manning found
Jeppesen had repeatedly harassed and attempted to intimidate MSHA inspectors
while in performance of their duties. He noted that Jeppesen did not dispute
the violations at trial. Based upon Jeppesen’s claimed inability to pay the
assessed penalties, he was given an 82% reduction in penalties for the 16 violations.
30 FMSHRC at 336-39.

On December 11, 2013, Jeppesen entered
into a settlement agreement with the Secretary that included another violation
of 103(a) for denial of entry on June 11, 2012 as well as 36 additional
violations including each of the 16 underlying violations at issue herein. He
agreed to pay reduced penalties amounting to $28,500.00.  Ex. S-37.

The instant 103(a) violation occurred on
October 1, 2012 but was not included in the settlement order of December 11,
2013. MSHA inspectors Van Wey and Breon traveled to the Jeppesen mine to
conduct an inspection. They accessed the property via the gravel road located at
719 8th Street, the official mine address provided by Jeppesen to MSHA. Once on
site, they contacted Jeppesen by cell phone to begin their inspection. Jeppesen,
however, did not arrive until approximately thirty minutes later and
immediately commenced yelling and screaming at the inspectors telling them that
they were trespassing. He then called 911 and while awaiting the arrival of the
deputy sheriff informed the inspectors that they were not permitted to begin
their inspection. The two inspectors waited inside their vehicle for the
sheriff to come. When deputy sheriff Nate Krikke arrived, Jeppesen instructed
him to arrest the two inspectors and tow their vehicles from the property. After
Van Wey and Breon properly identified themselves to Krikke, the deputy told
Jeppesen that he would not do so. Jeppesen then attempted to send Krikke away
but the deputy took it upon himself to remain to keep the peace. Jay Jeppesen continued
to harass the inspectors by getting up in Van Wey’s face yelling and screaming
at him while his son, Alan Jeppeson, pointed a video camera in Van Wey’s face
and video-recorded the entire inspection. Jay Jeppesen continued to yell at the
inspectors and raised his arms in the air in an attempt to physically prevent
their access and to intimidate them.[3]
At one point Alan Jeppesen assaulted Van Wey by pushing his shoulder into the
inspector’s chest while Jay Jeppesen stood by and laughed at Van Wey. This
incident was verified by Deputy Krikke’s report and testimony. Tr. 202-06; Ex.
S-4. I find the inspectors’ and Krikke’s version of the facts to be credible.

Jeppesen did not deny the facts as
presented by Krikke and Van Wey but asserted at trial that he was upset with
the manner in which the inspectors arrived on the property. He testified that
there were children playing outside the house adjacent to the road the
inspectors allegedly sped down and he was concerned for their safety. Krikke,
however, credibly testified that there were no children to be seen in the area.
Tr. 208. The inspectors testified that they had already arrived at the mine and
had been waiting approximately 30 minutes when Jeppesen appeared which makes it
highly unlikely anyone saw the inspectors as they drove past the house. They
further confirmed that Jeppesen did not raise any concerns about children at
the time of the attempted inspection; the first time this issue was raised was
at trial. Jeppesen’s other objection to MSHA’s presence on the property was
that they used the ¾-mile-long private road to reach the mine. It was his
contention that MSHA should be compelled to use a helicopter instead.

I find that Jeppesen’s assertion that he
was fearful for the safety of children was an invention conjured up for trial. His
opinion that MSHA should arrive by helicopter to perform its inspections does
not warrant comment. The road used by MSHA is the one provided by Jeppesen
himself as the legal address of the mine and the only means of access by motor
vehicle.

I
find the violation to be very serious particularly in light of the many
instances of such conduct to the point the Secretary had to request the
intervention of the Federal District Court, the U.S. Attorney’s Office, the
U.S. Marshall service, and the county sheriff’s office to impress upon Jeppesen
the gravity of his actions and the absolute right of the inspectors to enforce
the Mine Act. Unfortunately, it appears that Jeppesen has no genuine interest
in cooperating with MSHA or complying with a federal order. Jeppesen’s conduct
was egregious and completely uncalled for. He clearly engaged in harassment,
intimidation, and threats of physical harm towards the two inspectors to
prevent or unreasonably delay their entry to the mine. I find the violation has
been established.

B.    
Negligence

The Commission has held “that an
operator’s intentional violation constitutes high negligence for penalty
purposes.” Topper Coal Co., Inc., 20 FMSHRC 344, 350 (Apr. 1998) (quoting
Consolidation Coal Co., 14 FMSHRC 956, 969-70 (June 1992)). It is clear
that Jeppesen’s conduct on October 1, 2012 was a continuing display of his
complete contempt and disregard for MSHA’s authority to inspect the mine for
health and safety violations and to enforce the Act. His conduct was egregious
and both his and his son’s actions constituted criminal assault and battery on
Van Wey as well as a violation of Section 103(a) of the Act. Their behavior was
designed to intimidate and harass the inspectors and presented a real potential
for physical harm had it not been for the presence of the deputy sheriff on the
property during the inspection. There is no doubt Jeppesen’s conduct was
intentional and deliberate and constitutes recklessness.

The Secretary has proposed a special
assessment for this violation in the amount of $4,000.00. Part 100 of the
Secretary’s regulations provides MSHA with the authority to waive the regular
assessment process when certain conditions warrant an enhanced penalty. 30 C.F.R.
§ 100.5(a). Such enhanced assessments are designed for particularly serious or
egregious violations. Coal Employment Project v. Dole, 889 F.2d 1127
(D.C. Cir. 1989). The severity of conduct at the most extreme end of the
spectrum may involve physical assault of an inspector resulting in serious
injury; however, lesser degrees of conduct may justify a special assessment. Here,
while no injury occurred, Jeppesen’s conduct rose to the level of an assault on
Van Wey while his son’s conduct constituted a battery. Jeppesen’s actions were
intentionally designed to intimidate the inspectors and posed a threat of
imminent physical harm. Had it not been for Krikke’s arrival, physical harm may
well have occurred. Jeppesen’s actions rose to the highest level of egregious
conduct and the Secretary’s proposed special assessment is well deserved. The
appropriate penalty will be set forth below.

III.            
Violations
for “Working in the Face of an Order”

The
following 16 violations were issued under Section 104(a)[4]
of the Mine Act for “working in the face of a prior order” rather than
violations of mandatory health and safety standards. Therefore, gravity,
significant and substantial,[5]
and unwarrantable failure[6]
designations do not apply.

Twelve
of the underlying violations issued to Jeppesen were originally written as
Section 104(a) citations for violations of mandatory safety standards, five of which
were significant and substantial (“S&S”). Having failed to abate the cited
hazards within the prescribed time period, Jeppesen was then issued Section
104(b)[7]
orders mandating withdrawal from the cited equipment and areas until the
violations were abated and MSHA was called in to terminate the orders. The
remaining four are predicated upon Section 104(d) orders[8]
that were originally assessed as S&S and unwarrantable failure violations. On
July 22, 2013, when MSHA inspectors returned to the mine they found that
Jeppesen had continued to use the equipment or areas affected by the prior
orders and had not contacted MSHA to terminate any of the orders.[9]
These “working in the face of a withdrawal order” violations were issued as a
result by Inspectors Breon and Van Wey.

Each of the underlying 16 violations
were conceded by Jeppesen and incorporated into the aforementioned settlement
agreement of December 11, 2013. Ex. S-37. Jeppesen did not contest any of the
withdrawal orders in accordance with Commission Procedural Rule 20.[10]
Therefore all prior underlying violations and the propriety of any subsequent
withdrawal orders are admitted and unreviewable at this time.

Jeppesen has raised an overarching claim
that he was denied a Compliance Assistance Visit (“CAV”) prior to being issued
many of the underlying citations herein. Because Jeppesen entered into the
settlement agreement in December 2013, this issue is now moot. I would,
nevertheless, find that such a claim does not rise to the level of a defense. Jeppesen
neither contacted MSHA to request a CAV on any of the underlying citations or
orders nor did he cooperate in any of the CAVs MSHA attempted to conduct in the
past, as outlined in Judge Manning’s decision. A CAV is available to an
operator at the onset of operations or when putting new equipment or a new plant
into service. Any violations found are written up in a notice and the operator
is given an opportunity to correct the conditions. If the corrections are not
made in a relatively short period of time, the notice becomes a regular
citation. Because Jeppesen had been in business for 20 to 30 years before the issuance
of the initial underlying citations and orders, which did not encompass any new
equipment recently put into service, he was not entitled to a CAV. Tr. 104. Even
if he had been, the issue is irrelevant as the conditions went unabated for
many, many months and would have been converted into regular violations. MSHA’s
failure to conduct a CAV would not have precluded the issuance of the
subsequent withdrawal orders or the citations now at issue.

Jeppesen also has raised an inability to
pay for the necessary repairs as a reason for not having abated the hazards in
question. However, an inability to pay is relevant only to the issue of
penalties, not the necessity to abate the condition. See Asarco, Inc. v.
FMSHRC, 868 F2d 1195 (10th Cir. 1989) (finding that mine operators are
strictly liable for violations of safety and health standards).

Additionally, Jeppesen claimed that he
was unaware of the requirement to contact MSHA in order to terminate a
withdrawal order. Tr. 332. I find this claim to be without merit. An operator
is charged with the responsibility to know, understand and adhere to the Act,
the mandatory health and safety standards, and all applicable regulations if it
is to engage in mining. Jeppesen clearly understands the proper procedure for
terminating prior citations and orders. He has been issued many of both citations
and orders in the past as demonstrated by the MSHA Violation History Report and
prior ALJs’ decisions and settlement order. Jeppesen Gravel, 32 FMSHRC
1749 (Nov. 2010) (ALJ); Jeppesen Gravel, 30 FMSHRC 324 (Apr. 2008)
(ALJ); Exs. S-34, 35, 37, 44. He has been given detailed in-person instructions
by the U.S. Attorney on how to properly contest violations. He has been offered
the opportunity to participate in close-out conferences and CAVs by MSHA. In
short, he has been provided more opportunities than the average small mine
operator to familiarize himself with the requirements under the Mine Act. He is
clearly not an unintelligent person; he has operated this mine as well as
several other businesses for decades. He was savvy enough to have obtained and
submitted a copy of the U.S. Department of Labor’s “Small Mine Assessment
Process Summary” Booklet published by the DOL and National Mine Health and
Safety Academy in his pretrial hearing report. Ex. R-23. I find Jeppesen’s
allegation is disingenuous.

Jeppesen did not seriously contest that
he placed the withdrawn areas or equipment back into service without having the
withdrawal orders terminated. At trial he admitted to having operated the mine
in August 2012, the screen plant in November 2012, and the wash plant,
including the cited John Deere tractor, during the two months preceding the
July 2013 inspection. Tr. 72-74, 133-34, 138-39, 143, 150, 180, 269-70. He had
been observed operating the excavator, wash plant and tractor upon the
inspectors’ arrival at the mine on July 22, 2013. Tr. 62, 71-72, 131, 134,
236-37, 252, 277, 285.

Therefore, the only issues remaining are
the appropriate level of negligence and the proper penalty to assess.

A.   
Violations Fully or Partially Abated

Inspector Breon assessed each of the
“working in the face of a withdrawal order” violations as high negligence
violations.[11]
His reasoning was that Jeppesen clearly knew of the hazardous conditions cited
in the withdrawal orders and in many instances in a citation issued prior to
the order, yet he then knowingly and intentionally ignored the orders and
continued to operate the mine before they were terminated. Many of the conditions
would have required only minimal effort on Jeppesen’s part to make a telephone
call for MSHA to terminate the orders.

The Secretary has acknowledged that
Jeppesen had fully abated four of the violations and partially abated another
three prior to MSHA’s return visit on July 22, 2013. The Secretary concedes
that Jeppesen’s actions with regard to the relevant seven citations may be
considered in mitigation of the high negligence, moderate negligence being more
appropriate.[12]
See Sec’y’s Post-Trial Closing Statement 14.

Jeppesen has intentionally and
repeatedly thumbed his nose at MSHA’s authority and disregarded his
responsibility to maintain a safe and healthful working environment, which is
deserving of a high negligence designation. However, I agree with the
Secretary’s recognition that Jeppesen’s eventual, although late and in some
instances insufficient, efforts at compliance are a mitigating factor and I
find moderate negligence is appropriate.

The citations modified to moderate
negligence and the underlying facts are:

1.     
Citation
No. 8737364/Ex. S-10

The original citation, No. 8667978/Docket No. CENT
2013-188-M, was issued on October 1, 2012 as a non-S&S 104(a) violation. The
cited standard is 30 C.F.R. § 56.12008, which requires that electrical cables
enter metal frames outfitted with proper fittings or bushings. Ex. S-10d. When
the inspectors returned on October 22, 2012, they found no attempt to abate the
citation had been made within the time allotted and issued a 104(b) order
taking the 480-volt power cable out of service. Ex. S-10e. Inspectors Van Wey
and Breon testified that when they returned on July 22, 2013, they found that
Jeppesen had abated the condition but could not say when.

2.     
Citation
No. 8737367/Ex. S-13

The original citation, No.
8667980/Docket CENT 2013-188, was issued on October 1, 2012, as an S&S
104(a) citation. The citation was issued on the blue stacking conveyor for a
violation of 30 C.F.R. § 56.14107(a) requiring moving machine parts be
guarded to prevent persons from contacting fan blades, shafts, gears or any
other similar parts that could cause injury. There were numerous pinch points
found as a result of exposed moving parts. Ex. S-13d. On October 22, 2012 Breon
found that nothing had been done to install guards and a 104(b) order was
issued. Ex. S-13e. Having returned in July 2013, the inspectors found that a
guard had been installed; Jeppesen claimed this had been accomplished in
October 2012.

3.     
Citation
No. 8737370/Ex. S-16

The original citation, No. 8668082/Docket
CENT 2012-724, was issued on May 1, 2012 as an S&S 104(a) citation. The
citation was issued on a John Deere tractor in violation of 30 C.F.R. §
56.14107(a), which requires moving machine parts be guarded to prevent persons
from contacting fan blades, shafts, gears or any other similar parts that could
cause injury. Abatement was due, as twice extended, by May 26, 2012. Ex. S-16d.
On June 11, 2012, a 104(b) order was issued when Jeppesen would not permit the
MSHA inspector to enter the mine to inspect the tractor for compliance with the
citation. The tractor was withdrawn from service until an inspector could
observe the tractor. Ex. S-16e. Upon the return visit in July 2013, the
inspector found that a guard had been installed to protect the cooling fins and
drive belt. Jeppesen stated it had been installed two years earlier, which is
obviously not true, as the original citation was issued just 14 months earlier.

4.     
Citation
No. 8737372/Ex. S-18

The underlying citation, No.
8668084/Docket 2012-724, was issued on May 1, 2012 as an S&S 104(a)
citation under 30 C.F.R. § 56.11001 for a lack of safe access to the water
source used to prime the dewatering pump. Ex. S-18d. On June 11, 2012,
inspectors were refused access to the mine to observe the condition and a
withdrawal order was issued for the dewatering pump. Ex. S-18e. When the
inspectors returned in July 2013, Jeppesen had abated the condition at some
unknown time by obtaining water using the excavator bucket rather than by hand.

5.     
Citation
No. 8737365/ Ex. S-11

The underlying citation, No.
8667979/Docket CENT 2013-188, was issued to Jeppesen on October 1, 2012 as an
S&S 104(a) violation of 30 C.F.R. § 56.11012 when Breon found the west side
elevated travelway of the wash plant did not have a railing, barrier or cover
over a large opening at a height of approximately seven feet above ground
level. The top of the ladder accessing the area was also not protected in any
way. Tr. 93-94; Ex. S-11c. On October 22, 2012 Breon found that nothing had
been done to correct this hazard and he issued withdrawal order No. 8737209. Ex.
S-11d. Jeppesen at some time prior to the inspector’s return in July 2013 had
placed a chain across the opening on the travelway, but Breon felt the chain
was not sufficiently stable, and nothing had been done to protect the ladder. Tr.
97-98. Jeppesen has not fully abated the condition to this inspector’s
knowledge. Tr. 99.

6.     
Citation
No. 8737368/Ex. S-14

The underlying citation, No.
8667976/Docket CENT 2013-188, was issued on October 1, 2012 as an S&S
104(a) violation of 30 C.F.R. § 56.14107(a) for failure to guard the drive
belts and sheaves on the east and west side of the wash plant. Ex. S-14d. When
Jeppesen failed to make any corrections, he was issued a withdrawal order on
the drive belts and sheaves of the wash plant on October 22, 2012. Ex. S-14e. Jeppesen
thereafter partially abated the violation by guarding the west side of the
exposed parts but not the east side. Tr. 172-73.[13]

7.     
 Citation
No. 8737371/Ex. S-17

The first citation, No. 8668083/Docket
CENT 2012-724, was issued on May 1, 2012 as an S&S 104(a) citation under 30
C.F.R. § 56.14107(a) for failure to provide a guard on the PTO shaft of the
dewatering pump. Ex. S-17d. A withdrawal order was issued on this equipment for
failure to abate on June 11, 2012 as a result of Jeppesen denying the
inspectors entry to the mine to re-inspect the equipment. Tr. 231-32; Ex.
S-17e. When Breon and Van Wey returned in July 2013, they found that Jeppesen had
guarded part of the shaft by installing some expanded metal to cover the
knuckle ends to some extent but not the shaft itself. Tr. 232-33.[14]

B.    
Unabated Violations

Each of the following violations was
designated as high negligence for the same reasons as were all the other
“working in the face of a withdrawal order” violations. Jeppesen has complete
control and responsibility over all operations at the mine including correction
of hazardous conditions. Tr. 160. Jeppesen knew of the hazards based upon the
prior citations, yet as of July 2013 he had done nothing to correct them and he
had not called MSHA to terminate the orders on the ones he had abated. Tr.
149-50. In many instances, the cost or effort involved to abate the condition
was minimal at best. Tr. 75-76.

I agree with the Secretary’s assessment
of high negligence as stated above based upon Jeppesen’s willful failure to
abate longstanding hazardous conditions and his complete disregard for MSHA’s
authority and for safety at his mine with respect to the following citations:

1.     
Citation
No. 8737363/Ex. S-9

The first citation, No. 8667977/Docket
CENT 2013-188, was issued on October 1, 2012 by Breon as a non-S&S
violation 104(a) violation of 30 C.F.R. § 56.12018 because the main 480-volt
electrical disconnect box for the wash plant was not labeled to show what it
controlled. The termination due date was the following day. Ex. S-9d. When
Breon returned 21 days later, the box was not labeled and a 104(b) withdrawal
order was issued. Ex. S-9e. On July 22, 2013, the box was still not labeled,
but as stated above, the mine including the wash plant had been in operation
for approximately two months. Tr. 71-74. Eight minutes after this instant
citation was issued, Jeppesen used a Sharpie® marker to label the electrical
disconnect at the inspector’s suggestion. Tr. 71, 74.

Breon noted that Jeppesen could have
easily abated the violative condition earlier by simply using a marker to label
the box but failed to do so in nine months. Tr. 75-76.

2.     
Citation
No. 8737366/Ex. S-12

On May 1, 2012, Citation No.
8668095/Docket CENT 2012-724 was issued as a non-S&S 104(a) violation under
30 C.F.R. § 56.4201(a)(1)[15]
for a failure to perform the yearly inspection on a fire extinguisher located
in the office/electrical van. Ex. S-12d. A withdrawal order was issued on June
11, 2012 when Jeppesen refused the inspector’s entry to the mine to verify
compliance. Ex. S-12e. On July 22, 2013, the extinguisher had not yet been
inspected but was still available for use. Tr. 158. Van Wey testified that many
volunteer fire departments will send someone to perform the annual inspections
free of charge. Small mine operators often purchase a new extinguisher at
Walmart and put it into service on the abatement due date. Tr. 157. Jeppesen
had done neither.

3.     
 Citation
No. 8737369/Ex. S-15

The original order, No. 8667985/Docket
CENT 2013-284, was issued on October 2, 2012 under 30 C.F.R. § 56.9300(a) as a
104(d)(2) violation when Breon found there was no berm in numerous locations
along the access road around the mine site. The order was issued as an S&S
violation and an unwarrantable failure, apparently based upon the extensiveness
of the violation, the number of previous violations, the open and obvious
nature of the condition, and the likelihood and gravity of injury presented. Ex.
S-15d. Jeppesen accepted responsibility for this violation as issued. Ex. S-37.
When Breon returned to the mine in July 2013, he found that there were still
extensive areas around the mine lacking berms. Tr. 183. Tire tracks were
visible just feet away from the drop-off to the plant pond. Tr. 185-86. Jeppesen
had the equipment and material on-site to easily build berms. There were
locations where he could have simply lowered the blade of the excavator to the
ground and pushed the material up into a berm. It would have taken him just a
few hours to abate the violation. Tr. 182-83.

4.     
 Citation
No. 8737373/Ex. S-19

The original order, No. 8668101/Docket
CENT 2012-787, was issued on May 5, 2012 under 30 C.F.R. § 56.18002(a) as an
S&S, unwarrantable failure 104(d)(1) violation for a failure to conduct an
adequate workplace examination of the wash plant. Ex. S-19c. Notations on the
pages of a calendar were being used to record examinations and several obvious
and dangerous conditions that had been cited over a long period of time had not
been addressed. The violation was assessed as S&S and unwarrantable
failure. Ex. S-19c. Jeppesen admitted to the violation and it was incorporated
into the December 11, 2013 settlement order. Ex. S-37. When Breon returned to
the mine in July 2013, Jeppesen was still not conducting workplace examinations
of the wash plant but continued to use it. Van Wey testified that the Small
Mines Workbook is used by inspectors to educate new owners of small mines as to
the requirements for workplace examinations, including the necessity of
conducting and documenting these examinations. Tr. 240-41. The booklet sets
forth the standard, suggests the manner in which the operator should document
the results of the examinations, and informs the operator that the records
should be maintained for one year on-site. Tr. 240-42. Based upon the volume of
open and obvious violations found, it was readily apparent to Van Wey that
Jeppesen had not been performing the examinations. Jeppesen could provide no
documentation of having done them. Tr. 243.

5.     
Citation
No. 8737374/Ex. S-20.

Jeppesen was initially issued Citation
No. 8667986/Docket CENT 2013-188 on October 2, 2012 as a non-S&S 104(a)
violation for using an indoor-rated 480-volt electrical cable to supply power
to the screen plant in violation of 30 C.F.R. § 56.12004. This presented a
danger of inner conductors being damaged due to weather and mechanical damage. Tr.
254-55. When Breon returned three weeks later, Jeppesen had not replaced the
cable with an outdoor-rated one and a 104(b) order was issued. Tr. 255; Ex.
S-20e. Nine months later, in July 2013, Breon found Jeppesen had still not
replaced the cable. Instead he had sprayed the indoor cable with Flex Seal®
rubberized coating, which is not designed to protect electrical cables from
damage. The material came off in the inspector’s hand when he touched it. Tr.
259; Ex. R-14. When confronted with this fact, Jeppesen laughed about it and
said he had painted the cable black. Tr. 260.

6.     
Citation
No. 8737375/Ex. S-21

The underlying citation, No.
8667983/Docket CENT 2013-188, was issued as a non-S&S 104(a) violation on
October 2, 2012 for a violation of 30 C.F.R. § 56.4201(a)(1) because the fire
extinguisher in the electrical van had not been visually inspected at least
once each month to ensure it was fully charged and operational. Ex. S-21c. The
tag on the extinguisher that is normally dated and initialed when the
inspection is done was missing such demarcations for September and October 2012
and thereafter, which resulted in a 104(b) order being issued on October 22,
2012 for continued failure to make the visual inspections. Tr. 262-64; Ex.
S-21d. Jeppesen still had not made the requisite visual inspections and
admitted to having no documentation of having done any when the inspectors
returned ten months later, which led to the issuance of the instant citation.[16]
Tr. 265; Ex. S-21.

7.     
 Citation
No. 8737376/Ex. S-22

The initial record-keeping citation, No.
8668099/Docket CENT 2012-724, was issued as a non-S&S 104(a) violation on
May 1, 2012 for not having task training records in violation of 30 C.F.R. §
46.9(g). Ex. S-22d. Five weeks later inspectors returned and asked for the
records and again Jeppesen could not produce them. Tr. 276. A 104(b) order was
issued on June 11, 2012. Tr. 276; Ex. S-22e. Had Jeppesen mailed or faxed the
required documents to MSHA, this order would have been terminated without a return
visit. Tr. 276. However, he failed to do so and on July 22, 2013, when he still
had no documentation available, the instant citation was issued. Tr. 277. Jeppesen
had refresher training records for himself and his son, Alan, dated April 2013
but not task training records. Tr. 277-78. If an individual mine owner has no
employees,[17]
generally the equipment manufacturer will provide the initial task training. The
mine owner could certify himself thereafter, but the documentation is still
required. Tr. 280. When the inspectors returned again in July 2013, Jeppesen
still had no task training records of any kind and several new pieces of
equipment were observed on-site. Tr. 279; Ex. S-22.

8.     
 Citation
No. 8737377/Ex. S-23

The underlying violation, 104(d)(1)
Order No. 8668102/Docket CENT 2012-782, was issued as an S&S, unwarrantable
failure violation on May 2, 2012 in violation of 30 C.F.R. § 56.14100(a) for
not performing adequate examinations of mobile equipment (the excavator). The
order states that there were numerous longstanding hazardous conditions that
were open and obvious and were capable of causing serious injuries for which
several citations and/or orders had been issued in the past. Ex. S-23c. When
Jeppesen continued to operate the mobile equipment without putting a
pre-operation examination program into action, the instant citation was issued.
Tr. 285.

9.     
Citation
No. 8737378/Ex. S-24

On May 1, 2012 the initial 104(d)(1)
order, No. 8668098/Docket CENT 2012-187, was issued under 30 C.F.R. § 56.9300(a)
as an S&S and unwarrantable failure violation for failure to maintain
berms. This violation encompassed one area that was 21 feet long with a
drop-off of 4 feet and another that was 24 feet long with a drop-off of 4 feet.
Tire tracks were observed in both areas, showing this violation posed a very
serious hazard to miners. The same condition had been cited numerous times
previously. Tr. 286-89; Ex. S-24d. Jeppesen was still operating mobile
equipment without the berms when the inspectors returned in July 2013. Tr. 289.

In conclusion, upon the uncontradicted
testimony of the inspectors as well as Jeppesen’s admissions, I find each of
the 16 violations has been established.

.   

IV.            
Penalties

Section 110(i) of the Mine Act delegates
to the Commission and its judges the authority to assess all civil penalties de
novo. 30 U.S.C. § 820(i). The Act requires that in assessing civil
penalties the Commission and its judges shall consider the six statutory
penalty criteria found in Section 110(i): 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. Id.

The Secretary has assessed a special
penalty for each of the violations in this docket based upon Jeppesen’s
repeated and persistent violations, his refusal to recognized MSHA’s authority,
his lack of respect for the health and safety of miners, and his continued use
of withdrawn equipment and work areas.

History of Previous Violations

The Assessed Violation History Report
demonstrates that Jeppesen has a long list of prior violations, which is
particularly noteworthy for a small mine. Many of the violations are of the
same mandatory standards cited here. See Exs. S-34, S-35. As set forth
above, Jeppesen entered into an agreement in December 2013 in which he agreed
to settle 37 outstanding violations including the 16 violations upon which the
violations discussed herein are predicated. Ex. S-37. He has been found to have
violated Section 103(a) for interfering with the Secretary’s right of entry on
numerous occasions prior to the violation on October 1, 2012.

I find the number of prior violations is
extremely high for a part-time, small mine.

Gravity of the Violations

Because the 16 violations for working in
the face of a withdrawal order were issued as a violation of the Act, by MSHA
policy, they are marked non-S&S. Gravity is not relevant to these
citations.

With respect to the interference with
the right of entry citation, as stated above, I find Jeppesen’s actions to have
been most egregious and physically threatening to the two inspectors. The
gravity is very high.

Negligence

The negligence has been assessed as
stated in the discussion of the violations. The Secretary has argued that the
negligence for Citation 8737374 in which Jeppesen spray painted the electrical
cable should be assessed as reckless disregard because the violation reflected
an attempt to disguise the lack of abatement. I decline to find reckless
disregard. The violation was initially assessed by the inspector as moderate
negligence and raised to high negligence upon finding that Jeppesen had sprayed
the cable with a rubber sealant. It is not clear that this was done in an
attempt to fool the inspector. It was more likely an attempt on Jeppesen’s part
to not spend money on installing proper equipment and to intentionally flaunt
MSHA’s authority – his modus operandi. I give deference to the
inspector’s assessment and find high negligence is appropriate.

Demonstrated Good Faith in Rapid
Compliance

As the nature of the violations herein
makes abundantly clear, the thought of making efforts to rapidly comply with
the mandatory standards has never troubled Jeppesen’s mind. I find there has
been no good faith effort to comply with the cited mandatory standards.

Appropriateness to the Size of the
Business and the Ability to Continue in Business

I find that Jeppesen is a sole
proprietor of a very small mine with several prior violations of section 103(a)
of the Act during the relevant time period. I further find that he has one
employee, Alan Jeppesen. Jeppesen argued in the instant matter that Alan
Jeppesen is not an employee but an independent contractor whom he pays $85.00
per hour to perform manual labor. Van Wey testified that Alan had participated
in at least two inspections he made. Alan was actively engaged in the attempt
to prevent entry to the mine and Jeppesen had signed off on Alan’s annual
refresher training in 2013. Tr. 163; Ex. S-4, 257. Jeppesen entered into
stipulated findings of fact before Commission Judge Melick in November 2010
that Alan was his employee. See Jeppesen Gravel, 32 FMSHRC 1749,
1758 (Nov. 2010) (ALJ). Judge Manning also determined that Alan Jeppesen was an
employee in 2008. All of these factors lead me to the conclusion that Alan
Jeppesen is and continues to be an employee of Jeppesen Gravel.

Regarding sole proprietorships, the
Commission has held that ability to continue in business must take into account
the effect of a penalty on the individual’s ability to meet his financial
obligations. Unique Electric, 20 FMSHRC 1119, 1122-23 (Oct. 1998). The
Commission has also held that in the absence of proof that the imposition of
authorized penalties would adversely affect the ability to continue in
business, it is presumed that no such adverse effect will occur. Sellersburg
Stone Co., 5 FMSHRC 287, 294 (Mar. 1983).

Jeppesen asserts that the penalties
proposed herein would hinder its ability to remain in business. Jeppesen
submitted the “Client Copy” of his tax returns for 2013 and 2014 as proof of
his claim. These uncertified, unfiled documents indicate he took substantial undefined
deductions on his income taxes for various expenses including cost of goods
sold, depletion, repairs, “other expenses,” and supplies and depreciation
(including over $23,000 in both years for unspecified “Cap Repairs”) to reduce
his gross income by more than $200,000. Exs. R-20, R-21. He offered no
testimony, balance sheets, or evidence of liens with regard to his income and
nothing relating to his income or expenses in 2015. He would not disclose how
much of his past income and expenses were for the mining business. Tr. 314-15. He
offered no explanation for why the mining business is part-time rather than
full time and submitted nothing to document his financial familial obligations.

I find the evidence of Jeppesen’s
financial status is insufficient to prove an inability to continue in business.
See Spurlock Mining Co. et al., 16 FMSHRC 697 (Apr. 1994) (operator
failed to introduce “specific evidence” to show penalties would affect ability
to continue in business); Rock Express, Inc., 36 FMSHRC 2696 (Oct. 2014)
(ALJ) (unaudited document with non-disclosed assets and future earnings did not
meet burden); Uehlin Quarries, 36 FMSHRC 2281 (Aug. 2014) (ALJ) (summary
allegations are not sufficient to reduce penalty even for small family-owned
business); Ikerd Mining Co., LLC, 35 FMSHRC 3302 (Oct. 2013)
(ALJ) (incomplete tax return with “other deductions” without specific testimony
not sufficient to reduce penalties); L&T Fabrication & Constr.,
21 FMSHRC 71 (Jan. 1999) (ALJ) (unaudited financial records insufficient to
reduce penalties).

Jeppesen has, to the contrary, been able
to pay his son and Dave Nasters $85.00 per hour each for manual labor. Tr.
320-21. And, despite the sizeable deductions on his unverified income tax
returns, based upon the unabated conditions the inspectors found that had
existed for up to 14 months, he had not actually made any such expenditure he
deducted as costs of goods sold, repairs, etc.

When looking at the initial citations
and orders that led to the issuance of the withdrawal orders, it is readily
apparent that many of the violative conditions could have been eliminated with
little or no expense at all, making it even more apparent that Jeppesen’s claim
of financial hardship is a ruse. In one instance, he abated an electrical
violation by using a black marking pen to label a junction box. In another he
used a piece of equipment to gather water to prime a pump instead of a handheld
bucket. He could have used the equipment on-site to push dirt up to form berms
around his property but refused to do so. He told the MSHA inspector he did not
have a guard on machinery because it was his right to put a hand in the fan
tail pulley if he wanted to. Tr. 152. He could have performed monthly
inspections of the fire extinguisher himself at no cost and had the annual
inspection done at no charge by a fire department. Proper conduction of
pre-operational examinations and completed training documentation obviously
carried no expense as well.

In reaching a settlement for $28,500.00
in 2013, Jeppesen admitted that he had the ability to pay the penalties, yet he
has not paid a dime. In fact, he has not paid any of the fines MSHA has ever
assessed against him since 2004.[18]

The financial inability criterion under
the Act is available to operators who at least in good faith try to comply with
the mandatory standards of the Act but are limited in the ability to pay higher
fines. In this instance, Jeppesen attempts to avoid paying any penalties for
extremely hazardous conditions that have persisted for significant periods of
time. In fact, he stated to the inspectors repeatedly that each of their
citations would only cost him ten cents, apparently referring to the fact that
another ALJ had significantly reduced the assessed penalties in the past. Tr.
145, 151-52.

I find that Jeppesen has not met his
burden of proving that the proposed penalties will affect his ability to
continue in business. I also find that the Secretary has made his case for
enhanced specially assessed penalties against Jeppesen Gravel for the
demonstrated lack of respect for MSHA, the Mine Act, the individual inspectors
who are charged with carrying out lawful inspections of Jeppesen’s mine, and
the miners he employs as independent contractors or otherwise.

I assess the following penalties based
upon the relevant criteria set forth in Section 110(i) of the Mine Act as
discussed above:

1.      Citation
No. 6550468 – $4,000.00

2.      Citation
No. 8737364 – $1,000.00

3.      Citation
No. 8737367 – $1,000.00

4.      Citation
No. 8737370 – $1,000.00

5.      Citation
No. 8737372 – $1,000.00

6.      Citation
No. 8737365 – $1,000.00

7.      Citation
No. 8737368 – $1,000.00

8.      Citation
No. 8737371 – $1,000.00

9.      Citation
No. 8737363 – $1,000.00

10.  Citation
No. 8737366 – $1,000.00

11.  Citation
No. 8737369 – $5,000.00

12.  Citation
No. 8737373 – $3,000.00

13.  Citation
No. 8737374 – $1,000.00

14.  Citation
No. 8737375 – $1,000.00

15.  Citation
No. 8737376 – $1,000.00

16.  Citation
No. 8737377 – $3,000.00

17.  Citation
No. 8737378 – $3,000.00

V.               
Order

For the reasons set forth above, the
citations are AFFIRMED or MODIFIED as discussed above. Jay
Jeppesen, doing business as Jeppesen Gravel, is ORDERED TO PAY the
Secretary of Labor the sum of $30,000.00 within 60 days of this decision. Payment
should be sent to: U.S. Department of Labor, Mine Safety and Health
Administration, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

/s/ Priscilla M.
Rae

Priscilla
M. Rae

Administrative
Law Judge

Distribution:

Robert Alan Kelly, Esq., U.S.
Department of Labor, Office of the Solicitor, Two Pershing Square, 2300 Main
Street, Suite 1020, Kansas City, MO 64108

Jay A. Jeppesen, Jeppesen Gravel,
719 8th Street, Sibley, IA 51249

[1] Van Wey has
been an MSHA inspector for 10 years, and was assigned as the field office
supervisor of the Ft. Dodge, Iowa office for four years, including the
timeframes pertinent to this case. He has conducted approximately 200 mine
inspections and has 13 years’ prior experience as a miner. Tr. 14-18.

[2] Breon was an
aircraft mechanic in the U.S. Air Force for 11 years upon graduation from high
school. He has 12 years of experience as a miner and became an MSHA inspector
in 2010. He has performed approximately 150 inspections of mines. Tr. 106-09.

[3] Jay Jeppesen is
a tall and heavy man. The inspectors are of average height and weight. I find
it objectively reasonable that they would feel physically threatened and
intimidated by Jeppesen’s actions.

[4] Section 104(a)
provides, in pertinent part, that if during an inspection of any mine the
inspector finds the operator has violated the Act, or any mandatory standard,
he shall issue a citation to the operator stating the nature of the violation. 30
U.S.C. § 814(a).

[5] A violation is
S&S if it is of such nature as could significantly and substantially
contribute to the cause and effect of a health or safety hazard. 30 U.S.C. § 814(d).
A violation is properly designated as S&S if there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature. Cement Div., Nat’l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981).

[6] Unwarrantable
failure is defined as reckless disregard, intentional misconduct, indifference,
or a serious lack of reasonable care. Emery Mining Corp., 9
FMSHRC 1997, 2003 (Dec. 1987).

[7] Section 104(b)
of the Mine Act states that upon any follow-up inspection of a mine, if a
violation has not been totally abated within the prescribed time, an inspector
shall determine the extent of the area affected by the violation and shall
promptly issue an order requiring the withdrawal of all persons from the area
until it is abated. 30 U.S.C. § 814(b).

[8] Section 104(d)
of the Mine Act is similar to 104(b) in that it requires the inspector to issue
an order withdrawing all persons from the affected area, but it pertains to
violations that are S&S and/or an unwarrantable failure to comply with a
health or safety standard rather than violations that constitute a failure to
abate a prior violation. 30 U.S.C. § 814(d).

[9] Any order
issued under any subsection of Section 104 remains in effect until it is
modified, terminated or vacated by the Secretary or his authorized
representative or by the Commission or courts. 30 U.S.C. § 104(h).

[10] Commission Rule
20 provides all contests of citations or orders issued under Section 104 must
be filed by the operator within 30 days of receipt. 29 C.F.R. § 2700.20.

[11] High negligence
is appropriate when an operator knew or should have known of the violative
condition or practice, and there are no mitigating circumstances. 30 C.F.R. § 100.3,
Table X.

[12] Moderate
negligence is appropriate where “the operator knew or should have known of the
violative condition or practice, but there are mitigating circumstances.” Id.

[13] Jeppesen
questioned the need for a guard on the equipment because he alleged that it was
over seven feet above the ground. Tr. 174. However, the bottom part of the
guarded area was clearly within easy arm’s reach when standing on level ground.
Tr. 175-77; Ex. S-14e photograph 344. The issue is, however, moot at this time
as Jeppesen admitted to this violation in the December 11, 2013 settlement
order referenced herein. Ex. S-37.

[14] Jeppesen questioned
whether the shaft required a guard. However, the underlying violation was
admitted by him and included in the December 11, 2013 settlement agreement and
is therefore final. Tr. 233-34; Ex. S-37.

[15] The proper code
section for this violation is § 56.4201(a)(2). However, the narrative portion
of the citation clearly defines the violation and it was admitted by Jeppesen
in the earlier settlement order. Ex. S-37.

[16] As a reason for
not having the inspections done, Jeppesen claimed he had not been operating the
mine from July through October 2012. Tr. 266. However, he documented performing
workplace examinations in July, August and September of that year. Tr. 269-71. Additionally,
he conceded this violation in the settlement agreement. Ex. S-37. His claim is
not credible.

[17] Jeppesen
admitted that Alan Jeppesen performs work for him at the mine and is paid
$85.00 per hour for his work. Jeppesen is therefore required to complete the
task training for Alan as well as himself.

[18] This
information is taken from the U. S. Department of Labor’s Mine Data Retrieval
System at http://www.msha.gov/drs/ASP/MineAction.asp.