Secretary of Labor v. Bussen Quarries, Inc.

Plain-English summary

A lead blaster moved a pump cart near the unmarked edge of a 70-foot limestone highwall without using fall protection. The ALJ inferred from the cart's position and handle direction that he had worked within several feet of the edge, and she affirmed the citation as S&S and highly negligent. Commissioners Mary Lu Jordan and Robert F. Cohen Jr. would uphold those findings because the inference and credibility determinations were supported by the record and the exposed fall would likely be fatal. Acting Chairman William I. Althen and Commissioner Michael G. Young would vacate because no witness saw a miner in danger of falling and they viewed the inference as speculation influenced by nonbinding MSHA guidance. The evenly divided Commission left the ALJ's decision standing as if affirmed.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.15005
• Outcome: The S&S fall-protection citation and high-negligence finding remained in place because the Commission divided 2-2.
• Key point: An evenly divided Commission leaves the ALJ's decision standing, even when the Commissioners issue opposing views on whether substantial evidence supports the violation.

Full text (FMSHRC public release)

FEDERAL
MINE SAFETY AND HEALTH REVIEW COMMISSION

1331
PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON,
D.C. 20004-1710

SECRETARY OF LABOR,                             :

MINE SAFETY AND HEALTH                    :

ADMINISTRATION (MSHA)                       :

:        Docket No. CENT 2015-385

v.                                              
 :                         

:

BUSSEN QUARRIES, INC.                                     
 :

BEFORE: Althen, Acting
Chairman; Jordan, Young, and Cohen, Commissioners

DECISION

BY THE COMMISSION:

This civil penalty proceeding arises under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012)
(“Mine Act” or “Act”). The Department of Labor’s Mine Safety and Health
Administration (“MSHA”) issued a citation to Bussen Quarries, Inc., for
allegedly violating the requirement of 30 C.F.R. § 56.15005 that “[s]afety
belts and lines shall be worn when persons work where there is danger of
falling.” A Commission Judge affirmed the citation in all respects. 37 FMSHRC
2786 (Dec. 2015) (ALJ). Bussen is appealing the Judge’s violation, significant
and substantial (“S&S”), [1] and high negligence determinations. [2]

The Commissioners are evenly  divided  on whether to affirm the Judge’s
decision in its entirety, or to reverse the finding of violation. The effect of
the  split  decision is to
allow the Judge’s  decision to  stand as if affirmed . Pa. Elec. Co. ,  12 FMSHRC 1562, 1563-65 (Aug. 1990),  aff’d , 969 F.2d 1501 (3d Cir. 1992).

I.

Factual and Procedural Background

The
alleged violation took place on December 2, 2014, at Bussen’s limestone mine in
Missouri. Miners would routinely drill bore holes into what was known as the
“State Ledge” highwall there, pump water out of the holes as necessary, and
then use explosives in the holes to blast through the limestone and rock.

Bussen’s
practice was to drill blasting holes no closer than eight to nine feet from the
highwall’s edge. MSHA has developed a power point program for section 56.15005
defining a Fall Hazard Zone requiring a tie off as working within six feet of
the crest. The operator’s stated policy was that miners were to tie off when
within seven feet. [3]
There is no dispute regarding the danger of the 70-foot dropoff from the edge
of the highwall in question.

On
December 2, a blasting crew of four individuals was atop the highwall. Prior to
loading explosive shots into previously drilled holes, the crew expected to
have to pump water out of least some of the holes. Accordingly, one of the
members of the crew had driven a truck carrying a pump, mounted on a wheeled
cart, to the site. David Becker, the lead blaster on the crew, unloaded the
pump cart. Before much longer, however, another truck, carrying bags of
blasting powder, arrived. Consequently, Becker moved the pump cart out of the
way, repositioning it so that the other crew members could quickly unload the
bags of powder.

Shortly
thereafter, MSHA Inspector Gary Swan reached the top of the highwall. Swan
observed that the pump cart was approximately four and one-half feet from the
edge of the highwall, with the cart’s curved handles pointed towards the edge. Swan
approached Becker, who was checking for the presence of water in the holes, and
told him that he wanted to discuss the placement of the pump. Upon hearing
this, Becker reached for the pump, pulling it closer to the line of drill holes
and spinning it so that the handles no longer faced the highwall. Tr. 19-22, 79;
Gov’t Ex. 1, at 3 (photo of pump after it was so moved, with annotation
indicating its prior placement).

When Swan asked
about fall protection, Becker told him that he had not worn it when moving the
pump. Becker did say that fall protection was available in the truck that had
brought the pump. Tr. 23. Swan determined that the location of the pump “could
put a person using the cart approximately 2 to 3 feet from the edge of the
highwall with their [sic] back to the edge. This practice exposes miners to a
fall hazard.” Gov’t Ex. 1, at 1. Because fall protection had not been used,
Swan issued Citation No. 8860004 for an alleged violation of section 56.15005. Id .
The citation stated the condition was S&S and the result of high negligence
on the part of the operator. Id . The Secretary proposed a civil penalty
in the amount of $6,300.

In her decision,
the Judge refused to credit Becker’s hearing testimony on a number of points. She
instead agreed with the Secretary that the initial repositioning of the cart,
with its handles pointing towards the highwall edge, indicated that at some
point Becker likely was between the cart handles and the edge of the highwall,
less than four and one-half feet away from it, without having been tied off. [4]
The Judge further found that Becker or other members of the crew “could” have
used the pump where it was located near the edge of the highwall, and may have chosen
to do so without wearing fall protection. Accordingly, she found that a
violation of section 56.15005 had been established, given the danger of falling
posed to miners by being so close to the edge of the highwall. 37 FMSHRC at
2788-89.

The Judge also affirmed the S&S
allegation. She found that the violation of section 56.15005 contributed to a
hazard, in that it presented the danger of a miner tripping and falling from
the unmarked edge of the highwall while either using the pump or moving it to
or from another location, all without the benefit of fall protection. The Judge
concluded that there was a discrete hazard created by the violation and that the
hazard was reasonably likely to result in an injury. She also concluded that
the injury suffered in a 70-foot drop from the highwall would almost certainly
be fatal. Id . at 2790-91.

The
Judge additionally upheld the high negligence allegation, finding that the
operator had been put on notice by MSHA of what is expected of it with regard
to section 56.15005 and concluding that a violation of the standard was thus indicative
of a significant lack of care. She further found that Becker had stated to Inspector
Swan that he was in charge of the operation that morning and through his
actions indicated that he was aware that the pump was too close to the highwall
edge. The Judge also found it significant that despite the operator’s policy on
fall protection in the danger zone being even more stringent than MSHA’s
policy, and that a few months prior to the citation it had conducted a safety
meeting with miners at which fall protection had been discussed, the pump had nevertheless
been placed by Becker so obviously close to the edge. Id . at 2791-92.

On review, Bussen
contends that the Judge’s conclusions on the fact of violation, its S&S
nature, and the operator’s high negligence are not supported by substantial
evidence.

II.

Separate Opinions

Commissioners
Jordan and Cohen, writing in favor of affirming the Judge’s decision as
supported by substantial evidence with respect to each of the three issues:

A.        Violation

We conclude that
substantial evidence [5]
supports a finding of violation in this instance. We would affirm the Judge’s
conclusion that David Becker’s positioning of the pump cart during the
unloading of the powder truck placed him less than four and one-half feet from
the highwall’s edge without fall protection.

The Judge’s
conclusion that the standard was violated is based primarily upon her finding
that “it seems most likely that Becker pushed the pump by its handles rather
than carrying it or pushing or pulling it from the side opposite the handles,”
and thus the handles pointing towards the highwall edge indicate that he was
between the pump cart and the highwall edge.         37 FMSHRC at 2789. The Commission
has held that a violation may be proven through inferences drawn from indirect
evidence so long as the inference is reasonable. See, e.g., Jim Walter Res., Inc. ,
28 FMSHRC 983, 989 (Dec. 2006) (stating that inferences drawn from indirect
evidence are reasonable when there is “a logical and rationale connection
between the evidentiary facts and the ultimate fact inferred”) (citation
omitted). Here the Judge’s inference is a commonsense view of how the
cart in question had been placed in the position where Inspector Swan observed
it, and is thus is a reasonable inference. Consequently, it was well within the
Judge’s purview as the trier of fact to conclude that, at some point, Becker had
to have been within three to four feet of the edge of the highwall with his
back to it. [6]
See 37 FMSHRC at 2791; Donovan ex rel.
Chacon v. Phelps Dodge Corp. , 709 F.2d 86,
92 (D.C. Cir. 1983) (Commission may not substitute its conclusion regarding the
facts from the record for that reasonably reached by the Judge).

The Judge’s
decision is also supported by her comparative credibility findings. At the
hearing, there was a significant difference in the testimony of Becker and Inspector
Swan as to Becker’s actions. Becker explained that, in order to initially move
the pump cart away from the back of the powder truck, he grasped the pump
cart’s handles to spin the cart so that it was pointing in the opposite
direction. He maintained that this action resulted in the handles pointing
toward the highwall edge while he remained more than seven feet away from the
edge. Tr. 74-76.

Becker further
testified how he had retrieved the pump cart, with its handles pointing towards
the highwall edge, without having to walk behind the handles, and thus be near
the highwall edge with his back to it. He explained that he was able to grasp
the pump and spin it back without moving closer to the edge. Tr. 76. Further,
he stated that he did so in order to expressly demonstrate to the recently arrived
Swan how the pump cart could be moved by a miner while standing more than seven
feet away from the edge. Tr. 79-81.

Swan, however, told
a different story. He testified that as soon as he started questioning Becker
on why the pump was so close to the highwall edge, Becker quickly grabbed it and
moved it to be near the drill holes, and thus more than seven feet away from
the edge. Tr. 20-21. In Swan’s view, if he had not been there, a miner would
have retrieved the pump cart by placing himself between the handles and the
highwall edge and thus be within the area in which fall protection was required
to be used. Tr. 32-33.

Consequently,
Swan also did not believe Becker’s explanation of how he had originally positioned
the pump cart. Instead, Swan was persuaded by the proximity of the cart and its
handles pointing towards the highwall edge to conclude that a miner must have
been less than six feet from the highwall edge to position the cart where he
saw it, and thus working where there is a danger of falling in violation of
section 56.15005, since fall protection had admittedly not been worn. Tr. 20,
22-24, 26, 27.

The operator
points to Becker’s testimony in urging that the Commission find that
substantial evidence does not support the Judge’s decision on the violation. However,
the Judge refused to credit Becker’s account with regard to how the pump cart
came to be positioned four and one-half feet from the highwall’s edge, and how
it would have been retrieved had Swan’s arrival not prompted Becker’s quick
method of retrieving it. She instead credited Inspector Swan with respect to a
miner having to be close to the highwall edge to move the cart.        37
FMSHRC at 2788-89.

While Bussen
argues that the Judge erred in these credibility findings, we see no compelling
reason to disturb the Judge’s credibility determinations. The Commission has
recognized that a Judge’s credibility determinations are entitled to great
weight and may not be overturned lightly. Farmer v. Island Creek Coal Co. ,
14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co. , 3 FMSHRC 2767,
2770 (Dec. 1981). Here, the Judge was required to choose between the competing explanations
of Becker and Swan, after having had the opportunity to hear the testimony of
both and observe their demeanor as witnesses. [7]
See, e.g., Sec’y of Labor v. Keystone Coal Mining Corp. , 151 F.3d 1096,
1106-07 (D.C. Cir. 1998).

The Judge was
also dissuaded from crediting Becker’s account by what he did upon Swan’s
arrival. Rather than concluding that Becker had by his actions established that
he could reposition the cart and remain more than seven feet away from the edge,
the Judge inferred that those actions indicated that “Becker was aware that the
pump was too close to the edge and quickly moved it before the inspector could
do anything further.” 37 FMSHRC at 2791. This is a reasonable inference for the
Judge to have drawn under the circumstances.

In summary, we
conclude that substantial evidence supports the Judge’s determination that
Bussen violated section 56.15005. [8]

B.        S&S

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
Coal Co. , 6 FMSHRC 1 (Jan. 1984), 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. FMSHRC , 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v.
Sec’y of Labor , 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria).

Given our
conclusion that the Judge’s finding of violation is supported by substantial
evidence with respect to Becker’s repositioning of the pump, and how he or any
other miner would have retrieved it in the absence of inspector Swan, we limit
our analysis under Mathies to those facts. Because that is sufficient to
constitute a violation of section 56.15005, the first Mathies step is
satisfied.

Since the issuance
of the Judge’s decision and the submissions of the parties’ briefs, the
Commission has further explained how the second and third steps of Mathies
should be applied. Newtown Energy, Inc. , 38 FMSHRC 2033, 2037-40 (Aug.
2016); ICG Illinois, LLC , 38 FMSHRC 2473, 2475-76 (Oct. 2016). In our
view, the Judge’s analysis of the violation under Mathies steps two and
three is consistent with our decisions in those recent cases.

Turning to the
second step of the Mathies test, the inquiry here was whether the lack
of fall protection was reasonably likely to lead to the danger of falling (the
hazard expressed in section 56.15005). [9]
Clearly the 70-foot dropoff from the highwall here is a danger to which the
tie-off requirement of section 56.15005 is directed.

MSHA has taken
the position that, in highwall work areas, a danger arises when a miner takes a
position six feet or less from the edge of the dropoff or unstable ground or
footing. Gov’t Ex. 5, at 7 (copy of MSHA’s Safe Practices Near a Highwall Crest
Powerpoint Presentation). MSHA has identified a number of reasons for how a
miner could end up going over an edge when working within six feet of it,
including slipping or tripping due to weather conditions, boreholes, or cracks
in or clutter about the ground. In addition, in order to better help miners
keep their bearings when close to the edge, MSHA suggests that there be visual
warnings of the edge, or physical barriers to it. Id . at 6-14. Given
that the violation here involved a miner getting to within steps of the edge of
the highwall with his back to it, MSHA’s concerns are appropriately considered
in this instance.

Our S&S inquiry considers the violative conditions as they
existed prior to and at the time of the violation as well as how they would
have existed had normal operations continued. Mach Mining, LLC v. Sec’y of Labor ,
809 F.3d 1259, 1267 (D.C. Cir. 2016) (citations omitted). In normal
mining operations, there is always the potential for slipping and falling, and it
was exacerbated in this instance by, as the Judge found, the presence of rock
dust on the ground. 37 FMSHRC at 2791; Gov’t Ex. 1, at 3-4 (photos of highwall edge
area). In addition, she was correct to cite the lack of ground markings or
other warnings of or barriers to the edge, which had been somewhat obscured by
the rock dust. [10]
37 FMSHRC at 2788, 2791; Gov’t Ex. 1, at 3-4. Finally, the inspector testified
as to the presence of the shavings piles that had resulted from the prior drilling
of the bore holes, and over which a miner could stumble while working close to
the edge. Tr. 25.

Hence, there
existed a reasonable likelihood that Becker, or any other miner repositioning
and then retrieving the pump cart within two to three feet of the edge of the
highwall with his back to it, could slip, trip, stumble or inadvertently step
over the unmarked edge — precisely what fall protection is designed to protect
against. Regarding the third step of the Mathies test, it is reasonably
likely that the hazard (a 70-foot fall) would result in injury. In addition,
there is no dispute regarding the severity of the injuries that would result
from a 70-foot plunge, so the fourth step was satisfied as well. Consequently,
we would affirm in result the Judge’s S&S determination.

C.        Negligence

Bussen
contends that the Judge erred in finding high negligence when the operator’s
fall protection policy was even more stringent than that of MSHA, and it had
trained its miners to follow that policy. Citing Excel Mining LLC , 497
F.App’x 78, 79 (D.C. Cir. 2013), Bussen attempts to rely upon 30 C.F.R. Part
100, MSHA’s regulations governing its proposal of civil penalties. Bussen maintains
that, under 30 C.F.R. § 100.3(d), the existence of a single mitigating circumstance
prevents a finding of high negligence in connection with a violation, even
where the operator knew of the violation.

However,
the D.C. Circuit has since held that the Commission, in assessing final civil
penalties under the Act, [11]
is not bound by Part 100, including the regulations defining “negligence” and
setting forth MSHA’s various degrees and descriptions of negligence. Mach
Mining , 809 F.3d at 1263-64 . [12]
Instead of applying section 100.3(d), the Commission uses “a traditional
negligence analysis.” Id . at 1264; The American Coal Co. , 39
FMSHRC 8, 14 (Jan. 2017). In determining the degree of negligence, the Judge
should consider “what actions would have been taken under the same
circumstances by a reasonably prudent person familiar with the mining industry,
the relevant facts, and the protective purpose of the regulation.” JWR Res.,
Inc. , 36 FMSHRC 1972, 1975 (Aug. 2014). In addition, because Commission
Judges are not bound by Part 100 when considering an operator’s negligence,
they are not limited to a specific evaluation of potential mitigating circumstances.
Brody Mining, LLC , 37 FMSHRC 1687, 1702-03 (Aug. 2015).

Although
the Judge, in concluding that high negligence had been established here, referred
to the Part 100 negligence definitions, her analysis of the record evidence regarding
the operator’s negligence conforms with a “traditional negligence analysis,”
because she “consider[ed] the totality of the circumstances holistically.” Brody ,
37 FMSHRC at 1702. Based on Becker’s quick move to pull the pump away from the
edge after Inspector Swan voiced concern about the situation, the Judge found
that Becker was aware that the pump cart was positioned improperly in the
danger zone. She further found that the edge of the highwall was an obvious
danger to any persons in the area, and Becker therefore should have been
alerted to the nearby danger. 37 FMSHRC at 2791-92. The Commission has held
that high negligence can be found even when the violation is the result of a
momentary error, when the error is by a supervisor or other agent of the
operator and the violation is obvious. See American Coal , 39 FMSHRC at
14, 20, 22-23; see also Topper Coal Co. , 20 FMSHRC 344, 350 (Apr.
1998) (willful violation constitutes high negligence).

Bussen
contends that, because Becker was a miner paid an hourly rate, any negligence
on his part should not be attributed to Bussen. The Secretary responds that
Becker’s status in the crew meant that he was acting as Bussen’s agent in this
instance, and thus his negligence was attributable to it. See generally Martin
Marietta Aggregates , 22 FMSHRC 633, 637 (May 2000) (citing cases).

The
Judge concluded that Becker was “in charge” of the crew working atop the
highwall that morning, and she considered that fact in her high negligence
determination. 37 FMSHRC at 2787, 2791-92. While there is not a great deal of
record evidence on this issue, it is undisputed that Swan asked Becker who was
“in charge” and elicited a positive response from Becker. Becker informed Swan
that he was the miner who was oldest and with the most experience in the crew (Tr.
19, 26), and he testified that his official title was “lead blaster.” Tr. 69. In
contrast, the operator made no attempt to establish that another individual was
supervising the crew that morning, and in its post-hearing brief did not even address
the high negligence allegation, and thus Becker’s status in the crew. We agree
with the Secretary that, for purposes of the rather unique circumstances of
this case, Becker qualified as an agent of the operator for purposes of
attributing his negligence to the operator in this instance.

In
any event, we do not read the Judge’s reliance on Becker’s role relative to the
remainder of the crew to be the entire basis for establishing that he was an
agent of the operator in this instance. She also cited Becker’s status as the
lead blaster as illustrative in finding that, despite the operator’s safety and
discipline policies, it apparently had not succeeded in impressing upon its
miners the importance of using fall protection when near a highwall’s edge.  See
37 FMSHRC at 2792.

Bussen
contends that the Judge should have given its safety and discipline policies
dispositive weight and reduced the level of negligence. However, it was not error
for the Judge to decline to do so. Not only did Becker not adhere to the fall
protection policy in this instance, but the evidence is that he was not disciplined
by Bussen for failing to do so. Tr. 50, 83.

The operator
also objects to the weight the Judge gave to the lack of warning markers or
barriers at the highwall’s edge in affirming the negligence as high in this
instance. It contends that, in so doing, the Judge adopted requirements not
imposed by section 56.15005. We disagree with this reading of the Judge’s analysis.
Her consideration of this evidence was more of a finding that such markers or
barriers would have mitigated the operator’s negligence in this instance, as
those are measures MSHA recommends but does not require for highwall operations.
Gov’t Ex. 5, at 8. Their absence explains in part why the Judge was not persuaded
to reduce the level of Bussen’s negligence.

Accordingly,
we conclude that the Judge’s high negligence finding is supported by substantial
evidence in this instance, and thus would affirm it.

D.        Conclusion

For the foregoing
reasons, we would affirm the Judge’s decision that Bussen violated section
56.15005, that the violation was S&S, and that it resulted from high
negligence.

/s/
Mary Lu Jordan

Mary Lu Jordan, Commissioner

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

Acting Chairman Althen and
Commissioner Young, writing in favor of vacating the citation:

The
Judge inferred a miner, Becker, placed himself in danger of falling. To do so,
she disregarded Becker’s sworn testimony explaining how he placed a moveable
pump four and a half feet from the crest of the highwall, failed to contend
with his physical demonstration to the inspector how this had been done, and
then inferred — contrary to these facts of record — that the miner must have
stood with his back to the highwall based merely on the direction of the pump’s
handles. Our task is to determine if that inference was reasonable in light of
the totality of the evidence presented at the hearing and the analysis
presented in the Judge’s decision.

As set forth
below, the Judge’s inference that Becker placed himself in danger of falling,
standing alone, is not supported by substantial evidence and therefore, is not
reasonable. The miner’s sworn testimony, his demonstration of his action, the
evidence at the scene, and plain common sense contradict the Judge’s inference.
Moreover, the Judge further erred by basing the inference on the operator’s
failure, in the Judge’s view, to comply with a host of non-mandatory safety
suggestions made in informal MSHA presentations.

Discussion

A.        The Judge
failed to analyze the violation against the requirements of the standard .

We
begin with the regulation the Secretary alleges Bussen violated. 30 C.F.R.

§ 56.15005 states: “Safety
belts and lines shall be worn when persons work where there is danger of
falling.” In order to prove a violation of this standard, the Secretary must
prove three elements: a person was (1) working (2) where there was a danger of
falling (3) without wearing safety equipment. While the Judge below focused
most of her opinion on possible actions and hazards that she speculated might
arise in the future and on conditions that she believed to have been inadequate
in light of informal guidance promulgated by the Secretary, the law imposes on
the Secretary the burden of establishing each element of this violation, including
the fact that a miner actually worked where there was a danger of falling. See
Cathedral Bluffs Shale Oil Co., 6 FMSHRC 1871, 1874-75 (Aug. 1984); [13]
cf. W.G. Yates & Sons Constr. Co., Inc. v. OSHRC , 459 F.3d 604,
607 (5th Cir. 2006) (stating that all circuits considering the question agree
that the Secretary has the burden of establishing each element of a violation
under the Occupational Safety and Health Act).

When
we examine the decision in its entirety, we see the Judge failed to measure the
operator’s conduct against the standard or to hold the Secretary accountable to
his burden of proving a violation of its provisions. Instead, the Judge
repeatedly relies on speculation and evaluates the operator’s mine site actions
against suggestions made in an MSHA informal PowerPoint to infer dangers of
falling. 37 FMSHRC at 2788; s ee also Gov’t Ex. 5, at 7.

The Judge
accepted into evidence an MSHA PowerPoint presentation, “Fall Prevention on
Highwalls.” The presentation endorses the concept of a “Fall Hazard Zone” —
that is, a space six feet or less from a stable crest or unstable ground. See
Gov’t Ex. 5, at 7. The operator in this case similarly recognizes the concept
and had voluntarily established a seven-foot hazard zone from the edge of the
highwall. 37 FMSHRC at 2788.          

The concept of a
six-foot “fall hazard zone” is certainly a beneficial suggestion. However,
applying the six-foot “fall hazard zone” as if it were a mandatory standard
upon which one may ground a strict liability violation is inconsistent with the
actual regulation language promulgated by the Secretary and thus is
impermissible. A violation of section 56.15005 is shown when the Secretary
establishes each of the elements of the violation, i.e., whether the Secretary
proved that in the specific circumstances of the citation it was more likely
than not that a miner was working where there was a danger of falling and was
not wearing a lifeline. The Secretary did not introduce any evidence for the
proposition that every incursion within six feet of a crest creates a danger of
falling. [14]

Nonetheless,
the Judge repeatedly refers to the PowerPoint suggestions and opines that the
failure to follow the suggestions put miners in danger of falling. The Judge
draws a number of unreasonable and unsupported inferences.

The Judge below
simplified the Secretary’s burden of proof by dispensing with it: “I agree with
the Secretary that the position of the pump together with the absence of any
warnings near the edge created a danger of falling.” 37 FMSHRC at 2788. Even
were this statement true, it is wholly irrelevant to whether any miner actually
was working where there was a danger of falling, an essential element of an
alleged violation. The absence of warnings is not a violation and is not
relevant if there were no miners working in an area where they would be in
danger. There is no testimony from any witness that any miner worked near the
edge of the highwall.

Essentially, the
Judge finds that, because current mine practices did not follow all MSHA
informal guidance, it was likely a miner might in the future be placed in a
danger of falling area. In doing so, the Judge applies the principle of
“continued normal mining operations” that makes an existing violation S&S
if based upon events likely to occur if the violation continued during such
operations. However, there is no basis to cite inchoate circumstances not
constituting a violation. If no miner is in danger of falling, MSHA cannot cite
a violation of section 56.15005 based upon a belief that in the future a miner
might come into a danger of falling without a lifeline. There simply is no
basis in the Mine Act to cite an operator and assess a penalty for violations
that have not yet occurred but that the inspector, Secretary, or Judge
speculates may happen in the future. The Judge errs fundamentally in finding a
violation based upon speculation that the operator “created a danger of
falling.” [15]

The Judge also
found that the routine and necessary placement of blasting boreholes created a
danger of falling, stating that “[t]he bore holes had been drilled between
eight and nine feet from the highwall edge, which itself would make it easy for
a miner to come within six feet of the edge, given there was no demarcation
line for reference.” 37 FMSHRC at 2788. There are two problems with this
finding. First, the boreholes themselves at eight feet provided a line of
demarcation. Miners would know that staying beyond them would keep them more
than seven feet from the edge of the highwall.

The
second problem is that the Judge relied on best-practices guidance to impose
additional responsibilities on the operator, without citing any special hazards
here. In fact, the photographs of the highwall show a fairly clean and level
area near the edge. The Judge nonetheless faults Bussen for not providing
signage or markings not required, even in the absence of a showing that such
signage was necessary.

The Judge did
discuss the miners working in the area. However, she never showed that any of
them had at any point worked where they were in danger of falling. Her
foundation is pure speculation. She noted that while Becker stated that he was
the only one who worked with the pump, three other miners in the area “had
every opportunity to use or move the pump.” Id. at 2788-89. The Judge
“agree[d] with the inspector’s reasonable inferences that these other miners could
have used or moved the pump from its location near the edge.” Id. at
2789 (emphasis added). This is complete speculation.

Further, the
Judge again misread the standard to impose liability for the mere positioning
of a piece of equipment. Her musings on the potential for such work might be
relevant to an S&S analysis if miners had been shown to have worked in the
area. But the evidence is devoid of any such evidence. Becker testified that he
was the only miner to use the pump and no witness testified otherwise. The
Judge simply speculated that other miners might go into the non-mandatory Fall
Hazard Zone. Her inference that Becker had done so is groundless and her
speculation that some other miner might do so in an imagined, hypothetical
future is irrelevant to a violation of the standard.

The Judge further
speculated that no one would have put on fall protection “to perform the simple
task of moving the pump.” [16]
Id. at 2789. Not only is the Judge’s opinion speculative, but it also
ignores the evidence, supported by the inspector’s testimony, that the pump
could have been moved without coming within six feet of the crest of the
highwall. Becker testified that he had done so. In fact, he demonstrated the
action by easily and quickly moving the pump, while standing next to the
inspector, Tr. 40-41, without exposing himself to a danger of falling. The
evidence thus directly refutes the Judge’s supposition that a miner had to
encounter a danger of falling to return the pump.

Accordingly, the
Judge erred by effectively imposing requirements not specified in the
regulation. In turn, using this view, she simply inferred, contrary to Becker’s
testimony, that Becker put himself in danger of falling.

B.        The Judge’s inference that Becker placed
himself in danger of falling without wearing a lifeline is not supported by
substantial evidence and is unreasonable .

Of
course, credibility determinations are entitled to respect, and we generally
defer to credibility determinations of ALJs. Farmer v. Island Creek Coal Co. ,
14 FMSHRC 1537, 1541 (Sept. 1992). However, credibility determinations are not
beyond review. The Eighth Circuit has long held that a contention grounded on
speculation and unsupported by substantial evidence must fail as a matter of
law. Armour & Co. v. Harcrow , 217 F. 224, 228 (8th Cir. 1914); NLRB
v. Monroe Auto Equip. Co ., 368 F.2d 975, 980 (8th Cir. 1966); J.E.K.
Indus., Inc. v. Shoemaker , 763 F.2d 348, 353 (8th Cir. 1985).

Thus,
while our colleagues correctly note that we do not lightly overturn an ALJ’s
credibility determinations, slip op. at 5, neither may such determinations be made
lightly. An ALJ’s credibility determination must be supported by substantial
evidence. See Buckler v. Bowen , 860 F.2d 308, 311 (8th Cir. 1988)
(citing Hardin v. Heckler , 795 F.2d 674, 676 (8th Cir. 1986)) (“[An] ALJ
may disbelieve a claimant’s allegations of pain, but credibility determinations
must be supported by substantial evidence.”). 

The
Secretary’s contention cannot rest on a mere scintilla — here, the position of
the cart without any evidence other than Becker’s testimony as to how it got in
that position — as a basis for speculation. The Secretary’s argument in this
case would fail even on a motion for a directed verdict. At that stage,
“[t]here must be a conflict in the substantial evidence and not merely
speculation or conjecture. Plaintiff is not entitled to unreasonable
inferences, ‘or inferences at war with undisputed facts.’” J.E.K. Indus. ,
763 F.2d at 353 (citations omitted) (quoting Schneider v. Chrysler
Motors , 401 F.2d 549, 555 (8th Cir. 1968)).

Thus,
“if a credibility determination is unreasonable, contradicts other findings of
fact, or is ‘based on an inadequate reason, or no reason at all,’ [the court]
will not uphold it.” NLRB v. McCullough Envtl. Servs., Inc. , 5 F.3d 923,
928 (5th Cir. 1993) (quoting NLRB v. Moore Bus. Forms, Inc. , 574 F.2d
835, 843 (5th Cir. 1978)). The record must support a credibility determination.
This means that “[w]hen the decision of an ALJ rests on a negative credibility
evaluation, the ALJ must make findings on the record and must support those
findings by pointing to substantial evidence on the record.” Ceguerra v.
Sec’y of Health & Human Servs. , 933 F.2d 735, 738 (9th Cir. 1991). This
requirement follows from the “bedrock principle of administrative law” that
“[a] reviewing court can evaluate an agency’s decision only on the grounds
articulated by the agency.” Id.

Becker
testified under oath that, to move a pump out of the way of a truck delivering
explosives, he swung the pump from a location approximately seven feet from the
edge of the highwall to a location approximately within four and a half feet of
the edge of the highwall. Tr. 72. The pump handles faced toward the highwall. No
witness contradicted Becker, and miners verified that a truck delivering
explosives had arrived on the bench. Tr. 87, 94.

The
Judge never accounts for and in fact disregards this evidentiary record. She
appears to have based her wholly subjective view on a belief that Becker was
not telling the truth. She never explains her rationale, beyond a specious
assertion that it “seems most likely” that the cart in question was placed
there in a manner at variance with Becker’s sworn testimony and that it is “difficult
to imagine” how it could have been placed as he testified. 37 FMSHRC at 2789.

There
is no need for imagination. Becker provided a demonstration proving that
the cart could be moved without coming anywhere near the crest of the highwall
or in danger of falling. The most the Judge could have inferred was that Becker
might have been slightly closer than six feet from the edge of the highwall
briefly when he moved the cart out of the way. But, here, we have sworn,
uncontradicted testimony that not even this happened.

Furthermore,
Becker’s sworn testimony is corroborated by other evidence in the record. When
Swan, who had not seen Becker relocate the pump, approached, Becker took hold
of the pump and swung it back to a location more than six feet from the edge of
the highwall. Tr. 20, 41-42. In fact, the inspector’s notes corroborate that
Becker was able to retrieve the pump by swinging it around without approaching
the highwall, Tr. 20, and that Becker told Swan that he had placed the pump in
the same manner. Gov’t Ex. 1, at 2 (“The miner that put the cart in place
stated that he has fall gear in the truck but didn’t feel he needed it. Stated
that he swung the cart in place.”); see also Tr. 35-36 (inspector
confirming that his notes were accurate).

Becker’s easy
retrieval of the pump from a safe location demonstrates that he could move the
pump just as he testified. There is no evidence contradicting that ability. There
is no evidence to support a notion that by moving the pump toward the crest in
the same manner that he retrieved it, the handles could not end up facing the
highwall.            

Further, the
Judge does not deal with the common sense question of why a miner using the
handles to move the pump out of the way would back the pump toward the highwall
rather than push it toward the highwall. The pictures of the pump show the
wheels are located at the back of the pump so that a person could move it
forward or backward. Gov’t Ex. 1, at 3-4. The Judge does not explain her
finding that the miner backed toward the highwall and approached within two or
three feet of the edge with his back to the highwall when if a miner were using
the handles to roll the pump, it would make more sense to roll it toward the
highwall. Indeed, with respect to anyone working around the pump, thereby
coming closer to the highwall, the Inspector testified, “I’m not saying anybody
would do that.” Tr. 32. Similarly, under the Judge’s theory, in retrieving the
pump, the miner would have had to walk around the pump in order to push it away
from the highwall. None of this makes more sense — that is, it can be more
likely inferred that the miner moved the pump to its position and retrieved the
pump from its position in exactly the manner he physically demonstrated and
swore to in his testimony.

Not
only did the Judge not consider this obvious impediment to her assumption that
Becker pulled the pump toward the highwall, but she also did not consider her
own finding that there were no recent footprints near the edge of the highwall.
She noted that, “Swan noticed that there were older footprints
near the edge of the highwall, but they were covered in rock dust and he could
not tell how recently they had been made.” 37 FMSHRC at 2787 (emphasis added). [17] This raises
a question: if Becker did walk too close to the edge in order to place the cart
there with the handles facing toward the edge of the highwall shortly before
the inspector arrived, how did he get there without creating fresh footprints
in the dust that the Judge found to be on the bench? The weather was dry and
the bench was flat. Tr. 53; Gov’t Ex. 1, at 3-4. Although there was still
evidence in the dust of someone walking at that location several days before
(likely before firing the prior shot, Tr. 77-78), the Judge cites no evidence
in the record of any foot traffic near the highwall after those prior
footprints were made.

In sum, no
witness, including the inspector, observed any miner in, or close to, a
position where such miner was in danger of falling from the highwall. Indeed,
Becker and Swan agree on one fact: neither of them saw any miner working where
he would have been in danger of falling, as the standard requires.

This
consistency in the record should have proven fatal to the Secretary’s case. Yet
despite the absence of any evidence of an incursion near the highwall and
Becker’s demonstrated retrieval of the pump from a safe distance, the Judge
wholly discredited Becker’s testimony. 37 FMSHRC at 2788. The Judge did not
comment upon Becker’s demeanor, cited no impeachment, and relied on no evidence
that contradicts his testimony. It is entirely improper, as a matter of law,
for a Judge to disregard Becker’s sworn and demonstrated testimony, implying
that said testimony is untruthful, without citing anything more than a single,
inconclusive fact and drawing an inference contradicted by every other fact in
the record. [18]

Finally, the
Judge’s finding of high negligence encapsulates the defective findings and reasoning
throughout her decisions. The Judge concludes, “The miners testified that they stayed seven feet back from the edge, but I am skeptical given the location
of the holes, the location of the pump, and the fact that there were no warnings
to remind workers
to stay back.” Id . at 2792.
The boreholes were eight feet from the crest in a position where they had to
be for mining. Thus, the Judge cites three factors that are not
individually or collectively violative or negligent: (1) placement of the boreholes
in places necessary for mining as evidence of high negligence regarding a fall
standard, (2) placement of the pump although the placement was not a violation
and the pump was easily retrieved without creating any danger of falling, and
(3) failure to utilize the presence of non-mandatory signs even though
boreholes were present. 

The Judge’s
inference of a violation is thus unreasonable and refuted by the record. It
rests entirely upon the Judge’s articulated discontent with lawful mining practices
and her disregard of the Secretary’s burden of proof and the absence of any
evidence that might support that burden.

Conclusion

While a judge’s
credibility determination is usually entitled to great weight, we cannot defer
to a judge’s unreasonable and unreasoned decision to disbelieve a witness
without justification in the evidence. In turn, we cannot accept an inference
based upon the unreasoned discrediting of a witness, without discussion of
contradictory evidence, and without any basis in the evidence.

Because
the Judge's inference that a miner worked in an area where he was in danger of
falling without using fall protection is not supported by substantial evidence,
we would reverse the Judge and vacate the citation.

/s/
William I. Althen

William
I. Althen, Acting Chairman

/s/
Michael G. Young

Michael
G. Young, Commissioner

[1] The S&S terminology is taken from section 104(d)(1)
of the Act, 30 U.S.C.

§
814(d)(1), which distinguishes as more serious any violation that “could
significantly and substantially contribute to the cause and effect of a . . .
mine safety or health hazard.”

[2] In its petition for discretionary review, which it
adopted as its opening brief, Bussen requested that the Commission hear oral
argument on its appeal. Commission Procedural Rule 77 specifies that any oral
argument request is to be made by separate motion. 29 C.F.R.       § 2700.77.
The Commission nevertheless considered Bussen’s request. It decided, however,
that oral argument would not be ordered.

[3]
To tie off atop a highwall, Bussen miners would
use a line attached to a “T” bar or spike dropped into a drill hole.

[4] Specifically, the Judge refused to credit Becker’s
testimony (1) that at no point was he within seven feet of the edge on the
morning of the citation; (2) that he was the only one who would have used the
pump that day; (3) that he would not have used it in the position four and one-half
feet from the edge; and (4) that he would not have crossed the operator’s seven-foot
boundary beyond which fall protection was required, in order to retrieve the
pump even if Inspector Swain had not been present. 37 FMSHRC at 2788-89.

[5] When reviewing a Judge’s factual determinations, the
Commission is bound by the terms of the Mine Act to apply the substantial
evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). “Substantial evidence” means
“‘such relevant evidence as a reasonable mind might accept as adequate to
support [the Judge’s] conclusion.’” Rochester & Pittsburgh Coal Co. ,
11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB ,
305 U.S. 197, 229 (1938)).

[6] Our colleagues argue that the Judge’s reference to
the six-foot “fall hazard zone” provided in an MSHA PowerPoint presentation was
error because the Judge considered this informal guidance as part of the
mandatory legal standard. Slip op at 12. We disagree. Although the Judge
referred to the informal guidance, her essential finding was that a miner’s
approach to within three or four feet of a 70-foot cliff created a “danger of
falling,” in violation of the standard. See 37 FMSHRC at 2788-91.

[7]
The Judge also noted Swan’s extensive mining
experience. Swan not only had been an inspector for seven years but, prior to
that, had worked 30 years in the mining industry, primarily with surface mines,
including in supervisory positions. 37 FMSHRC at 2787.

[8]
Although the citation alleges that the pump was being used from its positon
near the highwall edge (Gov’t Ex. 1, at 1), the Secretary failed to establish
that was the case. Indeed, the evidence is largely to the contrary. In
particular, the record seems clear that the pump had just been delivered to the
highwall and had not even been fully assembled yet. Tr. 25, 42-43.
Consequently, we view the Judge’s findings on the potential use of the pump to
be no more than speculation. We note that the Secretary in his brief made no
attempt to defend those findings, going as far as to characterize the issue as
“irrelevant” on review. S. Br. at 10. Consequently, our conclusion that the
citation should be affirmed is based solely on the placement of the pump cart
in the position where Inspector Swan found it. Thus, our colleagues’ emphasis
on what miners other than Becker might or might not have done, slip. op at
12-14, is not essential to our analysis of the violation given the Judge’s
finding that Becker’s actions violated the standard.

[9] In ICG Illinois , we stated separately that we
“would hold that a violation sufficiently ‘contributes’ if it is at least
somewhat likely to result in, or could result in, a safety hazard.”   38 FMSHRC
at 2476 n.5. We do not find the qualitative difference between “reasonably
likely” and “somewhat likely” to matter in this case, where a miner lacking
fall protection was so close to a deadly dropoff.

[10] The operator argues that the lack of warning markers
or barriers should not be taken into account, because the inspector did not
cite it for a violation of 30 C.F.R. § 56.20011. That standard provides in
pertinent part that “[a]reas where health or safety hazards exist that are not
immediately obvious to employees shall be barricaded, or warning signs shall be
posted at all approaches.” A highwall edge, however, would seem to be
immediately obvious from the vantage point of an individual “approaching” it. The
measures noted to be lacking in this instance would instead serve as an
additional reminder to miners busy at work in the area of the proximity of the dangerous
edge just a few feet away.

[11] Negligence is one of the six statutory penalty
criteria the Commission is to consider in assessing civil penalties pursuant to
section 110(i) of the Act, 30 U.S.C. § 820(i).

[12] Commissioner Cohen has explained why it is
inappropriate for the Commission to apply the definitions contained in Table X
of 30 C.F.R. § 100.3(d) in defining degrees of negligence. In particular, a
finding of “high negligence” should not be precluded on the basis of a single
mitigating circumstance. Hidden Splendor Res., Inc. , 36 FMSHRC 3099,
3105-09 (Dec. 2014) (Comm’r Cohen, concurring).

[13] The Court of Appeals for the D.C. Circuit reversed
and remanded the Commission’s decision vacating the citation in Cathedral
Bluffs . Brock v. Cathedral Bluffs Shale Oil Co. , 796 F.2d 533 (D. C.
Cir. 1986). However, the Court’s decision was grounded on a holding that the
enforcement guidelines at issue did not establish binding norms for determining
when independent contractors could be cited. Id. at 537-39. Indeed, the
Court found it “noteworthy that the Secretary took pain to exclude the
enforcement guidelines from the final rule, and directed that they not be
published with the rule in the Code of Federal Regulations.” Id. at 539.
In contrast, the elements at issue here appear in the text of a
duly-promulgated, mandatory safety standard. The Commission’s holding that the
Secretary is required to prove all of the elements supporting a citation, and
the logic supporting our holding that the Secretary failed to do so in Cathedral
Bluffs , were undisturbed by the Court of Appeals.

[14] As noted, the Secretary expressly stated the
PowerPoint was not an official interpretation of the standard. Consequently,
deference is not required or appropriate under either Auer v. Robbins ,
519 U.S. 452 (1997), or Skidmore v. Swift & Co. , 323 U.S. 134
(1944).

[15]
The Judge also relied upon page eight of the
PowerPoint, which suggests using visual warnings and ground markings (signs,
tape, cones, boulders, paint, or chalk) and physical barriers (berms, boulders,
fencing, etc.) “to warn miners when they are approaching an edge.” Id. at
2788 (citing Gov’t Ex. 5, at 8). The Judge applied the Fall Hazard Zone and
suggestions about visual warnings as if they were mandatory standards and
faulted Bussen for failing to implement the visual warning suggestions, even
though the PowerPoint expressly states that it does not identify MSHA
standards. It states, “[T]his program does not establish official MSHA
policy on all possible methods of compliance at every mining
operation. Instead, this program provides suggestions and recommendations to
the mining industry for educational purposes.” Sec’y’s Ex. 5, at 34 (emphasis
added). Obviously, the Secretary — who cannot be held to the burden of
establishing elements set forth in non-binding guidance, see Brock v.
Cathedral Bluffs , 796 F.2d at 537-39 — likewise cannot establish by
mere guidance a binding norm for determining violations. It was clear error for
the Judge to implicitly hold otherwise here.

[16]
The Judge found that safety lines were on site at
but chose to infer that the miners would have chosen to put themselves in
danger of falling without putting on the lifelines. 37 FMSHRC at 2789. As with
other findings, no evidence supports this speculation.

[17] Although the Judge discussed testimony throughout her
decision, she cited the transcript precisely one time. 37 FMSHRC at 2791. It
would be eminently helpful if the Judge would provide transcript citations when
discussing testimony in future cases.

[18]
Our colleagues suggest that the Judge made
“comparative credibility findings” when she discredited Becker’s testimony
about what he did when he placed the pump on the highwall and instead adopted
the inspector’s testimony speculating what happened. Slip op. at 5. However,
the Judge’s resolution in the disputed testimony is likewise infected by error.
As fully explained in the preceding discussion, the evidence corroborates
Becker’s explanation of the event and does not support the inspector’s mere
speculations of what he believed likely happened. Hence, the Judge’s
credibility findings are not supported by the evidence and must be overturned. See
Morgan v. Arch of Illinois , 21 FMSHRC 1381, 1389-93 (Dec. 1999) (noting
an exceptional circumstance warranting overturning a Judge’s credibility
finding is when such finding is contradicted by the record evidence); Consolidation
Coal Co. , 11 FMSHRC 966 (June 1989) (stating that a Judge’s credibility
findings and resolutions will not be affirmed if there is no evidence or
dubious evidence to support them).