Clintwood Elkhorn Mining Company, Inc. v. Secretary of Labor

Plain-English summary

A contract haul-truck driver lost control on Clintwood's steep haul road after the truck ran out of fuel, crossed the preparation plant access road, and overturned near a 30-foot drop. The Commission had already held that Clintwood violated the full-control standard and remanded for gravity, unwarrantable-failure, and penalty findings. Judge L. Zane Gill held that Clintwood was an operator because of its substantial involvement with the mine and preparation plant. He found the violation S&S and potentially fatal, but attributed no negligence or unwarrantable failure to Clintwood because the accident resulted from a rank-and-file contractor driver's error. The citation was reduced from section 104(d)(1) to section 104(a), with a $1,140 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1607(b)
• Outcome: The S&S violation was modified from a section 104(d)(1) citation to section 104(a), and a $1,140 penalty was assessed.
• Key point: A rank-and-file miner's negligence establishes strict liability for the violation but is not automatically imputed to the operator for negligence or unwarrantable failure.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9958 / FAX: 202-434-9949

CLINTWOOD
ELKHORN MINING COMPANY, INC,

Contestant,

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent,

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

CLINTWOOD
ELKHORN MINING COMPANY, INC.,

Respondent.

CONTEST
PROCEEDING

Docket
No. KENT 2011-0041-R

Citation
No. 6660595; 10/14/2010

Mine
ID: 15-16734

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2011-0515

A.C.
No. 15-16734-240621

Mine:
Clintwood Elkhorn II

DECISION ON
REMAND

Appearances:   Matthew
S. Shepherd, Esq., U.S. Dept. of Labor, Office of the Solicitor, Nashville, TN,
for the Petitioner,

Melanie
Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, Lexington,
KY, for the Respondent.

Before:
           Judge L. Zane Gill

This case is before me on remand by the Commission. Docket
No. KENT 2011-0041-R was the subject of an expedited hearing held on October
19, 2010. The hearing took place 13 days after the events that led to Citation
No. 6660595 and five days after the citation was issued. At the close of the
Secretary’s evidence, Clintwood Elkhorn Mining Co., Inc., moved for dismissal
of Citation No. 6660595 and three other citations and orders that are not at
issue here. The dismissal was granted, and only the dismissal of Citation No.
6660595 was appealed to the Commission.

In its decision, the Commission found
that Clintwood violated 30 C.F.R. § 77.1607(b) because the operator failed to
maintain full control of his haul truck while it was in motion. Clintwood
Elkhorn Mining Co., Inc., 35 FMSHRC 365, 370 (Feb. 2013). Citation No.
6660595 was remanded to me to determine whether the violation was significant
and substantial, whether it was an unwarrantable failure to comply by the
operator, and to assess an appropriate penalty. Id. at 371. After the
remand, the record was reopened, a supplementary evidentiary hearing was held on
October 15, 2014, in Pikeville, Kentucky.[1]

Findings
of Fact[2]

Clintwood operated a coal preparation
plant in Pike County, Kentucky. Clintwood Elkhorn Mining Co., Inc., 32
FMSHRC 1880, 1882 (Dec. 2010)(ALJ Gill). A steeply graded haul road, Coal Haul
Road A, ran from the prep plant to a nearby coal mine operated by Hubble Mining. Id.
at 1882-83; Tr.II 255:10-12.[3]
Clintwood owned the mineral rights to the coal that Hubble mined. Clintwood leased
the mine property to Hubble to mine the coal, and contracted with Hubble to purchase
the coal it mined. (Ex. R-3; Tr.I 38:17-19; Tr.II 239:19-21; Tr.II 240-5-7) Hubble
contracted with Tattoo Trucking to haul the coal it mined to Clintwood’s prep
plant using Coal Haul Road A. (Tr.I 38:23- 39:1) Clintwood also owned Coal Haul
Road A and leased it to Hubble. (Tr.II 240:8-10)

On the morning of October 6, 2010, Shane
Bishop, an employee of Tattoo Trucking, was hauling coal in a Mack 800 haul
truck on Haul Road A from the
Hubble mine down to Clintwood's prep plant. 32 FMSHRC at 1882-84. On his ninth
trip down to the prep plant, Bishop encountered mine equipment occupying the
road. (Tr.I 187:2-17) He braked and waited for the equipment to clear and then
continued on his way. (Tr.I 187:20 – 188:2) While descending the hill, Bishop heard
a loud sound from the truck engine. He attempted to shift gears, the engine died,
and the brakes failed.[4]
(Tr.I 187:20 – 188:2; Tr.I 188:12-17; Tr.I 203:1-5; Tr.I 204:1-5; Tr.II
60:13-20) The truck accelerated down Haul Road A about 100 to 150 feet before
crashing through a berm and a utility pole at the base of the hill. 32
FMSHRC at 1884. The truck rolled onto its passenger side, where it came to rest
with its front axle suspended over the 30-foot drop-off to the prep plant's
dump area. (Tr.I 32:12-23) Bishop suffered only an abrasion and some bruising,
despite not wearing his seatbelt. 32 FMSHRC at 1884. He was taken to a hospital
emergency room, examined by a doctor, and released without treatment. Id.

Preliminary
Matter: Jurisdiction

At the close of the evidentiary hearing
in 2014, Clintwood moved to dismiss the case and requested the citation be
vacated. I declined to rule on the record, and directed the parties to brief
the issue. Clintwood argued that MSHA did not have jurisdiction to issue
Citation No. 6660595 because Clintwood was not an “operator” of Tattoo’s truck.
(Resp. Br. at 1) Clintwood further argued that its relationship with Tattoo was
too tenuous for it to be an operator vis-à-vis Tattoo’s violation.[5] Id.
at 4.

The Secretary countered that Clintwood was
an “operator” as defined by Section 3(d) of the Mine Act, 30 U.S.C. § 802(d).
(Sec’y Br. at 5-6) Further, the Commission had already determined that
Clintwood violated Section 77.1607(b),[6]
and that Clintwood misinterpreted the law. (Sec’y Br. at 5; Sec’y Reply Br. at
2) The Secretary argued that the test to determine whether Clintwood was an “operator”
was whether Clintwood had “substantial involvement” with the mine, not with the
truck. (Sec’y Reply Br. at 2) I agree with the Secretary.

In Berwind Natural Res. Corp., the
Commission held that the definition of “operator” must be resolved on a
case-by-case basis using a “totality of the circumstances” test to determine whether
the “entity has substantial involvement with the mine.” 21 FMSHRC 1284,
1293 (Dec. 1999)(emphasis added). The resulting Commission guidance is to “evaluate
the participation and involvement of the entity in the mine's engineering,
financial, production, personnel, and health and safety matters to determine
whether that entity qualified as an operator under the Act.” Id.

There is no dispute here that Clintwood owned
and operated the coal preparation plant. Clintwood owned the mineral rights to
the coal that Hubble mined and leased the property to Hubble to mine the
coal. Clintwood also owned the land under Coal Haul Road A and leased it to
Hubble. The accident happened on this road.  

According to the agreement between
Clintwood and Hubble, Hubble was responsible for mining the coal and
transporting it to Clintwood’s prep plant. (Ex. R-3, §§ 1.2, 3.1) Clintwood
retained the right to use Coal Haul Road A and required Hubble to have a
transportation plan for the haul road. Id. at §§1.4, 1.10. Additionally,
Clintwood retained the right to enter the mine and inspect “any […] aspect of
[Hubble’s] operations,” and required its consent prior to Hubble subcontracting
out any work required by the contract. (Id. at §§ 1.15, 12.2)

Hubble contracted with Tattoo Trucking, the
owner of the truck involved in the accident, to haul the coal mined at
Hubble along Coal Haul Road A to the Clintwood prep plant. (Tr.II 52:15-21) Each
production shift, Tattoo’s trucks, about 12 to 15 of them, were repeatedly loaded
with coal at the Hubble mine, driven down the haul road to Clintwood’s prep plant,
where the loads were weighed and dumped. The trucks were then driven back up
the haul road to the mine for their next load. (Tr.II 31:3-9; Tr.II 354:5-6)

Clintwood had a financial relationship
with the Hubble mine arising from its ownership, lease, and contractual
relationships. Clintwood also retained the authority to inspect the Hubble
mine, and to approve all subcontractors who performed any work under the
contract. The same Hubble contractors hauled and dumped the coal from the
Hubble mine at the Clintwood prep plant, deepening the relationship between the
prep plant, the mine, and the contracting parties. Regarding production, although
Clintwood accepted coal from multiple mines, all of the coal produced at the
Hubble mine was hauled to the Clintwood prep plant. Based on the totality of the circumstances,
I find that Clintwood was an “operator” and subject to MSHA’s jurisdiction
because it had substantial involvement with the Hubble mine.[7]

Moreover, Clintwood stipulated that it operated
the Clintwood prep plant, (Joint Prehearing Rep., Stipulation 1). The citation
alleges that the violation occurred at the prep plant. Bishop lost control of
his truck on Clintwood’s haul road, crossed over Clintwood’s main road, hit Clintwood’s
berm, and nearly fell into Clintwood’s dump site. Therefore, by virtue of its
stipulation, Clintwood was an operator for purposes of the violation, and Bishop
lost control of his vehicle on Clintwood’s property.

Citation
No. 6660595

Inspector Robert Bellamy[8] issued
Citation No. 6660595 to Clintwood, alleging a violation of 30 C.F.R. § 77.1607(b).
The Commission concluded that Clintwood violated the standard. The regulation
states that “[m]obile equipment operators shall have full control of the equipment
while it is in motion.” 30 C.F.R. § 77.1607(b). Section 77.1607(b) is a
mandatory safety standard. The citation alleges:

On 10/06/2010, the contract driver of a
loaded coal haulage truck failed to maintain control of the truck. The truck
ran away down the mine coal haulage road, crossed the main prep plant access
road and entered the prep plant stockpile before stopping. Overloading of the
truck contributed to the driver losing control. This event caused exposure to
employees from other mines, vendors and prop plant employees using the main
access road and employees at the prep plant to a potentially fatal accident.
The estimated weight of the loaded truck was 50,200 lbs. over the Gross Vehicle
Weight Rating (GVWR) recommended by the manufacturer based on the average
weight tickets for the previous eight loads for this truck on this date.
Clintwood Elkhorn was aware that the trucks hauling to this prep plant are
routinely overloaded and did nothing to stop this practice. This is an
unwarrantable failure to comply with a mandatory safety standard.

Ex.
S-12

The citation alleges that an injury occurred,
the injury could reasonably be expected to be fatal, the violation was
significant and substantial, one person was potentially affected, and the level
of negligence was high. Id.

Negligence and Unwarrantable Failure

“Negligence” is not defined in the Mine
Act. The Commission has, however,

[R]ecognized that “[e]ach mandatory
standard … carries with it an accompanying duty of care to avoid violations of
the standard, and an operator's failure to meet the appropriate duty can lead
to a finding of negligence if a violation of the standard occurs.” A.H.
Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an
operator met its duty of care, we 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. See generally U.S. Steel Corp., 6 FMSHRC 1908, 1910
(Aug. 1984).

Jim
Walter Res. Inc.,
36 FMSHRC 1972, 1975 (Aug. 2014); Brody Mining, LLC, 37 FMSHRC
1687, 1702. (Aug. 2015); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug.
2008). “Thus in making a negligence determination, a Judge is not limited to an
evaluation of allegedly ‘mitigating’ circumstances. Instead, the Judge may
consider the totality of the circumstances holistically.” Brody Mining, LLC,
37 FMSHRC at 1702. Although
the Secretary's part 100 regulations are not binding on the Commission, the
Secretary's definitions of negligence in those provisions are illustrative.

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

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

See
Manalapan Mining Co.,
35 FMSHRC 289, 293 (Feb. 2013). Whether conduct is “aggravated” in the context
of an unwarrantable failure analysis is determined by looking at all the facts
and circumstances of each case to see if any aggravating factors exist. Big
Ridge, Inc., 34 FMSHRC 119, 125 (Jan. 2012) (ALJ Zielinski).

The
Secretary alleged high negligence and unwarrantable failure, and argued that
Bishop’s truck was overloaded at the time of the accident, that the overload
contributed to the accident, that Clintwood Elkhorn was aware that the trucks
hauling to its prep plant were routinely overloaded, and it did nothing to stop
this practice. (Sec’y Br. at 9-13; Ex. S-12) The Respondent argued that the
Secretary did not prove that the vehicle was overloaded, did not prove that
even if it were overloaded, the overload caused the accident, and that it was
driver error that caused the accident because the truck ran out of fuel. (Resp.
Br. at 7-14) It must be noted that the standard relates to Bishop losing
control over his vehicle while it was in motion, not whether something caused
or contributed to the accident.

The Secretary’s evidence and argument at
the 2010 and 2014 hearings focused largely on establishing an evidentiary link
between Gross Vehicle Weight Ratings (GVWR)[9]
and the alleged consequences of overloading. The Secretary tried to convince
the court that Bishop’s truck was overloaded based on load records that showed
loads in excess of the GVWR, and that the resulting overload contributed to the
accident.[10]
The Secretary argued that overloading puts more strain on the brakes and can cause
brake fade. (Tr.II 190:10 -191:10) This argument appears to be one of first
impression. Neither the Mine Act nor the regulations defines “overload” or
describes how MSHA determines that a truck is overloaded.

To prove high negligence, the Secretary
attempted to show that Bishop’s truck was overloaded by reference to an
objective measure of what the truck could presumably safely haul -- the GVWR
for a Mack 800 haul truck. However, Bishop’s Mack 800 truck had been modified
from the manufacturer’s specifications to haul larger loads. (Tr.II 57:20
-58:16) Thus, the manufacturer’s stated GVWR was practically useless to
establish a proper load limit for Bishop’s truck. The Secretary attempted to prove
that the weight he proffered as the maximum load GVWR was for Bishop’s modified
truck. However, the Secretary’s witness was unable to do anything more than speculate
about the actual GVWR for Bishop’s modified truck. His speculation was based on
an inspection of seven or eight Mack 800 series trucks, but he never tested the
actual haul limits or possible overload ratings of any of the trucks. (Tr.II
186-190; Tr.II 202:22 – 203:4; Tr.II 207:9-17) As a result, the Secretary
failed to prove what the GVWR was for Bishop’s truck, even assuming that the
GVWR was relevant or a reliable means of determining overloading.[11] Since there
was no baseline for comparison, the Secretary could not use the weight tickets
for Bishop’s truck from the previous eight loads before the accident to
establish a pattern of overloading.

Even assuming the Secretary proved that Bishop’s
truck was overloaded, and further assuming that when a truck is overloaded it
is harder to brake, I cannot find that the high negligence designation was
appropriate. Bishop lost control of his truck because of driver error.

William Griffith, the owner of Tattoo
Trucking, testified that driver error caused the brakes to fail and the truck to
run away. Bishop allowed the truck to run out of fuel, which prevented it from
restarting when he attempted to shift gears after the engine died. (Tr.II
26:18-25; Tr.II 60:21-24; Tr.II 66:17 – 67:2) This is consistent with Resp.
Ex-5 and Griffith’s testimony that there was no fuel leaking from the truck as
it lay on its side after running through the berm and overturning. Further, the
fuel tank was empty when the truck was inspected after the accident. (Tr.II
61:1-9; Tr.II 62:15 – 63:23)

At the time of the accident, Bishop had
been driving for Tattoo Trucking for approximately five months. This was his
first job working for a trucking company. (Tr.I 183:4-9) He did not have a
commercial driver’s license. (Tr.I 183:10-16) Based on Bishop’s and Griffith’s testimony,
it was Bishop’s inexperience that caused him to lose control of the truck. Bishop’s
truck ran out of fuel, causing the engine to make a loud noise, and when Bishop
tried to shift, the engine stalled and died, which resulted in brake failure
and loss of control. When an engine dies, as it did here, the steering and
brakes do not work. (Tr.II 64:2-8) Normally, the jake brake, or engine brake,
will still work even if the truck runs out of gas. However, the truck must
still be in gear. (Tr.II 785:12-17) Here, since Bishop shifted the truck out of
gear, the jake brake did not work either.

Bishop
was driving on an empty tank. Instead of coasting down the hill, as an
experienced driver would have done, he attempted to shift into another gear,
which caused the engine to quit. A reasonably prudent person familiar with driving
such haul trucks would not have allowed the truck to run out of gas, and would
not have shifted out of gear. However, this is not where the analysis ends.

It is well settled that under the Mine
Act, an operator is strictly liable for violations of the Act and mandatory
standards committed by its employees. Southern Ohio Coal Co., 4 FMSHRC
1459, 1462 (Aug. 1982)(“SOCCO”) (citing Allied Products Co. v. Fed. Mine
Safety & Health Review Comm'n, 666 F.2d 890 (5th Cir. 1982); American
Materials Corp., 4 FMSHRC 415 (March 1982); Kerr-McGee Corp., 3
FMSHRC 2496 (November 1981); El Paso Rock Quarries, Inc., 3 FMSHRC
35 (January 1981)). However, the imputation of a rank-and-file miner’s acts to
an operator departs from strict liability under certain circumstances. The
negligence of a rank-and-file miner is not attributable to an
operator for the purposes of negligence designations, unwarrantable failure
determinations, and penalty amounts. Southern Ohio Coal Co., 4
FMSHRC 1459, 1462 (Aug. 1982)(“SOCCO”); Whayne Supply
Co., 19
FMSHRC 447, 451, 453 (Mar. 1997); Fort Scott Fertilizer-Cullor, Inc., 17
FMSHRC 1112, 1116 (July 1995). If “a rank-and-file employee has
violated the Act, the operator's supervision, training and
disciplining of its employees must be examined to determine if the
operator has taken reasonable steps to prevent the rank-and-file miner's violative
conduct.” SOCCO at 1462 (emphasis in original). The record
indicates that at the time of the hearing, Clintwood did not supervise trucking
operations at Hubble, did not issue directions to truck drivers at Hubble, and
did not have authority to discipline truck drivers while they were at Hubble. (Tr.II
232:17 – 233:2)

Additionally, Tattoo gave its employees
annual training (Tr.II 48:14-21), and since Bishop had been employed with Tattoo
for only five months at the time of the hearing, he was “recently” trained. Clintwood
did offer Tattoo’s employees training, but Griffith could not recall if his
drivers took advantage of the offer. (Tr. 49:3-9)

I
cannot find Clintwood liable for Bishop’s negligence as a rank-and-file miner. Therefore,
I find that there was no negligence attributable to Clintwood. Additionally, I
cannot find an unwarrantable failure to comply by the operator because there
was no aggravating conduct constituting more than ordinary negligence.

Gravity

The gravity penalty criterion under
section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is often viewed in terms
of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC
1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95
(March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny
& Ohio Coal Co., 9 FMSHRC 673, 681 (Apr. 1987)). The seriousness of a
violation can be examined by looking at the importance of the standard which
was violated and the operator’s conduct with respect to that standard, in the
context of the Mine Act’s purpose of limiting violations and protecting the
safety and health of miners. See Harlan Cumberland Coal Co., 12
FMSHRC 134, 140 (Jan. 1990) (ALJ Fauver). The gravity analysis focuses on
factors such as the likelihood of an injury, the severity of an injury, and the
number of miners potentially injured. The Commission has recognized that the
likelihood of injury is to be made assuming continued normal mining operations
without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC at
1130.

Inspector Bellamy designated this
violation as injury “occurred;” the referenced injury could reasonably be
expected to be a fatality; it was significant and substantial; and one person
was potentially affected. (Tr.II 101:1-5) Clintwood argued that there was no “injury,”
therefore, an injury did not “occur.” (Resp. Br. at 15) The Secretary argued
that Bishop was injured because he received an abrasion and bruising. (Sec’y
Reply Br. at 12)

The Commission stated in Freeman that
the term “injury” is not defined in the Mine Act or regulations, but the
ordinary meaning of the word is “an act that damages harms, or hurts” or “hurt,
damage, or loss sustained.” Freeman United Coal Mining Company, 6 FMSHRC
1577, 1578-9 (July 1984)(quoting Webster's Third New International
Dictionary (Unabridged) 1164, (1978)). This plain meaning of “injury”
has been used by the Commission and its ALJs in numerous decisions. Here,
Bishop suffered a “hurt” or “damage” because he sustained an abrasion and
bruising. Therefore, an “injury” occurred.

Bellamy designated the injury as
reasonably expected to result in a fatality because this type of accident -- a
runaway truck -- could have resulted, and had resulted, in fatalities in the
past. (Tr.II 101:7-14) The fatality designation not only pertained to the
driver of a runaway truck, but could also affect a pedestrian miner struck by a
runaway truck. Id.

I find that an injury occurred; it could
reasonably be expected to be a fatality; and, one person was potentially affected.

Significant and Substantial

The citation was designated by the
Secretary as significant and substantial (“S&S”). A violation is properly
designated S&S “if, based upon the particular facts surrounding that
violation, 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). The question of
whether a particular violation is S&S must be based on the particular facts
surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny
& Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced
enforcement is applicable only to violations of mandatory health and safety
standards. Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45
(D.C. Cir. 1999). The Secretary bears the burden of proving all elements of a
citation by a preponderance of the evidence. In re: Contests of Respirable
Dust Sample Alteration Citations: Keystone Mining Corp., 17 FMSHRC 1819,
1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C. Cir. 1998); Jim Walter
Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The
Secretary’s burden is to prove the violations and related allegations, e.g.,
gravity and negligence, by a preponderance of the evidence.”)

In Mathies Coal Co., the
Commission established the standard for determining whether a violation was
S&S:

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.

6
FMSHRC 1, 3-4 (Jan. 1984).

The third element of the Mathies
test presents the most difficulty when determining whether a violation is
S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug.
1985), the Commission provided additional guidance: [T]he third element of the Mathies
formula “requires that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there is an injury.”
(citing U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (Aug. 1984)). The
Secretary, however, “need not prove a reasonable likelihood that the violation
itself will cause injury.” Cumberland Coal Res., 33 FMSHRC 2357, 2365
(Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32
FMSHRC 1257, 1281 (Oct. 2010)). Further, the Commission has found that “the
absence of an injury-producing event when a cited practice has occurred does
not preclude a determination of S&S.” Id. (citing Elk
Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005)); and Blue Bayou Sand
& Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). This evaluation is
also made in consideration of the length of time that the violative condition
existed prior to the citation and the time it would have existed if normal
mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905; U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984).[12]

The first and fourth prongs of the Mathies
test have been met. There was a measure of danger to safety – a discrete
safety hazard – which arose from Bishop losing control of his truck as it was coming
down the steep haul road. This hazard could have resulted in serious injuries
to a miner. The remaining question is whether there was a reasonable likelihood
that the hazard would result in an injury.

A runaway 40- to 60-ton truck carrying a
full load down a steep haul road is extremely dangerous to the driver of the
truck and to other miners on foot or to other mining equipment in the area. Before
hitting the berm and landing on its side, Bishop’s truck crossed over
Clintwood’s main access road. There was a reasonable likelihood that Bishop’s truck
could have struck a person or a piece of equipment on the haul road, could have
struck a miner or a piece of equipment while crossing the prep plant’s main road,
could have crashed and fallen into the prep plant’s dump site, or Bishop himself
could have been thrown from the cab of the truck – all of which could
reasonably result in a fatality. (Tr.II 108:13 – 109:2; Tr.II 154:18 – 155:11; Tr.II
155:19 – 156:4) I find that the Secretary proved by a preponderance of the
evidence that significant and substantial designation was warranted here.

Penalty

Under Section 110(i)
of the Mine Act, the Commission is to consider the following when assessing a
civil penalty: (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 in abatement of the violative condition. 30
U.S.C § 820(i). Thus, the Commission
alone is responsible for assessing final penalties. See Sellersburg
Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the
Commission is bound by the Secretary's proposed penalties … we find no basis
upon which to conclude that [MSHA's Part 100 penalty regulations] also govern
the Commission.”); See American Coal Co., 35 FMSHRC 1774, 1819 (July
2013)(ALJ Zielinski).

The Commission has repeatedly held that
substantial deviations from the Secretary's proposed assessments must be
adequately explained using the Section 110(i) criteria. E.g., Sellersburg
Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations
omitted). A judge need not make exhaustive findings but must provide an
adequate explanation of how the findings contributed to his or her penalty
assessments. Cantera Green, 22 FMSHRC at 622.

In
this case, Clintwood’s history of violations is not an aggravating factor,
however Clintwood is a moderate sized operator, controlled by a large entity.
(Tr.II 93:17 -94:3) I found no negligence. Clintwood stipulated that the
proposed penalty would not affect its ability to remain in business. (Joint Prehearing
Rep., Stipulation 7) The gravity of the violation was very serious, because the
runaway truck could have resulted in a fatality. At the initial hearing, there
was a conflict whether Clintwood demonstrated good faith in abating the
violation because the parties could not agree to an accident plan, but I
consider Clintwood’s abatement response appropriate. Considering all of these
factors, I find that a penalty of $1,140.00 is appropriate.

WHEREFORE, it is ORDERED
that Clintwood pay a penalty of $1,140.00 within thirty (30) days of the
filing of this decision.

It
is further ORDERED that Citation No. 6660595 be MODIFIED from a
104(d)(1) citation to a 104(a) citation.

/s/ L. Zane Gill

L.
Zane Gill

Administrative
Law Judge

Distribution:

Matthew
S. Shepherd, Esq., U.S. Dept. of Labor, Office of the Solicitor, 618 Church
Street, Suite, 230, Nashville, TN 37219-2456

Melanie
Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151
Beaumont Centre Circle, Suite 375, Lexington, KY 40513

[1]
The
contest docket was consolidated with the related penalty docket KENT 2011-0515.

[2] These findings
of fact are based on the record as a whole and my careful observation of the
witnesses during their testimony. In resolving any conflicts in the testimony,
I have taken into account the interests of the witnesses, or lack thereof, and
consistencies, or inconsistencies in each witness’s testimony and between the
testimonies of other witnesses. In evaluating the testimony of each witness, I
have also taken into account his or her demeanor. Any perceived failure to
provide detail about any witness’s testimony is not a failure on my part to
consider it. The fact that some evidence is not discussed does not mean that it
was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000) (administrative law judge is not required to discuss all evidence
and failure to cite specific evidence does not mean it was not considered). I
have also fully considered the contents of the official file, including the
pre- and post-hearing submissions of the parties, and the exhibits admitted
into evidence.

[3] Tr.I refers to
the hearing transcript from 2010 and Tr.II refers to the hearing transcript
from 2014.

[4] The
circumstances of the engine and brake failure will be discussed in more detail
below.

[5] Clintwood
argued that it did not have a contractual relationship with Tattoo Trucking,
did not own the truck that was involved in the accident, did not employ the
truck driver, and the truck was not in its supervision or control. (Resp. Br.
at 4)

[6] Despite the
Secretary’s argument, subject matter jurisdiction can never be waived. Fed. R.
Civ. P. 12(h)(3).

[7] Clintwood also argued
that the area where the accident occurred was a private way appurtenant to the
mine, and therefore, not within MSHA jurisdiction. (Resp. Br. at 4-5)  Even if
the haul road was a private way appurtenant to the mine and under the control
of the mine, the truck in question was used in mining activities, and was under
MSHA jurisdiction. See Sec'y of Labor v. Nat'l Cement Co. of Cal., Inc., et.
al, 573 F.3d 788, 793-97 (D.C. Cir. 2009); See Youngquist Brothers Rock,
Inc., 36 FMSHRC 2492, 2493-97 (Sept. 2014) (ALJ Gill); 30 U.S.C. §
802(h)(1)(B),(C).

[8] At the time of
the hearing, Bellamy had been working at MSHA for approximately twenty-four
years and had conducted approximately 30 fatal accident investigations and
numerous nonfatal accident investigations. (Tr.I 107:25 – 108:9)

[9] The GVWR is
assigned by the truck’s manufacturer and is the maximum weight the manufacturer
recommends that a truck can haul. (Tr.II 114:16-21; Tr.II 115:17-21)

[10] The inspector
testified that it was not MSHA’s policy to issue a citation if a truck was
overloaded past the GVWR, but MSHA considered loads in excess of the GVWR an
aggravating factor for negligence and the unwarrantable failure analysis.
(Tr.II 128:10-23; TR.II 129:6-10)

[11] I need not
discuss the notice issues with MSHA using GVWR as a threshold standard for
overloading, or using it for enhanced enforcement.

[12] The 4th
and the 7th Circuits have changed the Commission’s precedent under Mathies
by placing the emphasis and bulk of the analysis on the second element of the
test. See Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir.
2014); See Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148 (4th
Cir. 2016). This Respondent, however, is not located in either of those
Circuits, and thus, my analysis is under the traditional Mathies test.