Revelation Energy, LLC v. Secretary of Labor

Read the official release (fmshrc.gov)

Plain-English summary

Revelation Energy operated two surface coal mines in Kentucky where blasting sent large rocks beyond mine boundaries toward homes and a public road. At the S-4 Netley Branch Mine, four rocks landed in residential yards and one struck the window of an occupied home after the mine failed to follow several blast-plan requirements. At the S-1 Hunt's Branch Mine, an eight-to-nine-ton rock passed near homes and crossed a county road after Revelation used catch benches smaller than its ground-control plan required. Judge Kenneth R. Andrews affirmed both ground-control-plan violations as significant and substantial, high negligence, and unwarrantable failure. He also upheld MSHA's section 103(k) accident-control order. Revelation was ordered to pay $23,800 and $52,500, for a total penalty of $76,300.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1000
• Outcome: Both citations and the section 103(k) order were affirmed, and total penalties of $76,300 were assessed.
• Key point: An operator must follow its approved blast and ground-control plan as written, especially where prior flyrock events and nearby residences put it on notice of severe hazards.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-928-8689

June 5, 2014

REVELATION ENERGY, LLC,

Contestant,

v.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Respondent,

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

REVELATION ENERGY, LLC,

Respondent

CONTEST PROCEEDINGS

Docket No. KENT 2011-357-R

Order No. 8257014; 12/21/2010

Mine: S-4 Netley Branch

Mine ID: 15-17799

Docket No. KENT 2011-211-R

Order No. 8257006; 10/22/2010

Mine: S-1 Hunt’s Branch

Mine ID: 15-18280

CIVIL PENALTY PROCEEDINGS

Docket No. KENT 2011-1106

A.C. No. 15-18280-254952

Mine: S-1 Hunt’s Branch

Docket No. KENT 2011-1054

A.C. No. 15-17799-251789

Mine: S-4 Netley Branch

DECISION

Appearances:   Willow Eden Fort, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, TN, for Petitioner;

David J. Hardy, Esq. &
Christopher D. Pence, Esq., Hardy Pence, LLC, Charleston, WV, for Respondent.

Before:            Judge
Andrews

This proceeding was held pursuant to
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the
“Mine Act” or “Act”). Hearings were held in Prestonsburg, Kentucky on September
25th and 26th, 2012, at which the parties presented testimony and documentary
evidence. This matter concerns Citation No. 8257006, Citation No. 8257014 and
Citation No. 8257015 issued on December 21, 2010, December 22, 2010 and
December 29, 2010, respectively. Citation No. 8257006 and Citation No. 8257015
were issued under Section 104(d)(1), and Citation No. 8257014 was issued under
Section 103(k) of the Act. After the hearing, Post Hearing Briefs and Reply
Briefs were submitted.

Common Facts
and Law

The parties agreed to the following
stipulations:

During
all times relevant to this matter, Revelation was the owner of the S-1
Hunts Branch Mine, Mine ID No. 15-18280.

The
S-1 Hunts Branch Mine, Mine ID No. 15-18280, is a “mine” as that term is
defined in Section 3(h) of the Federal Mine Safety and Health Act (“Mine
Act”), 30 U.S.C. § 802(h).

At
all material times involved in this case, the products of the subject mine
entered commerce, or the operations or products thereof affected commerce,
within the meaning and scope of Section 4 of the Mine Act, 30 U.S.C. §
803.

This
Proceeding is subject to the jurisdiction of the Mine Safety and Health
Review Commission and its designated Administrative Law Judges pursuant to
Sections 105 and 113 of the Mine Act.

MSHA
Inspector Todd Belcher, whose signature appears in Block Number 22 of
Citation Numbers 8257006, 8257014 and 8257015, was citing in the official
capacity and as an authorized representative of the Secretary of Labor
when Citation Numbers 8257006, 8257014 and 8257015 were issued.

True
copies of Citation Numbers 8257006, 8257014 and 8257015 were served on
Revelation as required by the Mine Act.

The
total proposed penalties assessed for Citation Numbers 8257006, 8257014
and 8257015 will not affect Revelation’s ability to stay in business.

The
alleged violation was abated in good faith.

JX-1.[1]

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

The
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 consideration the interests of the witnesses, or
lack thereof, and consistencies, or inconsistencies, in each witness’s
testimony and between the testimonies of the witnesses. In evaluating the
testimony of each witness, I have also relied on his demeanor. Any failure to
provide detail as to each witness’s testimony is not to be deemed a failure on
my part to have fully considered it. The fact that some evidence is not
discussed does not indicate 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).

KENT 2011-1054 & KENT
2011-357-R

Todd
Belcher[2]
issued Citation No. 8257015 on December 29. 2010 after he investigated a report
that a blast at the S-4 Netley Branch Mine on December 21, 2010 caused a
flyrock event.[3]
Tr. I, 41, 139, 141-142; SX-13.

The S-4
Netley Branch Mine was a multiple seam mining operation, which was
approximately 300-500 acres in size. Tr. I, 39. The mine had two spreads of
equipment that removed spoil from the coal pits. Tr. I, 40.  Belcher explained
the process by which an operator extracts coal from this sort of surface mine:
first they develop a work area by removing trees and creating a drill bench to
allow the drilling process to proceed. Tr. I, 29-30. Then the holes are drilled
and loaded, and the material is blasted or shot so it can be fragmented and
removed with loading equipment.[4]
Tr. I, 30. Once the overburden or spoil is removed, then the coal can be picked
up.[5] Tr. I,
30.

Revelation
began operating the S-4 Mine in April 2010. Tr. I, 193. Prior to that,
Appalachian Fuel operated the mine. Tr. I, 193. The blasting at the S-4 Mine
was contracted out to Austin Powder in December 2010. Tr. I, 192-193.

December
21, 2010 was a cold and snowy day, with visible snow cover on the ground. Tr.
I, 197. Day shift foreman Robert Stanley followed his general routine of
arriving at the mine at approximately 4:45 a.m., and proceeded to do a pre-shift
examination.[6]
Tr. I, 197. According to this routine, he would check the road conditions and
the highwall, with the whole process usually taking him an hour. Tr. I, 197. Stanley
performed a full examination before letting any of the day shift men enter the
work area at 6:00 am. Tr. I, 198-199.

Stanley
testified that nothing stood out on the December 21 inspection. He testified
that “the walls and stuff were intact, everything was safe, the roads were
graded from the night before, the area was safe to go into and proceed on.” Tr.
I, 199. Stanley then took an hourly employee and Wendell Schwartz, a loader
man, into the area. Tr. I, 199-200. Schwartz was working with three rock truck
drivers that rotated through the pit area. Tr. I, 200. These workers would have
removed the overburden or the shot from the day before that was still in place.
Tr. I, 201.

Stanley
looked at all the holes and saw that they were not loaded. Tr. I, 204-205. The
holes were usually loaded at daylight, around 7:30 or 8:00 am. Tr. I, 207. Stanley
left the area around 6:20 or 6:30 a.m.[7] Tr. I, 208. Wallen
called Stanley prior to the shot and stated that he was ready to detonate and
that Stanley’s men needed to be removed from the area. Tr. I, 212. Stanley was
at the “prell bin” where the powder was located when the shot was detonated.
Tr. I, 212. At this position he was about a quarter of a mile away and did not
have a clear view of the shot because it was blocked from the spoil bank. Tr.
I, 213.

Wallen was
in charge of Shot 255, and had two additional men working with him on it.[8]
Tr. I, 228, 235-236. Prior to detonating the shot, Stanley told Wallen what
area they were going to shoot. Tr. I, 236. Wallen and his men went to the
magazines, got the product, placed everything in place, and had a pre-shift
meeting. Tr. I, 236. They then proceeded to go out to the area and look around
to make sure there was nobody working. Tr. I, 236. They then placed a blasting
sign to make anyone around aware of the upcoming blasting. Tr. I, 237. Wallen
used his GPS to determine how far they were from houses. Tr. I, 237. He then
checked the area on the face and the burden of the holes to determine if
anything else needed to be done before the blast. Tr. I, 237.

The shot
was detonated at 9:01 am. Tr. I, 250. Wallen did not see anything that caused
him concern, and he did not see any flyrock depart from the shot. Tr. I, 251.
Wallen was aware of the location of the homes, and he testified that he
designed the shot away from the homes. Tr. I, 243-244. Wallen testified that
the shot appeared to detonate the way he designed it to detonate. Tr. I, 251.

Danny
Mullins pulled the trigger on the shot, while Wallen videotaped. Tr. I, 274. At
the time of the shot, Wallen was trying to videotape it, but he fell because it
was slick where he was standing. Tr. I, 251. As a result, the camera fell from
his hand and turned off.[9]
Tr. I, 251, 258-259. Wallen testified that when he fell, the shot was 95-100%
completed. Tr. I, 262. Reviewing the video, Wallen was not able to see the flyrock.
Tr. I, 252-256. Wallen testified that the vehicle visible in the video was a
D-9 bulldozer, and that it was empty. Tr. I, 259-260. It would have been
dangerous for an individual to be inside the vehicle during a blast, but Wallen
stated that it was left there because he “felt it was safe for it to sit
there.” [10]
Tr. I, 260.

After the
shot was detonated, Stanley went to do another on-shift examination. Tr. I,

213. Stanley radioed Wallen to ask if everything was clear and it was alright
     to go into the area, and Wallen said things were all clear. Tr. I, 214.

Between
9:45 and 10:00 am, Stanley received a phone call from the engineering
department asking if there had been a flyrock. Tr. I, 214-215. Stanley responded
that he did not know of any flyrocks, and the engineering department told him
that residents below called to complain of flyrocks in their yards. Tr. I, 215.
Stanley called Wallen immediately and they contacted Dana Hamilton, who was a
certified blaster with Austin Powder.[11]
Tr. I, 215. While Wallen and Hamilton made arrangements to go down to the area
where the flyrocks landed, Stanley contacted MSHA and officials at the
Commonwealth of Kentucky to report the flyrock. Tr. I, 215.

After
Belcher received the report at around 9 a.m., he went to the location of the
alleged flyrock event in order to see if any homes had been damaged or any
injury had occurred. Tr. I, 41-42. First, Belcher issued the 103(k) Order,
which ceased all blasting on the mine property. Tr. I, 42. The next day, MSHA
conducted interviews at the mine office, which led to the conclusion that flyrock
events had occurred that should have been included in the ground control plan.
Tr. I, 42-43.

Belcher
testified that the 15 year history of the mine showed that the area was subject
to flyrock events. Tr. I, 43. Flyrock is not in itself a violation, however
failing to follow a ground control plan is a violation of 30 C.F.R. 77.1000.
Tr. I, 59-60. Section 77.1000 requires each operator to establish and follow a
ground control plan in order to provide safe working conditions at the mine
site. Tr. I, 60. The ground control plan for the S-4 Netley Branch Mine that
was in effect at the time of the citation was dated April 26, 2010. Tr. I, 60;
SX-16.

A ground
control plan must address the type of mining being conducted, whether single
seam mining, multiple seam mining, or area mining. Tr. I, 28. The ground
control plan must also address how the configuration of the highwall will be
left such that it provides safe working conditions for the miners. Tr. I, 28. If
the mine is engaging in multiple-seam mining, then safety benches must be
strategically placed to ensure safe highwall conditions.[12] Tr. I, 28. Additionally,
the plan must include safety precautions for various activities, such as
blasting. Tr. I, 28-29. If there had been a history of flyrock events, the plan
must include greater blasting details. Tr. I, 29.

In this
case, due to the dangers associated with blasting, rocks were projected between
1,100-1,200 feet through the air and landed near people’s homes. Tr. I, 46. One
of the rocks fragmented and struck the window of a nearby home. Tr. I, 46. When
there is a flyrock event, there is an automatic suspension of blasting until an
analysis and investigation can be performed. Tr. I, 47.

A drill log
is used to inform blasters about any abnormalities, such as cracked holes, so
that the blaster is informed prior to loading the holes. Tr. I, 55. Belcher
noticed in the drill log that there were four holes marked with the letter “V,”
indicating that these holes were voided.[13]
Tr. I, 56. During the course of the investigation, Belcher found that at least
three of these four holes were not loaded because the material was loaded out.
Tr. I, 56, 144. According to the report, these holes were loaded with backfill
material, however Belcher believed that these holes were removed prior to the
blast. Tr. I, 148. Belcher did not notice any holes marked with the letter “C,”
which stands for crack. Tr. I, 56-57.

One home
that was affected by the flyrock event at issue in this case was previously
affected by a flyrock event five years earlier. Tr. I, 43. Due to this history,
and the proximity of the homes, Belcher believed that there should have been a
“heightened awareness of the sensitivity of the area.” Tr. I, 43. The Netley
Branch Mine had a blast remediation plan prior to the flyrock event cited here.
Such plans are put in place once a flyrock event occurs. Tr. I, 62-64. In the
plan, it identifies what went wrong, what led to the occurrence of the flyrock
event, and what measures will be put in place to prevent a similar occurrence.
Tr. I, 62.

Belcher had
been to the S-4 Netley Branch Mine 20-30 times over 15 years, though he was not
at the mine on the morning prior to the shot. Tr. I, 47. As part of his
investigation, Belcher conducted interviews on December 22, 2010 with
homeowners who lived near the mine site. Tr. I, 47-48, 57-58. Belcher also took
contemporaneous notes on the violations. Tr. I, 57-58. Belcher examined the
distances between where the rocks landed and the homes nearby. Tr. I, 48. He
found that there were four to five different rocks ranging in sizes from
four-by-four inches to 12 by 12 inches. Tr. I, 48. These rocks were scattered
on nearby property and Belcher saw the marks on the sides of homes from the
rocks. Tr. I, 48-49. Furthermore, there was snow on the ground, so one could
see the paths of the rocks. Tr. I, 49. Belcher stated, there were five people
in one home and three people in another and said, “fortunately no one was
injured or killed, but there was people home at the time.” Tr. I, 49.

Belcher
also interviewed individuals who were present at the mine during the flyrock
event, including several state officials and several officials with the Office
of Surface Mining. Tr. I, 49-50.

Shawn
Wallen was the certified blaster in charge of Blast 255 and filled out the
report.[14]
Tr. I, 139, 141-142. Belcher interviewed Wallen on December 22, 2010. Tr. I,
140-141. Belcher interviewed Austin Powder foreman Robert Stanley on December
21 and 22, 2010. Tr. I, 149. Belcher’s investigation did not reveal that any
agent of the company was present at the blast site or in the pit beside the
blast site between 6:00 am and 9:00 am on the morning of the flyrock event. Tr.
I, 150.

Belcher
also reviewed the ground control plan, the drill log, and the blast report.[15] Tr. I,
50-51. The blast report contains a formula that includes the weight of the
explosives and distance to the nearest dwelling in order to determine a delay.
Tr. I, 51. Belcher received the blasting report in this case from either
Revelation or Austin Powder, and the delay used was eight milliseconds. Tr. I,
51, 53.

Photographs
were admitted into evidence that showed a rock that broke through part of a
window of the house closest to the blast site. Tr. I, 108-109; SX-15. This
house was approximately 1,000 feet from the blast. Tr. I, 109. The photos also
showed splattering on the ground where rocks had landed. Tr. I, 111. The owner
of the house told Belcher that the window had been broken by the flyrock in the
photo. Tr. I, 110-111. Belcher interviewed this homeowner, and the homeowner
stated that the rock came from the mine on the morning of the blast. Tr. I,

113. Belcher and the homeowner walked around the entire yard, and the owner
     pointed out the rocks that landed in his yard. Tr. I, 111-112.

According
to the photographs, flyrocks landed on a county road, and on other property
further from the blast site. Tr. I, 112-113; SX-15. The rock was large enough
to kill a person if it struck him or her in the head. Tr. I, 113-114. Other
photos similarly showed rocks that had splattered on the side of homes, on
trees, and on rooftops. Tr. I, 113-116.

On December
21, 2010, the public highway and access roads at the mine were accessible, and
people were using them. Tr. I, 116. Furthermore, people were living in the two
homes affected by the flyrock event. Tr. I, 116-117.

After
conducting an investigation as a result of the December 21, 2010 flyrock
incident, Belcher discovered that three elements of the plan were violated,
which he grouped into one citation. Tr. I, 64-65. The first violation that
Belcher discovered was that “sufficient burden was not maintained on the side
of the shot toward the dwelling.” Tr. I, 66; SX-13. The burden was the amount
of spoil that was either left in place from the previous shot or solid material
that had not yet been shot. Tr. I, 66-67. There was a calculation based on the
diameter of the hole to determine how much burden is necessary to help prevent flyrock
from traveling as far. Tr. I, 67-68. Here, the burden and spacing in the ground
control plan ranged from 14-17 feet, with a 14-foot minimum. Tr. I, 68. The
plan states that “any variance from this minimum requires identification.” Tr.
I, 68-69; SX-16. No variance was ever requested. Tr. I, 69.

Too much or
too little burden can cause problems with flyrocks. Tr. I, 69-70. Belcher
testified that he believed that the shot was being loaded too quickly, leading
to the flyrock event. Tr. I, 71. There was not sufficient burden maintained on
the side toward the homes, which was a violation of the ground control plan.
Tr. I, 71-72. Specifically, in the section labeled, “Shot Design Parameters,”
it states, “[b]urden of spacing ranges will be a minimum of 14 feet on face
burden will be maintained.” Tr. I, 72. It also states, “[a]ll blasts will be
directed away from homes.” Tr. I, 72-73. SX-16. Based on his investigation, Belcher
believed that there was less than 14 feet of burden maintained on the side
facing houses. Tr. I, 73. Failing to leave sufficient burden is enough, and
often highly likely, to create a flyrock incident. Tr. I, 96, 98. Belcher
testified that this was the most serious violation listed in the citation. Tr.
I, 97.

The second
violation was in regard to the incomplete video of the shot. The ground control
plan requires a shot to be captured and recorded on video.[16] Tr. I, 73; SX-16. The
purpose of the video requirement is to provide the blaster, blasting
coordinator, and company management the opportunity to review blasts. Tr. I,

76. In this instance, the video did not comply with the requirements because
    the video was interrupted during the shot when the camera fell. Tr. I, 73-74;
    SX-16. As a result, the video only captured approximately 30-40% of the shot.
    Tr. I, 77. After reviewing the video, Belcher testified that he noticed rocks
    projecting from the holes in the direction of the nearby houses. Tr. I, 77-78. Belcher
    testified that in his experience, the failure to review a problematic blast
    that created a flyrock incident would lead to subsequent flyrock incidents. Tr.
    I, 99-101. Belcher described how the shots occur quickly in real time—often within
    milliseconds of each other—and the ability to review the video at slower speeds
    can help evaluate and analyze shot performance. Tr. I, 101. Some sites use
    tripods to record video of shots, and Belcher testified that such use would be
    safer. Tr. I, 123-125.

The third
violation involved the amount of explosives used. Tr. I, 81-82. The danger of
using too much explosives is that one can over-break the rock and have less
control of flyrock. Tr. I, 102. The ground control plan contained a scale
distance formula that required an eight-millisecond delay. Tr. I, 83. However,
Belcher found that the delays overlapped each other, with at least two holes
designed not to fire within eight milliseconds.[17] Tr. I, 83-84, 88; SX-17.
There was nothing in the ground control plan that would allow Revelation to
exceed the normal amount of explosives based on their use of a seismograph.[18] Tr. I, 90.

The blast
report listed 354.8 as “Max weight of explosives per eight millisecond
interval,” and 254.9 as the maximum per interval. Tr. I, 91-92; SX-17. Belcher
testified that if the number on the blast report was 419.5, rather than 254.9
as the amended report stated, this confirmed for him that more explosive was
used than allowed. Tr. I, 171-173. Wallen testified that the maximum weight of
explosives per 8 millisecond interval figure of 254.9 figure on the shot report
was the result of a computer malfunction. Tr. I, 231; SX-17. The mistake was
discovered the day after the flyrock by Marty Bashir at the Kentucky Office of
Mine Safety and License Explosive and Blasting. Tr. I, 231-232. Wallen
testified that the amended report, which stated that the maximum weight of
explosives per 8 millisecond interval figure of 419.5 was correct.[19] Tr. I, 234;
RX-A.

The blaster
in charge makes the determination for this number based on one of three
different formulas, based on the distance of the house from the shot. Tr. I,

92. In this case, the house was 1,036 feet away, so the correct formula would
    be D over 55 squared. Tr. I, 92. The scale distance factor was 64.89. Tr. I,
    93-94. Belcher arrived at the conclusion that these two holes did not meet the
    eight millisecond delay by reviewing the blast record provided by the company.
    Tr. I, 135-136.

Belcher
testified that in his experience, excess explosives alone have not resulted in flyrock.
Tr. I, 103. Rather, it usually occurs from a combination of factors such as
inadequate stemming,[20]
loading cracked holes, insufficient burden, and neglecting to profile the
highwall. Tr. I, 103. However, Belcher testified that if one exceeds the amount
of explosives in the window of time allotted, it could lead to an opportunity
to produce a flyrock. Tr. I, 104.

Belcher
testified that the insufficient burden was the leading cause of the flyrock event.
Tr. I, 178-179. The filming was a problem because if the operator is not
getting an adequate picture of what is happening with the shots, then
adjustments and corrections cannot be made. Tr. I, 179. Also, two holes going
off at one time due to the lack of an eight millisecond delay or exceeding the
maximum charge weight could lead to flyrock. Tr. I, 179.

The
combination of the three violations listed in the citation created a situation
where the gravity was highly likely and the injury or illness that could be
expected was fatal. Tr. I, 104-105. Belcher testified that the combination of
these three violations made the occurrence of a flyrock event more likely than
if only one of these violations were present. Tr. I, 105. Even flyrock that
does not leave the mine property presents a hazard to miners on the property.
Tr. I, 106. Belcher testified that the injury to be expected from such an event
would be fatal. Tr. I, 107-108.

Belcher
testified that Revelation’s negligence stemmed from their directing workers to
remove the spoil in and around the blast. Tr. I, 117. Through interviews at the
mine, Belcher discovered that Austin Powder could not keep ahead of Revelation,
so their shots were being encroached upon.[21]
Tr. I, 117-119. There was a 50-foot buffer distance that was required. Tr. I,
117-120. Four of the holes that were drilled were not loaded properly. Tr. I,

118. They were voided, which means that the holes had been loaded out. Tr. I,
     118, 121. It was Revelation that was in charge of loading these holes. Tr. I,
119. Belcher testified that he did not view the relationship between Austin
     Powder and Revelation as a mitigating factor because ultimately Revelation had
     a responsibility to ensure that Austin Powder did the work correctly. Tr. I, 122.

KENT 2011-1106 & KENT
2011-211-R

Belcher
issued Citation No. 8257006 on October 22, 2010 at the S-1 Hunts Branch Mine.
Tr. II, 18; SX-1. The citation was issued in relation to a flyrock incident
that occurred on October 7, 2010. Tr. II, 18-19. The S-1 Hunts Branch Mine is a
large surface coal mine. Tr. II, 14-15.

Dewey Reed
was the blaster at the S-1 Mine on October 7, 2010, and Hamilton was on the
property helping Reed.[22]
Tr. II, 137. Reed was the lead blaster on the shot, Blast No. 651, but Hamilton
was his boss. Tr. II, 138.

Roland
Davis was the General Manager at the Hunts Branch S-1 Mines on October 7, 2010[23]. Tr. II, 87.
On October 7, 2010, Davis arrived at the mine between 5:00-6:00 am and left
between 5:00-5:30 pm. Tr. II, 92-93. Prior to leaving on that day, Davis went
to the shot area periodically. Tr. II, 93.

Hamilton
testified that the shot was shot at 6:51 pm, and a resident called
approximately 10 minutes later to say that a rock came off of the out-slope and
was at their residence. Tr. II, 146. Hamilton did not see the rock go down the
hill from where he was standing, which was approximately 2,000 feet away. Tr.
II, 146. Another Austin Powder employee, Charles Sexton, thought he saw the
rock, so Hamilton immediately went to make a visual observation of the area.
Tr. II, 147. He did not see any evidence that the rock had made any contact
with either catch bench. Tr. II, 147-148. Hamilton sent a driller named Dwayne
Endicott over the outslope, and he reported that he did not see anything. Tr.
II, 148.

Hamilton
received another call from a mine clerk saying that her mother had another rock
by her residence. Tr. II, 149. Hamilton went to the residence and observed a
rock that was approximately three to four feet in diameter. Tr. II, 149. He
made sure that no one was hurt, and at 7:00 pm called the State Mining Office
and Roland Davis. Tr. II, 94, 149.

Hamilton
told Davis that a rock had gone over the hill. Tr. II, 94. He further stated
that no one was hurt, there was no damage to property, and that he had made the
proper phone calls reporting the incident. Tr. II, 95. Davis went back to the
mine, arriving at approximately 8:00-8:30 pm. Tr. II, 95. Davis drove up the
hollow where the rock had come to rest, spoke with Hamilton, and then went
home. Tr. II, 95.

Belcher
received notification of the flyrock incident when he came into work on the
morning of October 8, 2010. Tr. II, 19. He proceeded to conduct interviews with
individuals who worked at the mine site and with residents of nearby homes,
visited the mine site at least twice, and travelled to the area where the flyrock
landed. Tr. II, 20-21. Belcher reviewed a copy of the ground control plan, the
drill log, the video, and the mine’s history. Tr. II, 21-22. Belcher took
photographs and notes, dating from October 8-29, 2010, in order to document his
findings. Tr. II, 22.

After
performing his investigation, Belcher found that the mine site was above steep
terrain, there were heavily populated areas below the mine site, and there were
at least three or four different flyrock events in the past. Tr. II, 23-24. This
was a “highly sensitive” area that required a detailed blast remediation plan.[24] Tr. II, 24. Such
plans are jointly reviewed and agreed upon by the Commonwealth of Kentucky, the
operator’s blasters, and MSHA. Tr. II, 24. The plan in place at this mine
required a catch bench of a specific size. Tr. II, 24.

A catch
bench is utilized to catch spoil, rocks, and debris that may be removed from
the top as material is extracted to get to the coal bed. Tr. II, 15-16. Catch benches
must be constructed prior to blasting, and are commonly placed along
perimeters, especially in areas where there is a possibility that the rocks
could travel into public roads or residences. Tr. II, 16. The catch bench
requirements must be included in the mine’s ground control plan. Tr. II, 17-18.
The size of the catch bench necessary is generally determined by an assessment
of any past history, rock sizes, and other catch materials. Tr. II, 16-17. A
common size for catch benches is 15 feet wide and 10 feet high. Tr. II, 17.

Belcher
found that there were two catch benches that had been constructed in the area between
where the shot was detonated and down to the Alma Seam they were mining down to.
Tr. II, 24, 25. These were less than 10 feet high, with some portions
approximately 5 feet high. Tr. II, 25. The rock that Belcher saw was
approximately four and a half by four and a half by six feet, and weighed
approximately eight to nine tons. Tr. II, 25, 48.

The ground
control plan was drafted by the company and approved by MSHA on October 16,
2009. Tr. II, 26, 33; SX-1, 1. It was in place at the mine on October 7, 2010.
Tr. II, 26; SX-1, 1. The ground control plan contains a blast remediation plan
because of prior flyrock events. Tr. II, 27-28. Item four of the ground control
plan required a 15-foot wide catch bench, measured from the top of the berm to
the highwall, with a 10-foot high berm, at all major seams, which included
Williamson, Thacker, Cedar Grove, and Alma.[25]
Tr. II, 29; SX-3, 11. Belcher testified that this item was violated. Tr. II,
29; SX-3, 11. Belcher testified that this requirement was a minimum size
requirement, which the operator could exceed. Tr. II, 30.

Item four
of the plan states that if a catch bench cannot be constructed as required,
then items 18-23 of the blast remediation plan apply.[26] Tr. II, 31-32, 38; SX-3,

11. None of these items allow Revelation to build two catch benches of smaller
    height and width in lieu of the one required in item four. Tr. II, 32. Revelation
    did not comply with the alternate provisions set forth in items 19-24. Tr. II,
    38.

Hamilton
discussed the catch benches with general manager, Roland Davis, and foreman,
Joey Branham, at Revelation. Tr. II, 140. Hamilton testified that Revelation
had exceeded the requirements of the ground control plan because the two safety
benches combined were greater than 15 by 10 feet. Tr. II, 142. Hamilton
believed that two smaller benches were better than one larger bench. Tr. II,
143.

Davis
testified that he and Hamilton read the ground control plan and interpreted
item four as requiring a 15 by 10 foot catch bench if possible. Tr. II, 113. He
testified that they then interpreted the following sentence requiring
alternative procedures to only be applicable if no catch bench could be
constructed.[27]
Tr. II, 114. He therefore concluded that since they could build two 10 by 5
foot catch benches, these would be allowable.[28]
Tr. II, 114. He further testified that after “intense discussions” on the
matter, they determined that the two smaller catch benches would be safer than
one larger catch bench. Tr. II, 114. Davis did not believe that a 15 by 10 foot
catch bench would have made contact with the rock. Tr. II, 119. They built the
first catch bench just below the Upper Alma seam and the other one
approximately 25-30 feet below it. Tr. II, 115. Davis testified that he did not
need to contact MSHA about the catch bench issue. Tr. II, 127.

Hamilton
testified that he did not believe that a 15 by 10 foot bench would have made a
difference. Tr. II, 156. He also testified that he understood item four of the
plan to mean that they were permitted to construct two smaller catch benches
“as long as we were within the 15-by-10 measurements.” Tr. II, 161.

On October
7, 2010, the upper Alma coal seam was being mined, which is a major seam that
required a 15 by 10 foot catch bench. Tr. II, 33; SX-3, 11. Belcher testified
that the flyrock event that occurred at the mine showed why two small catch
benches were not as effective as one larger catch bench. Tr. II, 38. The
boulder travelled approximately 400-500 feet in elevation on a steep terrain,
exhibiting a “tremendous amount of force,” and the catch benches in place were
not large enough to catch the rock. Tr. II, 39. Belcher testified that a
15-foot wide catch bench with a 10-foot high berm would have been capable of
catching the boulder. Tr. II, 39. Similarly, he believed that if Revelation had
complied with the alternate provisions outlined in items 19-24, the boulder
would have been stopped. Tr. II, 39-40. Specifically, the alternate provisions
required that Revelation stay 20 feet from the outcrop, take a cut down to the
coal seam, and maintain the outer portions. Tr. II, 39; SX-3, 12. This would
have served as a highwall that would prevent rocks and other spoil materials
from traveling over the hill. Tr. II, 40.

The danger
of not constructing an adequately-sized catch bench is that a large rock
rolling down the hill would not be captured, and would roll into an area where
there are homes and public roads, posing a risk of injury or death to
individuals. Tr. II, 47. Belcher testified that with two smaller catch benches
instead of one larger catch bench, it was highly likely that an injury would
occur. Tr. II, 47. He reached this conclusion because the boulder would not be
caught by the smaller catch benches, and there were multiple families residing
in the area where the boulder ended up. Tr. II, 47-48. If an individual were
impacted by the boulder at issue here, they would suffer a fatal injury. Tr.
II, 49.

The
elevation that the rock travelled was approximately 475 feet, and the overall
distance that the rock travelled was between 800-1,000 feet. Tr. II, 58-59. The
rock took a path down the hill, at times reaching within 50 feet of several
homes, before hitting the asphalt road and coming to rest. Tr. II, 57. The
impact of the rock hitting the county road created a significant divot.[29] Tr. II,
57-58; SX-4, 25-26.

Taking into
account the prior history and the risks involved with mining in steep terrain
above populated areas, Belcher determined that Revelation exhibited high
negligence. Tr. II, 60-61. Further, the ground control plan provided specific provisions
to prevent such an event from occurring, which Revelation chose not to follow.
Tr. II, 61.

All three
prior events at the mine took place prior to Revelation taking over control of
the mine in October 2009. Tr. II, 79-80. The purchaser of a mine inherits the
ground control plan because the history of the site’s prior occurrences is
highly relevant to the plan. Tr. II, 61-62. The blast control plan contains the
history of previous events at the mine, so that a new operator would be aware
of these events. Tr. II, 63-64. The blast control plan at issue in this case
mentioned the previous incident on January 31, 2009. Tr. II, 64; SX-3, 11.

Belcher
testified that the operator could have made an appointment to speak with him
about amending their ground control plan. Tr. II, 65-66. Prior to October 7,
2010, no one at Revelation contacted Belcher about how to interpret item 4 of
the plan or anything regarding catch benches. Tr. II, 66-67. However someone at
Revelation had contacted MSHA in order to discuss amending a provision of the
plan that dealt with drill bit diameters. Tr. II, 67.

Belcher
marked the citation as an unwarrantable failure to comply with the ground
control plan because the operator was aware of the conditions and there was a
deliberate decision to build two smaller benches rather than the one larger one
as required by the plan. Tr. II, 67-68.

ANALYSIS

Citation
No. 8257015 was Properly Issued for a Violation of 30 C.F.R. §77.1000

Citation
No. 8257015 was a 104(d)(1) citation issued on December 29, 2010. It was marked
Highly Likely, Fatal to 1 person, High Negligence, and Unwarrantable Failure. The
Citation states:

The Operator has failed to
follow their acknowledged ground control plan to prevent a flyrock event that
occurred on December 21, 2010 during blasting operations. The blast was
identified as shot #255 and was detonated at 9:01 am according to the shot
report. A blast remediation plan outlining specific blasting safety pre-caution
measures had been previously incorporated into the ground control plan and
acknowledged on April 26, 2010. A previous flyrock event had occurred at this
same mine on November 19, 2008. The purpose of the acknowledged ground control
and blasting safety pre-cautions is to prevent a similar occurrence of flyrock.
The blasting plan contained in the acknowledged ground control plan for this
shot was not followed as follows:1) Sufficient burden was not maintained on the
side of the shot toward the dwellings to insure the blast was directed away
from the occupied dwellings that were impacted by the flyrocks.2) The shot
detonated on 12-21-10 was not completely video recorded during and after the
shot as outlined in the plan.3) The maximum amount of explosives allowed to be
detonated within an 8 millisecond delay was exceeded. The blast was detonated
in rock strata between the Thacker and Cedar Grove coal seams identified as Pit

19, causing 4 separate rocks measuring between 4 x 4 and 13 x 13 to be cast

from the blast and land in the yards of two residences located on Big Blue
Springs of Blackberry Creek. One of the smaller rocks, measuring approximately
4 by 4 struck the window of a residence occupied by Gary Hatfield. This type of
practice presents a high degree of risk of serious injury or death to residents
living below the mine. The mine Operator has engaged in aggravated conduct
constituting more than ordinary negligence by not following their acknowledged
ground control plan. This violation is an unwarrantable failure to comply with
a mandatory standard.

SX-13.

The
Citation references 30 C.F.R. §77.1000, which states:

Each operator shall
establish and follow a ground control plan for the safe control of all
highwalls, pits and spoil banks to be developed after June 30, 1971, which
shall be consistent with prudent engineering design and will insure safe
working conditions. The mining methods employed by the operator shall be
selected to insure highwall and spoil bank stability.

The
Secretary argues that Revelation violated the ground control plan by failing to
keep at least 14 feet of burden in front of the shot; by failing to fully
record the blast after the video stopped during the shot; and by exceeding the
amount of explosives which could be detonated within eight milliseconds.

The
Respondent asserts that a flyrock incident alone is not enough to sustain a
citation, and that the Secretary must prove the specific grounds of the
citation. The Respondent argues that it maintained the proper amount of burden,
and the inspector’s belief that insufficient burden was used was based on
hearsay statements from an unnamed informant, making it unreliable. The
Respondent further argues that the Secretary did not submit sufficient evidence
that the amount of explosives used exceeded the amounts permitted in the plan.

Based upon the totality of the
evidence presented at hearing, the Secretary has met its burden of proving that
Revelation violated §77.1000 by failing to follow its ground control plan in
three key respects.

First, Respondent failed to keep at
least 14 feet of face burden as required by the ground control plan. This
requirement was to ensure that “all blasts will be directed away from homes.”
Tr. I, 68; SX-16. Belcher conducted a thorough investigation, which involved
numerous interviews, visits to the sites, and reviews of plans, and determined
that the minimum burden was not being maintained. Tr. I, 50-53, 64-65, 108-112.
I credit Belcher’s informed testimony that his investigation revealed that the
materials were being loaded out too quickly and the shots were being encroached
upon. Tr. I, 71, 117-119. As evidence of this encroachment, Belcher pointed to
four holes that were drilled but not loaded. Tr. I, 117-118. Failing to leave
sufficient burden makes it highly likely that a flyrock event, like the one
that occurred in this case, will happen. Tr. I, 96, 98.

Second, the Respondent failed to
fully record the blast, as required by the ground control plan. The plan
stated, “A video camera will be used to monitor each shot and record the area
prior to, during and after the blast.” SX-16, 8. Shots occur quickly, often
over the course of only a few seconds, so recording the shot provides the
operator the opportunity to review the shot. Tr. I, 76. The video evidence
submitted at hearing, as well as the testimony, shows that during the recording
of the shot, the camera switched off. Tr. I, 73-74; SX-16. Belcher estimated
that the video only captured 30-40% of the shot. Tr. I, 77.

The Respondent argued that even
though the camera accidentally shut off, it still complied with the
requirements in the ground control plan. It argues that the ground control plan
requires taping before, during, and after the shot, but does not provide
specific time frames for taping before and after the shot. Shot 255 consisted
of 30 blasts, spaced eight milliseconds apart, so that the shot took less than
one quarter of a second. Therefore, Respondent argued that even though the
video shut off after a few seconds, there was no violation of the plan. Resp.
Post-Hearing Brief, at 13-15.

Respondent’s hyper-technical
understanding of the taping provision in the ground control plan is
unreasonable. The purpose of the taping requirement is to allow
blasters and other mine personnel the opportunity to review the shot. This
includes reviewing the conditions before, during, and after the shot. The speed
at which a shot occurs further emphasizes the need for a full video of the
shot, which includes the period before and after. According to Respondent’s interpretation
of the plan, a half-second video would comply. However, such a video would
provide little informative value in reviewing the shot. The ground control plan
requires a reasonable taping of the area before and after the shot, such that
the video may be used for the purposes it was intended. In this instance, the
video shut off prior to a reasonable taping of the period after the shot. Therefore,
I find that the Respondent violated this provision of the plan.

Third, the Respondent violated the
ground control plan by exceeding the amount of explosives that could be
detonated within each eight millisecond interval. The ground control plan
contained a scale distance formula that required an eight-millisecond delay.
Tr. I, 83. After reviewing the blast record provided by the company, Belcher
determined that two of the holes overlapped each other, thereby not complying
with the eight-millisecond delay requirement. Tr. I, 83-84, 88, 135-136; SX-17.
At hearing, the issue of the correct maximum weight of explosives per eight
millisecond interval was in dispute. Various witnesses and documents
represented that the number was 254.9, 419, and 419.5. Tr. I, 91-92, 171-173,
231-234; SX-17. The discrepancies between the original and corrected blast reports
appeared to be largely irrelevant, as both blast reports provided that “Max.
Allow. Chg. Wt. per 8 ms w/o Seismograph” was 354.8 pounds. SX-17; RX-A. No
seismograph was permitted under the plan, making the 354.8 figure the
appropriate one. This figure corroborates Belcher’s analysis and conclusion.

Any one of these violations of the
ground control plan would constitute a violation of §77.1000. The Secretary has
more than met its burden in proving that the combination of the three was a
violation of the regulation.

The Respondent’s repeated
admonitions that the hearsay evidence of an anonymous miner is inherently
unreliable are misplaced. See e.g. Resp.’s Post-Hearing Brief, at 11. The
Commission rules explicitly allow for the maintenance of anonymity for miner
informants. 29 C.F.R. §2700.61. “The purpose of the privilege is to protect the
public interest by maintaining a free flow of information to the government
concerning possible violations of the law and to protect persons supplying such
information from retaliation.” Bright Coal Co., Inc., 6 FMSHRC 2520,
2522-2523 (Nov. 1984). Furthermore, the Commission’s rules explicitly allow for
the admission of hearsay evidence, when such evidence is “material and relevant.”
Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135 (May 1984); see
also REB Enterprises, Inc., 20 FMSHRC 203, 206 (March 1998); 29 C.F.R.
§2700.63. Moreover, the Commission has stated that:

[P]roperly admitted hearsay testimony,
and reasonable inferences drawn from it, may constitute substantial evidence
upholding a judge's decision if the hearsay testimony is
surrounded by adequate indicia of probativeness and trustworthiness. Hearsay testimony
“may be treated as substantial evidence, even without corroboration, if, to a
reasonable mind, the circumstances are such as to lend it credence.”

Id. at 1135-1136 (citations omitted). I find that the
miner informant’s hearsay information told to Belcher was both probative and
trustworthy. To exclude it for the reasons provided by Respondent would
eviscerate the miner informant rule.

The
Violation was Significant & Substantial

I further find that the conditions
were Significant and Substantial in nature. S&S is described in section
104(d)(1) of the Act as a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a coal or other mine safety
or health hazard.” 30 U.S.C. § 814(d)(1). 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).

As is well recognized, in order to
establish the S&S nature of a violation, the Secretary 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 will be of
a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984); accord Buck Creek Coal Co., Inc., 52 F. 3rd. 133, 135 (7th Cir.
1995); Austin Power Co., Inc. v, Sec'y of Labor, 861 F. 2d 99, 103 (5th
Cir. 1988) (approving Mathies criteria).

It is the third element of the
S&S criteria that is the source of most controversies regarding S&S
findings. The element is established only if the Secretary proves “a reasonable
likelihood the hazard contributed to will result in an event in which there is
an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug.
1985). An S&S determination must be based on the particular facts
surrounding the violation and must be made in the context of continued normal
mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988)
(quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)).
The Commission has provided additional guidance: “We have emphasized that, in
accordance with the language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that must be significant and
substantial.” U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (August
1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

Further, “The Secretary need not
prove a reasonable likelihood that the violation itself will cause injury.” and
“the absence of an injury-producing event when a cited practice has occurred
does not preclude a determination of S&S” Cumberland Coal Resources, LP,
33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS
Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); Elk Run Coal Co.,
27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc.,
18 FMSHRC 853, 857 (June 1996)). The Commission and Courts have observed that
the opinion of an experienced MSHA inspector that a violation is S&S is
entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC
1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133,
135-36 (7th Cir. 1995).

The first element of Mathies—the
underlying violation of a mandatory safety standard—has been clearly
established. As to the second element of Mathies—a discrete safety
hazard, that is, a measure of danger to safety, contributed to by the
violation—has also been clearly established by the record. As discussed supra,
the cited condition contributed to the danger of a flyrock incident.

I find that the third element of
the Mathies test—a reasonable likelihood that the hazard contributed to
will result in an injury—has been satisfied here. The hazard of large rocks
flying into a populated area and a public road was likely to lead to an injury.
Under Mathies, the fourth and final element that the Secretary must
establish is that there is a reasonably likelihood that the injury in question
will be of a reasonably serious nature. The type of injury caused by a flyrock
making contact with an individual is death.

Respondent
argues that a violation can only be found to be S&S if it affected the
health and safety of miners. In the instant case, Respondent argues that no
miners were in danger, and the Secretary presented no evidence that flyrock
came anywhere near where a miner or other employee of the mine could have been
injured. Respondent argues that the Secretary failed to present evidence
showing how the inadequate taping would reasonably result in a serious injury.

Respondent’s argument that a
violation may only be S&S if it can lead to a serious injury of a miner, is
both bizarre and incorrect. While it is true that Congress passed the Mine Act
to ensure the health and safety of miners, the Commission has never interpreted
S&S in such a narrow fashion so as to limit it to the health and safety of
miners. Both §104(d) and the seminal Commission cases that developed the
criteria for S&S spoke only of the type of injury, not the status of the
individual who suffered such injury. See Mathies, 6 FMSHRC 1 (Jan.
1984), Cumberland Coal Resources, LP, 33 FMSHRC 2357 (Oct. 2011); Musser
Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257 (Oct. 2010). One need
not come up with an example that illustrates the absurdity of this position,
because this case does so in spades. To say that a violation that placed
persons who resided in the path of flyrocks at grave risk was not significant
and substantial because they may not meet the statutory definition of miners is
absurd. The Mine Act makes no such distinction when persons lives are at risk.

The
Violation was the Result of High Negligence and Unwarrantable Failure

In the
citation at issue, Belcher found that the violations were the result of high
negligence and an unwarrantable failure to comply with the standard. High
negligence is described as when “[t]he operator knew or should have known of
the violative condition or practice and there are no mitigating circumstances.”
30 C.F.R. §100.3(d), Table X. Conversely, moderate negligence is shown when
“[t]he operator knew or should have known of the violative condition or
practice, but there are some mitigating circumstances.” Id. Low
negligence is served for situations where there are “considerable” mitigating
circumstances. Id.

In the
instant case, Revelation was on notice that there had been previous flyrock
events at the mine. The S-4 Netley Branch Mine had a Blast Remediation Plan as
part of the Ground Control Plan, which indicated that there had been a previous
flyrock accident. SX-16; Tr. I, 126-127. Furthermore, Revelation was on notice
that strict compliance with the blast remediation plan was necessary in order
to prevent future flyrock accidents. Tr. I, 127, 180.

The plan
was explicit in its requirements that sufficient burden be left in front of the
shot, that the shot be videotaped, and that specific amounts of explosive be
used. Tr. I, 66, 73, 81-82; SX-13. Despite being on notice of these
requirements, Revelation violated the plan in each respect. The Respondent
presented some evidence that Wallen fell while trying to videotape the shot
because it was slick where he was standing. Tr. I, 251. However, the Respondent
took no precautions to avoid this possibility, such as using a tripod, despite
the adverse weather conditions that made a fall likely. Even laypersons know
that attempting to hold a video camera by hand can produce images flawed by
motion. Wallen’s lack of concern for producing a stable, clearly focused video
of sufficient length to be usable for post-shot analysis directly resulted in a
violation. Furthermore, Revelation presented no mitigating circumstances
regarding the other two violations that make up this citation. Revelation’s
choice to hire a blasting contractor does not mitigate its negligence, as the
mine operator bears ultimate responsibility to ensure that the ground control
plan is followed at all times. See Speed Mining, 528 F.3d 310 (4th
Cir. 2008); Buffalo Mining Co., 1 FMSHRC 1740 (Oct. 1979) (ALJ).

Having
found the requisite knowledge, the next issue is whether there were any
mitigating circumstances. I find that none existed. Therefore, I find the
Secretary’s designation of “high” negligence appropriate.

The
Commission has recognized the close relationship between a finding of
unwarrantable failure and a finding of high negligence. San Juan Coal Co.,
29 FMSHRC 125, 139 (Mar. 2007) see also Consolidation Coal Company, 22
FMSHRC 340, 353 (2000) (holding that if there is mitigation, an unwarrantable
failure finding is inappropriate). Emery Mining Corp., defines an
unwarrantable failure, as “aggravated conduct constituting more than ordinary
negligence.” Emery Mining Corp., 9 FMSHRC 1997, 2002 (Dec. 1987). Such
conduct may be characterized as reckless disregard, intentional misconduct,
indifference, or serious lack of reasonable care. Id. at 2004; see
also Buck Creek Coal, 52 F.3d 133, 135-136 (7th Cir. 1995).

Whether
conduct is “aggravated” in the context of unwarrantable failure is determined
by looking at all the facts and circumstances of each case to see if any
aggravating factors exist, including (1) the extent of the violative condition,
(2) the length of time that the violative condition existed, (3) whether the
violation posed a high degree of danger, (4) whether the violation was obvious,
(5) the operator's knowledge of the existence of the violation, (6) the
operator's efforts in abating the violative condition, and (7) whether the
operator had been placed on notice that greater efforts were necessary for
compliance.

Manalapan
Mining Co., 2013 WL 754106, *4 (Feb. 2013), citing IO Coal, 31
FMSHRC 1346 (Dec. 2009). While each factor does not need to be present in order
to find unwarrantable failure, all factors must be considered. Id.

The cited
condition involved three violations of the plan, each of which was in place to
prevent a flyrock incident. Though they occurred quickly, these three
violations in a single shot was somewhat extensive. The factor of the length of
time of the violation is inapplicable here, as shots occur quickly, and any
violations would occur just as quickly.

The
violation at issue here posed a high degree of danger. The inspector testified
that each of these three violations increased the likelihood of a flyrock
accident, which occurred in this instance. Tr. I, 103-104, 178-179. The
flyrocks from this site were large in size and travelled to areas where people
live and travel. Tr. I, 46. Additionally, the operator had been placed on
notice that greater efforts were necessary for compliance. As noted supra,
there were previous flyrock events at this site, and the mine was on a Blast
Remediation Plan to prevent future flyrock accidents. Furthermore, this mine
site was previously cited for flyrock events, and past citations are relevant
to the issue of whether Respondent had notice. IO Coal, 31 FMSHRC at
1353-1355. Respondent argued that these citations were issued prior to its
taking over the mine, however such arguments do not negate the notice that
these citations provided. Flyrocks can cause fatal injuries, yet Respondent
failed to strictly follow their Ground Control Plan as required. The operator
took no efforts in abating the violative condition prior to the flyrock
incident and citation. I find the unwarrantable failure determination to be
correct.

The
§103(k) Order No. 8257014 was Properly Issued

Issuance of
the 103(k) Order was necessary and proper in this instance. Section 103(k) of
the Act provides, in relevant part, that “[i]n the event of any accident
occurring in a coal or other mine, an authorized representative of the
Secretary, when present, may issue such orders as he deems appropriate to
insure the safety of any person in the coal or other mine.” 30 U.S.C. §813(k).

In a
companion case to the instant case, the Commission confirmed that a large rock
leaving a mine and landing in a residential area, with no injuries, constituted
an “accident” for purposes of issuing a 103(k) Order. Revelation Energy,
2013 WL 6792685 (Nov., 2013). The Commission rejected the operator’s arguments
that the definition of “accident” in §103(k) was limited to the more narrow
definition of “accident” in the definitions provided in 30 C.F.R. §50.2(h),
stating that the latter definition only applied for reporting purposes. Id.
at *4.

Section
50.2 plainly limits its application to terms “used in this part,” that is, Part
50 of MSHA's regulations (the reporting regulations). 30 C.F.R. § 50.2. In
contrast, the definition of ““accident” in section 3(k) applies to the entire
Mine Act, as section 3 of the Mine Act specifically states that the definition
of the term “accident” set forth in paragraph (k) applies “[f]or the purpose of
this Chapter ….” 30 U.S.C. § 802. Thus, section 3(k) is the applicable
provision for purposes of determining what constitutes an “accident” under
section 103(k).

Id.
The Commission “easily” concluded that such a flyrock event was an
“accident” for purposes of §103(k). The Commission’s decision is directly on
point and controlling for this case.

Citation
No. 8257006 was Properly Issued for a Violation of 30 C.F.R. §77.1000

Citation No.
8257006 was a 104(d)(1) citation issued on October 22, 2010. It was marked
Highly Likely, Fatal to 1 person, High Negligence, and Unwarrantable Failure. The
Citation states:

The Operator failed to
follow their acknowledged ground control plan to prevent a flyrock event that
occurred on October 7, 2010, during blasting operations. A blast remediation
plan outlining specific blasting safety pre-caution measures was incorporated
into the ground control plan and acknowledged on March 17, 2009 in response to
a flyrock event that occurred on January 31, 2009. The purpose of that
acknowledged plan was to prevent a similar occurrence of flyrock. Two smaller
than designed safety catch benches (5 high x 10 wide) were constructed, instead
of the designed size of 10 high x 15 wide safety catch bench, prior to the
October 7th blast. The ground control plan states that when the catch bench
cannot be constructed, then a solid 20 foot wide berm will be left at the
outcrop edge of the pit. Rolland Davis, General Mine Manager stated that he was
familiar with the acknowledged ground control plan and knew what size the
safety catch bench should have been before blasting operations occurred. The
blast was detonated in an area above the Upper Alma coal seam, causing a large
rock measuring 4.5 x 4.5 x 6, to leave the blast site, and roll down the
hillside, jump the safety catch benches, leave the mine property and continue
rolling down the hillside until crossing a county road (Old Shoe Branch of
Barrenshee Creek) and landing in the creek. The large rock narrowly missed
striking two residences by approximately 40 to 50 feet. This type of practice
presents a high degree of risk of serious injury or death to residents living
below the mine. The mine Operator has engaged in aggravated conduct
constituting more than ordinary negligence by not following their acknowledged
ground control plan. This violation is an unwarrantable failure to comply with
a mandatory standard.

SX-1.

The
Citation references 30 C.F.R. §77.1000, which as discussed supra,
requires an operator to follow the ground control plan.

The
Secretary contends that item four of ground the control plan required
Revelation to build a 15-foot by 10-foot catch bench, when practical. And in
the instant case, it was practical. As such, Revelation’s construction of two
10-foot by 5-foot catch benches in lieu of one 15-foot by 10-foot catch bench
was a violation of the plan. If the larger bench was not practical, then the
Secretary contends that the plan required Revelation to follow the alternate
provisions laid out.

The
Secretary argues that the Respondent’s failure to comply with the ground
control plan was highly likely to result in fatal injury to at least one
person. This is due to the fact that the terrain below the S-1 Hunt’s Branch
Mine is quite steep and slopes sharply towards the homes below, where many
residents live. Further, the Secretary argues that the violation was S&S
because an eight-ton flyrock is highly likely to result in fatal injury to
persons in proximity to it.

The
Secretary argues that Revelation was highly negligent in failing to comply with
their blast remediation plan because Revelation knew the mine had a propensity
to produce large flyrock, knew that the mine sat above homes and a public road,
and still did not comply with the catch bench requirements of the plan. The
Secretary argues for the same reasons that the violation was an unwarrantable
failure, adding that Revelation had not been in compliance for almost a year.

With regard
to Citation No. 8257006, the Respondent argues that the ground control plan
only required it to build a 10 by 15 foot catch bench if practical. Relying on
the indefinite article in the sentence, Respondent further argues that the
alternative procedures were only necessary if no catch bench could be
constructed. The Respondent also argues that even if a 10 by 15 foot catch
bench had been constructed, there is no guarantee that such a catch bench would
have been able to stop the flyrock at issue.

Respondent
argues that the violation was not S&S because the 10 by 15 foot catch bench
would not have caught the flyrock, meaning that the two smaller catch benches
did not make it likely that a serious injury would occur. Respondent argues
that the violation was not high negligence or unwarrantable failure because it
was either due to a reasonable interpretation of the plan, or an honest
mistake. For these reasons, Respondent argues that if the violations are upheld
the penalties should be reduced and modified to 104(a) citations, with low
negligence and no S&S designation.

Based upon the totality of the
evidence presented at hearing, the Secretary has met its burden of proving that
Revelation violated §77.1000 by failing to follow its ground control plan in
constructing its catch bench.

Paragraph four of the Blast
Remediation Plan, which is quoted in full supra, states in relevant part
that a “15 foot catch bench...with a 10 foot high berm, will be installed on
all major seams...to be mined at all times when practical, prior to blasting in
the area.” SX-3. The provision further states that “[i]n the event that a catch
bench cannot be constructed, then items [19-24] of the Blast Remediation Plan
for Areas where a Catch Bench is not constructed will apply.” SX-3. The plain
language of the plan, combined with the inspector’s testimony, makes it clear
that the Respondent was required to build a 10 by 15 foot catch bench if it was
practical to do so. If the conditions made the construction of such a catch
bench impractical, then the Respondent was required to follow the alternate
procedures detailed in the plan. Rather than building a 15 by 10 foot catch
bench at the Upper Alma seam, which is one of the “major seams” specified in
the plan, Respondent constructed two catch benches that measured between five
and 10 feet high and five feet wide. Tr. II, 25, 114.

Respondent’s interpretation of the
plan is unreasonable as it essentially makes much of the plan meaningless. The
Respondent argued that it was impractical to construct a 10 by 15 foot catch
bench below the Upper Alma Seam. Tr. II, 119, 124-128, 144. Therefore, instead
of following the alternate procedures, or consulting MSHA about its alternate
interpretation, it chose to build two five by ten foot catch benches. The
Respondent argued that because the plan specified that the alternative
procedures should be followed “in the event that a catch bench can’t be
constructed,” rather than stating “in the event that the catch bench
can’t be constructed,” the alternate procedures were only required when no
catch bench could be constructed.[30] (emphasis
added.) Relying entirely on the use of the indefinite article (“a”), rather
than the definite article (“the”), Respondent argued that it took this course
of action because it interpreted the alternate procedures in the plan as only
being required in no catch bench could be constructed.

Based on this interpretation,
Respondent was free to determine the practicality of building the required
catch bench, and if it determined that it was impractical, it could build
whatever size catch bench it so desired. The Respondent’s argument transforms
the size requirement in the plan to a mere suggestion that can easily be
ignored so long as some sort of catch bench was constructed.[31]
The Respondent cites the general principal of contract law that the
interpretation “which gives meaning to all words and provisions of a contract
is favored.” Eastern Gas and Fuel Associates v. Mid-west Raleigh, Inc.,
374 F.2d 451, 454 (4th Cir. 1967). However, the Respondent’s
contorted attempts to give meaning to a single indefinite article essentially
negates the meaning of the entire provision.[32]
I do not credit Respondent’s witnesses as to their contemporaneous
interpretation of the provision. If anything, this interpretation appeared to
be a post hoc rationalization for the open flouting of a plan provision.

I find that the provisions of the
ground control plan gave Respondent two options. The first option was that it
was required to construct a 15 by 10 foot catch bench, if conditions made such
a catch bench practical to construct. If it was impractical to construct a 15
by 10 foot catch bench, then Respondent was required to follow the alternate
procedures in the plan. It could not simply construct one or several smaller
catch benches to suit its convenience.

Respondent’s second argument
concerning the path of the flyrock is similarly unavailing. At hearing,
Respondent presented testimony of how the flyrock followed a different path
than that presumed by the inspector and that a 10 by 15 foot catch bench would
not have been any more successful at stopping the flyrock that was projected on
October 7, 2010. Tr. II, 102, 105. Section 77.1000 does not require that a
flyrock occur for the regulation to be actionable. The regulation simply
requires that an operator follow the ground control plan, and any failure to do
so is a violation of the regulation. I find the inspector’s testimony that his
investigation concluded that the flyrock followed such a path as would have
been stopped by the 10 by 15 foot catch bench to be plausible. However even if
this were not the case, and Respondent proved that the flyrock would not have
been stopped by the required catch bench, it’s failure to construct the catch
bench would still have been a violation of the regulation.

The
Violation was Significant & Substantial

I further find that the conditions
were Significant and Substantial in nature. The first element of Mathies—the
underlying violation of a mandatory safety standard—has been clearly
established. As to the second element of Mathies—a discrete safety
hazard, that is, a measure of danger to safety, contributed to by the
violation—has also been clearly established by the record. The 15 by 10 foot
catch bench required in the plan, as well as the alternate procedures, were
intended to prevent flyrock from reaching public areas. Failure to construct
such obstacles to flyrock contribute to the hazard of a large flyrock entering
public areas and making contact with individuals.

I find that the third element of
the Mathies test—a reasonable likelihood that the hazard contributed to
will result in an injury—has been satisfied here. The hazard of a rock several
feet in diameter and weighing several tons flying into a populated area and a
public road was likely to lead to an injury. Under Mathies, the fourth
and final element that the Secretary must establish is that there is a
reasonably likelihood that the injury in question will be of a reasonably
serious nature. The type of injury caused by a flyrock making contact with an
individual is death.

The
Violation was the Result of High Negligence and Unwarrantable Failure

In the
citation at issue, Belcher found that the violations were the result of high
negligence and an unwarrantable failure to comply with the standard. The
preamble to the Blast Remediation Plan stated that a flyrock accident had
occurred at the mine in 2009 causing a large boulder and another rock to
project off the mine property. SX-3, 9; Tr. II, 27-28, 62-64. The inspector
testified that the mine site had at least three or four different flyrock
events in the past. Tr. 23-24. Therefore, Revelation was aware that the mine
had a propensity to produce large flyrocks. Furthermore, Revelation knew that
the mine was located above residences and a county road, and that the terrain
between the mine and these areas was very steep. Tr. II, 23-24, 28, 57-59. It
was precisely because of these conditions and the mine’s history that the Blast
Remediation Plan specified that Revelation was required to construct a 15 by 10
foot bench or take alternate procedures. SX-3, 16; Tr. II, 24, 37. In spite of
this information, Revelation constructed two smaller catch benches, at the
minimum size that their equipment could construct them. Tr. II, 61, 68,
130-132.

Revelation
argued that it employed a reasonable interpretation of its ground control plan.
However, as I have found that interpretation to be unreasonable, I do not find
that it constituted a mitigating circumstance. If Revelation believed at the
time that its interpretation of the plan was reasonable, then it should have
called MSHA and asked for advice. Tr. II, 66-69. Alternately, if it believed
that its method of building two smaller catch benches was safer, then it should
have sought to modify that portion of the plan. Tr. II, 67. Revelation availed
itself of neither of these options. Therefore, I find that violation was the
result of high negligence.

The
violation was also an unwarrantable failure to comply with the standard. As
discussed supra, the operator had knowledge of the violation, it knew
the history of previous flyrock events, and the violation at issue posed a high
degree of danger. Furthermore, the non-compliant catch benches were
approximately half the size of those required and had been in place for a
significant period of time prior to the citation. Revelation constructed these
catch benches in open defiance of the plan. Prior to issuance of the citation,
Revelation took no efforts in abating this condition. For the foregoing
reasons, I find that the violation was an unwarrantable failure.

Penalty

Having
affirmed the Secretary’s determinations in all respects no deviation in the
civil penalty is necessary. I have considered each of the six statutory
criteria set forth in Section 110(i) of the Act, and find that the Secretary’s
proposed penalties are appropriate. 30 U.S.C. §820(i). As discussed supra,
the mines had a history of previous violations, Respondent had high negligence
in each citation, and these citations were found to be S&S. The parties
have stipulated that the proposed penalties will not affect Revelation’s
ability to remain in business and that Revelation abated the violations in good
faith. JX-1; Tr. I, 19-20. Within the calendar year prior to the issuance of
Citation 8257006, Revelation produced 304,734 tons of coal, with the S-1 Hunt’s
Branch Mine producing 177,984 tons. SX-10. Within the calendar year prior to
the issuance of Citation 8257015, Revelation produced 604,734 tons of coal,
with the S-4 Netley Branch Mine producing 425,000 tons. SX-10.

ORDER

For the reasons set
forth above, the citations are AFFIRMED as indicated. Revelation Energy,
LLC, is ORDERED to pay $23,800.00 for the violation set forth in
Citation No. 8257006 and $52,500.00 for the violation set forth in Citation No.
8257015. Revelation shall pay the Secretary of Labor the total sum of
$76,300.00 within 30 days of the date of this decision.[33]

/s/
Kenneth R. Andrews   

Kenneth R. Andrews

Administrative Law Judge

Distribution:
(Certified Mail)

Willow
Eden Fort, Esq., U.S. Dept. of Labor, Office of the Solicitor, 618 Church St.,
Suite 230, Nashville, TN 37219-2440

David J. Hardy, Esq. &
Christopher D. Pence, Esq., Hardy Pence, LLC, 500 Lee St. East, Suite 701,
Charleston, WV 25301

/mzm

[1] Hereinafter,
the joint exhibits will be referred to as “JX” followed by the number. Similarly,
the Secretary’s exhibits will be referred to as “SX” and Respondent’s exhibits
will be referred to as “RX.”

[2] At the time of hearing, Todd Belcher had been working
for five years as a surface and ground control specialist for MSHA at the
District 6 office in Pikeville. Tr. I, 26-27. Prior to working for MSHA,
Belcher worked in the engineering department at Central Appalachian Mining
(CAM) tracking the permitting and application process for one year from
2006-2007. Tr. I, 32-33. Prior to that, Belcher worked for 21 years as an
inspector and then supervisor for the Commonwealth of Kentucky at the
Department for Surface Mine Reclamation Enforcement. Tr. I, 33. He has an
Associate’s degree in Mining Technology from Pikeville College. Tr. I, 38.

As a ground control
specialist with MSHA, Belcher’s primary responsibilities are to ensure that adequate
plans for ground control plans are submitted and acknowledged throughout the
District, and to perform accident and regular investigations as needed. Tr. I,

27. Belcher had attended a two-week training on accident investigation at
    Beckley, and had performed approximately 10-12 accident investigations since
    coming to MSHA. Tr. I, 27-28. Most of the accident investigations took place at
    surface mines. Tr. I, 28. Approximately half of these investigations were flyrock
    accidents, and the remainder were primarily equipment accidents. Tr. I, 28.

[3] Austin Powder was also served with citations and
violations for the fly-rock incident. Tr. I, 273.

[4] A “shot” is synonymous with the term “blast.” The
detonation that occurs after a hole is drilled and loaded with explosives is a
“shot.” Tr. I, 40. Each blast or shot is assigned a number. Tr. I, 61. Shots
are numbered sequentially, and are reset at the beginning of each calendar
year. Tr. I, 229.

[5] The
overburden or spoil is the rock that overlies the coal. It can consist of
sandstone, shale, and similar rock. Tr. I, 30.

[6] Robert
Stanley was the day shift foreman at the S-4 Mine on 12/21/2010. Tr. I, 191. This
shift lasted roughly from 5 am-5 pm. Tr. I, 191. Stanley began his mining
career in 1994, and has worked in surface mining since. Tr. I, 191-192. He was
a Kentucky and West Virginia certified coal miner and foreman, as well as a
Kentucky certified EMT and an MSHA limited instructor. Tr. I, 192. Stanley had
worked at the S-4 Mine since April 2010. Tr. I, 193. He reported to Roland
Davis, the general manager of the mine. At that time, Davis was also managing
the Hunts Branch S-1 mine. Tr. I, 194.

[7] He
communicated with the certified blaster, Shawn Wallen, at Austin Powder from
time to time. Tr. I, 194-195. Stanley would usually tell Wallen in the early
mornings what areas needed to be blasted. Tr. I, 195. Revelation relied on
Austin Powder, and did not have someone responsible for laying out Wallen’s
shot or supervising Wallen. Tr. I, 195.

[8] On
December 21, 2010, Wallen was employed by Austin Powder Company as a certified
blaster at the Revelation S-4 Mine. Tr. I, 226. Wallen had been working at that
mine since April 2010, and his shift was from 10 pm until approximately 6 am.
Tr. I, 227-229. His supervisor was Dana Hamilton, and his contact at the mine
was Superintendent Robbie Stanley. Tr. I, 227. Part of Wallen’s job required
him to communicate first thing in the morning with Stanley about the drill
bench, road conditions, the areas where shooting was going to occur, as well as
the plan for the day. Tr. I, 227.

[9] The video
submitted into evidence appears to be shut off before any motion that would
indicate that the person operating the camera was falling. SX-18.

[10] In the video it appears that the vehicle has its
headlights on and is moving, indicating that someone was operating it. SX-18. It
would have been illegal to have someone sitting in the vehicle during the blast.
Tr. I, 259-260.

[11] Dana Hamilton had worked as a certified blaster with
Austin Powder S-1 Mine since October 13, 2009. Tr. II, 135-136, 139. Hamilton
began blasting work in 1982 and became a certified blaster in 1984. Tr. II,

136. As part of the certification process, Hamilton worked two years on a
     powder crew and took two Kentucky examinations. Tr. II, 136-137.

[12] The
“highwall” is a vertical rock wall that remains after the vertical holes are
drilled and blasted. Tr. I, 31. To “pre-line” or “pre-split” a highwall means
to drill a separate line of holes separate from the production holes in as
straight a line as possible to crack the wall in a straight line. Tr. I, 32.

[13] Stanley testified that the holes with a “V” on them
were unloaded holes. Tr. I, 210. Wallen testified that the four holes marked
with a “V” were voided, meaning that there were no explosives loaded. Tr. I,
239.

[14] Belcher
was not sure if Wallen completed the shot report before or after the flyrock
event. Tr. I, 155-156. Shawn David Wallen had been a certified blaster for four
years at the time of hearing, which means that he had classroom training,
worked two years on a surface mine with a powder crew and blaster, and passed
two examinations. Tr. I, 224-225. Wallen had worked as a certified blaster
since receiving his certification. Tr. I, 226.

[15] Belcher testified that he has reviewed thousands of
blast reports during his years mining. Tr. I, 51. A blast report has several
components, including the company name, the amount of holes that are drilled,
the depth of the holes, the amount of explosives loaded, the amount of
stemming, a date and time, and a house number and direction. Tr. I, 50-51. Blast
reports are used to document the amount of explosives used to move certain
amounts of rock. Tr. I, 51-52.

[16] The plan
states, “A video camera will be used to monitor each shot and record the area
prior to, during and after the blast.” SX-16, 8.

[17] The two
holes that Belcher found that discharged without an 8 millisecond delay were
number 1752 and 1760. Tr. I, 134. Wallen disagreed with the Inspector’s assessment
concerning whether two holes had the required 8 millisecond delay. Tr. I,
245-246.

[18] The State of Kentucky has such a provision, but MSHA
does not. Tr. I, 90.

[19] In his
testimony, Wallen first stated that the correct figure was 254.9. Then, he
stated that the correct figure was 419. The amended shot report lists 419.5.
Tr. I, 232-234; RX-A.

[20] Stemming is process of placing material at the top of
the hole, so as to prevent rock from shooting out of a cylindrical hole, like a
bullet from a gun. Tr. I, 102-103. Stemming forces the energy of the blast to
break the rock, rather than eject it from the hole. Tr. I, 103.

[21] Stanley
denied that there were any problems with Revelation encroaching on the burden
area. Tr. I, 209.

[22] Dewey
Reed is also called “Bruce Reed.” Tr. II, 138.

[23] Davis is
a certified surface mine foreman in Kentucky, West Virginia, and Virginia. Tr.
II, 89. He is a certified MSHA limited trainer. Tr. II, 89. Davis began his
surface mining career in 1978. Tr. II, 89. He is not a certified blaster. Tr.
II, 89-90. In his position as General Manager, Davis’s duties were to manage
the mine costs and mine production, as well as setting the mine plans. Tr. II,
87-88. At the time of the cited event, Revelation had been in control of the mine
for approximately one year. Tr. II, 88. Prior to Revelation, CAM Mining was the
operator of the mine. Tr. II, 88. Revelation prepares the areas for the
blasting company to blast, however Davis had no involvement with drilling,
loading, or detonating. Tr. II, 90.

[24] The blast
remediation plan is also sometimes called the “blasting plan.” Tr. II, 24.

[25] Item four of the Blast Remediation Plan states:

4) A
15 foot wide catch bench (measured from the top of the berm to the high wall)
with a 10 foot high berm, will be installed on all major seams (e.g.
Williamson, Thacker, Cedar Grove, & Alma) to be mined at all times when
practical, prior to blasting in the area. The catch bench will be cleaned prior
to the next shot. In the event that a catch bench can’t be constructed, then
items 18-23 [sic] of the Blast Remediation Plan for Areas where a Catch Bench
is not constructed will apply.

SX-3, 11. After the flyrock
event, Revelation removed the phrase “when practical” from item four. Tr. II,
118.

[26] The plan mistakenly references items 18-23, but it is
clear from the document that the correct items are 19-24, under the heading,
“Blast Remediation Plan for Areas where a Catch Bench is not Constructed.” Tr.
II, 32; SX-3, 12. Items 19-24 state:

19)
In protection zone areas (see page 17), for the first breakdown shot which has
a maximum depth of 25’, the first row of holes will be pre-split or break line
drilled and located a minimum of 20’ from the crop. If company elects to, the
pre-split can be drilled to the coal.

20)
For the first breakdown shot of the protection zone, a complete free face
(excess burden removed) will be maintained. The face and the direction of the
blast are to be oriented away from the control structure and towards the open
pit.

21)
The outside 2 rows of holes in the protection zone will be decked as shown on
the attached diagrams. It should be noted that the diagrams are typical and
that the actual shot will be based on field conditions. A minimum of 10’ true
burden will be maintained from the pre-split to the first row of production
holes.

22)
The protection zone is not considered a “No Spoil Area.” A “No Spoil Area” is
any location of a shot where material, rocks, and spoil cannot be cast, pushed,
or ejected onto the down slope beyond the designated safety bench.

23)
All shots within the protection zone will be designed to minimize the back
pressure toward the no spoil side.

24)
The out slope in the protection zone will be videotaped prior to and directly
after the shot to monitor the change in cracks or hill seams. After 2-3 shots,
if the out slope visibly does not show that it is being stressed by the shots
and also if decking is causing secondary blasting due to improper breakage
(e.g. unmanageable rock sizes) or causing unsafe ragged walls, then the shot
deck will be evaluated and changed with the approval of DMRE.

SX-3, 12.

[27] The
alternate procedures listed in items 19-24 could have been done at the mine.
Tr. II, 167.

[28] In other
areas where it was not possible to construct a 15 by 10 foot catch bench,
Revelation followed the blast remediation plan. Tr. II, 116.

[29] Davis also participated in an investigation, which
consisted of assisting or accompanying the Kentucky state inspectors. Tr. II,

96. Davis disagreed with Belcher’s conclusion as to the path of the rock,
    stating that it went 130-140 feet to the right, and did not make contact with
    the benches. Tr. II, 98-111.  

After the evidence had
been reviewed, Davis was interviewed by MSHA and the Kentucky investigators.
Tr. II, 111. MSHA raised the 15 by 10 foot catch bench issue, and Davis
responded that Revelation tried to build such a catch bench in October 2009. The
out-slope was too steep, and there was no dirt material, so building the 15 by
10 foot catch bench was not possible. Tr. II, 112.

[30] Respondent similarly suggested that the provision
should have read “such catch bench.”

[31] Respondent
focused much of its evidence and argument at hearing in trying to prove that
construction of a 15 by 10 foot catch bench was impractical. However, after the
citation, a 15 by 10 foot catch bench was constructed. Tr. II, 82-83.

[32] Respondent’s argument that every letter and word of
the plan must be accepted in only its strict literal meaning, without
consideration of the purpose of each provision or the possibility of mistake,
is further weakened by the fact that the section outlining the alternative
procedures had an enumerating error.

[33] Payment should be sent to: MINE SAFETY AND HEALTH
ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST.
LOUIS, MO 63179-0390.