FMSHRC ALJ decision Docket KENT 2012-749, KENT 2012-904, KENT 2012-1085 Decided August 21, 2015 Mixed result Judge John Kent Lewis

Secretary of Labor v. Nally & Hamilton Enterprises, Inc.

Secretary of Labor v. Nally & Hamilton Enterprises, Inc. (FMSHRC KENT 2012-749, et al.): Highwall orders split with $51,484 total penalty

What's the rule today?

This ALJ decision was superseded by the Commission's decision in the same case. Ezel starts from the controlling decision and answers your situation under current law, with citations.

ALJ decision, later reviewed by the Commission

This decision was issued by an FMSHRC Administrative Law Judge, but it was not the final word in the case: the Commission directed review, and the Commission's decision is the one citable as precedent.

Read the Commission's decision in this case

About this page: The plain-English summary and decision snapshot below were written by Ezel based on the official FMSHRC release. The full text is the Commission's own document.

Read the official release (fmshrc.gov)

Plain-English summary

Nally & Hamilton contested highwall and examination citations at its Kentucky surface coal operations, while resolving several other citations by settlement. Judge John Kent Lewis affirmed two early violations involving loose material and an inadequate examination, but reduced each to non-S&S, low negligence, and no unwarrantable failure, with penalties of $4,000 each. He affirmed two later orders as S&S, high-negligence unwarrantable failures because the operator had been warned about similar hanging material and still failed to address or record it, assessing $18,742 for each. The Judge vacated a scaling order because the Secretary did not prove that the cited rock was loose or likely to fall. Including the settled matters, he affirmed seven citations and orders as amended, vacated one order, and assessed total penalties of $51,484.

Decision snapshot

Cited standards: 30 C.F.R. §§ 77.1001, 77.1005(a), and 77.1713(a)
Outcome: Seven citations and orders were affirmed as amended, one scaling order was vacated, and total penalties of $51,484 were assessed.
Key point: Similar highwall conditions can support heightened negligence and unwarrantable failure after clear notice, but the Secretary still must prove that the particular cited material was loose and hazardous.

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

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

Petitioner,

NALLY
& HAMILTON ENTERPRISES, INC.,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. KENT 2012-749

A.C.
No. 15-19611-281692

Mine:
Tinsley Branch

Docket
No. KENT 2012-904

A.C.
No. 15-19301-284689

Docket
No. KENT 2012-1085

A.C.
No. 15-19301-287868

Mine:
Bear Branch

AMENDED DECISION
AND ORDER[1]

Appearances: Anthony
M. Berry, Esq., U.S Department of Labor, Office of the Solicitor, Nashville, TN
for the Secretary

Billy R. Shelton, Esq., Jones, Walters,
Turner & Shelton, PLLC, Lexington, KY & Thomas Hamilton, Esq., Saltsman
& Willett, PSC, Bardstown, KY for Respondent

Before:
Judge Lewis

STATEMENT
OF THE CASE

This
proceeding is before the undersigned Administrative Law Judge on Petitions for
Assessment of Civil Penalty filed by the Secretary of Labor against Respondent,
Nally & Hamilton Enterprises, Inc. (“Respondent” or “Nally & Hamilton”)
pursuant to Section 104(d) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. §815(d).

PROCEDURAL
HISTORY

On November 1, 2011, MSHA Inspector
Larry Wayne Stubblefield went to Respondent’s Bear Branch Mine to terminate an earlier
citation unrelated to the instant proceeding. While there, he issued Citation
No. 8366644 and Order No. 8366645 under Section 104(d)(1) of the Federal Mine
Safety and Health Act of 1977 (“the Mine Act”). Respondent later contested
these citations and they were placed in Docket No. KENT 2012-1085. On November
19, 2011, he

returned
to Bear Branch Mine as a result of an anonymous complaint filed under Section
103(g) of the Mine Act. While at the mine, Stubblefield issued three citations:
Nos. 8366655, 8366656,

and
8366657, under Section 104(d)(2) of the Act. Respondent also contested these
citations and they were placed in Docket No. KENT 2012-904. This docket also
included Citation No. 8344920, which was issued on June 13, 2011 by MSHA
Inspector Elmer Hall Jr. under Section 104(d)(1) of the Mine Act.

On
May 18, 2013, these matters were set for hearing and consolidated with Docket
Nos. KENT 2012-749 and KENT 2014-98. The parties agreed to settle KENT 2014-98
and a Decision and Order Approving Settlement in that matter was issued on May
4, 2015. A hearing was held in Lexington, KY on February 10, 2015 at which the
parties submitted testimony and documentary evidence. The parties announced at
the outset of the hearing that the two citations contained in Docket No. KENT
2012-749 had been settled[2] and that Citation No.
8344920 in KENT 2012-904 had likewise settled.[3] The hearing was held on
the remaining five citations with a total assessed penalty of $136,926.00. After
the hearing, each party submitted a post-hearing brief and a reply brief.

STIPULATIONS

The parties have
entered into several stipulations, admitted as Parties’ Joint Exhibit 1.[4]
Those stipulations include the following:

1. Nally
& Hamilton Enterprises, Inc. was an “operator” as defined in the Federal
Mine Safety and Health Act of 1977, as amended (“the Mine Act”), 30 US.C. §
802(d), at Bear Branch (Mine Identification No. 15-19301).

2. Bear
Branch (Mine Identification No. 15-19301) was a “coal or other mine” within the
meaning of the Mine Act, 30 U.S.C. § 802(h).

3. At
all relevant times, the products of Bear Branch (Mine Identification No.
15-19301) entered commerce, or the miner operations or products affected
commerce, within the meaning of the Mine Act, 30 U.S.C. §§ 802(b) and 803.

4. Nally
& Hamilton Enterprises, Inc. is subject to the jurisdiction of the Federal
Mine Safety and Health Review Commission and its designated Administrative Law
Judges pursuant to 30 U.S.C. §§ 815 and 823.

5. 30
C.F.R. §§ 77.1001, 77.1713(a), and 77.1005(a) are each mandatory health and
safety standards as the term is defined in Section 3(l) of the Mine Act.

6. Payment
by Respondent of the proposed penalty of $80,700.00 in KENT 2012-1085 will not
affect Respondent’s ability to remain in business.

7. Payment
by Respondent of the proposed penalty of $56,226.00 for the remaining
violations in KENT 2012-904 will not affect Respondent’s ability to remain in
business.

8. The
citations and/or orders contained in the Exhibits A attached to the Secretary’s
petitions in KENT 2012-1085 and KENT 2012-904 are authentic copies of the
citations and orders at issue in this proceedings with all appropriate
modifications and abatements, if any.

9. Citation
No. 8366644 was properly served by a duly authorized representative of the
Secretary of Labor, Mine Safety and Health Administration, upon an agent of
Respondent on November 1, 2011.

10. Order No. 8366645 was
properly served by a duly authorized representative of the Secretary of Labor,
Mine Safety and Health Administration, upon an agent of Respondent on November
1, 2011.

11. Order No. 8366655 was
properly served by a duly authorized representative of the Secretary of Labor,
Mine Safety and Health Administration, upon an agent of Respondent on November
19, 2011.

12. Order No. 8366656 was
properly served by a duly authorized representative of the Secretary of Labor,
Mine Safety and Health Administration, upon an agent of Respondent on November
19, 2011.

13. Order No. 8366657 was
properly served by a duly authorized representative of the Secretary of Labor,
Mine Safety and Health Administration, upon an agent of Respondent on November
19, 2011.

14. Respondent produced 383,754
tons of coal at Bear Branch Mine in 2010.

(JX-1,
Tr. 8).[5]

DOCKET
NO. KENT 2012-1085

I.
Summary
of Testimony

On November 1, 2011 Inspector Larry
Wayne Stubblefield[6] went to Bear Branch Mine
to review ground control revisions submitted in response to a citation
(unrelated to the instant matter) issued on the safety benches.[7]
(Tr. 19-20, 46-47). He was conducting an E-16 spot inspection to terminate that
citation.[8] (Tr. 21). Upon arrival,
he reviewed the mine file. (Tr. 21-22).

Stubblefield arrived at Bear Branch at
around 1 p.m. and traveled to the Cow Head area. (Tr. 22). At around 1:30-1:40
p.m. he went to the Beatty Branch area and measured the highwall at the
Leatherwood Seam 5A pit. (Tr. 22-23). He used a TruPulse 200 Laser Rangerfinder
and inclinometer and determined that the area was 265 feet long and 89 feet
tall. (Tr. 25, 27, 32).

Developing such a highwall involved finding
a coal seam and measuring with a rock level to determine where the highwall
should be established. (Tr. 103). A dozer then installed a road to the top
bench (where the drilling occurs). (Tr. 103, 126). Once the location was
determined the operator removed trees and brush to create a blasting pad for
the drill and set up a blasting plan (or series of holes on a grid). (Tr.
48-49, 103-104, 126-127, 138, 219). The drill could not run while vegetation
was in place. (Tr. 49). Removing loose material aids in keeping the holes open.
(Tr. 219-220). Holes are then drilled down to the coal level. (Tr. 126). The
last hole was placed two or three feet from where the highwall should be
established. (Tr. 49, 138). However, blasting is not an exact science, and the
distance the wall will form behind the last hole depends on the strata of rock.
(Tr. 49-50, 77-78). The break can be farther back than expected. (Tr. 77-78). As
a result, vegetation must be removed some distance behind where the wall is
planned, though Stubblefield did not know the exact distance. (Tr. 28-29,
49-50, 138-139). A powder crew then loads and shoots. (Tr. 127). If more of the
wall is blasted away than intended, excavators can be used to remove vegetation
close to the edge. (Tr. 78-79).

A dozer or excavator could be used to
check if material on the side of the wall was solid. (Tr. 51, 116-117). This
first occurs when there is 10 feet of exposed wall then again as each 10 to
20-foot step of material is removed. (Tr. 118-119). Equipment can be used to
reach up and check areas and, if the rock is loose, the equipment will take it
down. (Tr. 117, 128-129). Soft slate can be smoothed down while rocks are
pulled out. (Tr. 129). If a rock is stuck or does not fall, it is presumably
stable and the operator will not pry it loose. (Tr. 117, 129-130). Eventually
the wall would be over 60 feet tall and too high to reach with equipment, but
the higher materials should already be cleaned on earlier steps. (Tr. 119,
134). The highwall cleaning process was part of an explicit policy in place
that was discussed with dozer operators. (Tr. 133).

At hearing, Stubblefield reviewed
Respondent’s ground control plan in place on the day at issue (RX-1) and the
revised ground control plan that was put submitted on November 22, 2011 (RX-2).
(Tr. 55-56). That earlier plan contained nothing about removing trees or root
balls from the crest of the highwall. (Tr. 57). The earlier plan also did not
define a “safe distance” for a buffer zone. (Tr. 57-58, 104). Respondent would
just remove any material it believed could fall in and would leave anything
that it believed was stable, regardless of distance. (Tr. 105). The revised
plan developed by MSHA and Tracy Creech defined that distance as ten feet from
the edge of the high wall.[9] (Tr. 59, 80, 104). However,
no citations were issued November 1 for violation of the ground control plan;
the citations were issued for violations of mandatory standards. (Tr. 57, 81). Since
the revision, failure to remove material within 10 feet of the wall would be a
violation of the ground control plan and the standard, but the standard
predated the revision. (Tr. 81). At some point Creech likely talked to
employees about the new ground control plan. (Tr. 136-137).

Stubblefield found that the instant
highwall had loose tree roots, trees standing on the edge of the wall and dirt,
root balls, and large rocks hanging over the crest.[10]
(Tr. 22-24, 26-27, 58, 68, 88-89, 91, GX-4 p.1-6). The rocks appeared brown and
consisted of shale. (Tr. 27). Stubblefield and Charles Baker could not tell the
exact distance the trees were from the edge and did not go to the top of the
highwall to find out.[11] (Tr. 51-52, 58, 107). Stubblefield
believed they were right up to the edge. (Tr. 52, 91). Baker believed they were
15-20 feet from the edge. (Tr. 107). No trees were hanging over the crest,
which would make the trees more likely to fall. (Tr. 52).

Inspector Ratliff, who had issued the
previous citation, told Stubblefield he had informed Respondent’s mine foreman
Charles Baker that the top of highwalls needed to be cleaned. (Tr. 19-21, 72). Stubblefield
did not know if Ratliff mentioned root balls or trees. (Tr. 47, 72). Baker did
not recall this meeting and did not recall being told there was a problem with
vegetation on the crest or hanging over the highwall. (Tr. 106).

Stubblefield believed Respondent should
have scaled back loose material during the initial development of the wall to
ensure it was away from the edge. (Tr. 28, 30, 76). The buffer zone should have
been 10-12 feet farther back than the anticipated wall location to ensure
nothing was on the edge of the highwall. (Tr. 76-78). Based on the conditions
present, this buffer zone was not created. (Tr. 78). It was possible the blast removed
material farther back than Respondent anticipated. (Tr. 78, 134-135). Creech
believed this is what happened. (Tr. 139-141). However, he conceded that even
if this occurred, Respondent was responsible for ensuring the material was back
a safe distance. (Tr. 141). He posited Respondent could have used a chainsaw to
prune back material. (Tr. 142). He believed it was also possible a dozer had
removed a rock from under the roots. (Tr. 140).

At hearing, Baker testified that he saw
only little, fine roots and grass hanging over the edge and that they were not
dangerous. (Tr. 106, 113). He also recalled that dozers and excavators were
always at the wall checking for loose material, though he could not recall the
last date this was done before the inspection. (Tr. 118). Creech also did not
believe that anything present was dangerous; the roots were fine, barely hung off
the edge, and none weighed 100 pounds. (Tr. 123-124, 130). He had never seen
root balls fall from a highwall. (Tr. 124). The trees appeared stable. (Tr.
124). The presence of this material did not mean miners were not cleaning the
wall. (Tr. 134). He did not know if the dozer operators had followed the
cleaning policy, but they always did so when he was present. (Tr. 133). Blue
marks on the brown rock showed places where the dozer blade had attempted to
clean material. (Tr. 135-136). Creech saw other places that looked like
material had been torn out. (Tr. 135-136). Creech believed Respondent had done
a good job of removing hazardous material and that the foreman did not believe
the remaining roots were a danger. (Tr. 137).

As a result of this condition,
Stubblefield issued a 104(d)(1) citation, No. 8366644 (GX-1), under Section 77.1001.
(Tr. 17, 22-23, 28, 58). That standard required loose, hazardous material be
stripped back a safe distance from the top of the highwall. (Tr. 28). If that
cannot be done, barriers must be put in place to prevent material from falling
into the pit. (Tr. 28-29).

The citation was marked as permanently
disabling because root balls, rocks, or trees falling 89 feet into the pit and
striking a miner or the cab of a piece of equipment was highly likely to result
in such an injury. (Tr. 31-32).

The citation was marked as highly likely
because in Stubblefield’s experience, the root balls and material were highly
likely to fall under normal continued mining activities. (Tr. 33, 68-69,
93-94). Stubblefield could not say how large that material would be. (Tr. 70). But
he had seen material, including root balls, fall from walls and strike
equipment, and even a miner, during his career. (Tr. 33, 53-54, 64). He had
seen trees fall from highwalls and root balls can fall even if the trees do
not. (Tr. 33, 53). However, no material was falling and neither the trees nor
the root balls appeared unstable when the citation was issued. (Tr. 54, 58,
63-64, 68). But, Stubblefield was not present in the morning and did not know
what was cleaned up before he arrived and he did not ask. (Tr. 64). It had
taken a week or two to develop the wall to that point. (Tr. 70, 108, 114). Stubblefield
believed it was possible that nothing had fallen in that time. (Tr. 70). Baker
testified that at no time since the development of the highwall had any trees
or root balls fallen into the pit. (Tr. 107-108). Stubblefield did not know if
Respondent had previous citations for this type of condition. (Tr. 80). Baker
and Creech could not recall any citations for root ball material or fine roots
hanging over the wall. (Tr. 111-112, 125). However, Creech believed more
citations were issued later at other mines. (Tr. 125-126).

The miners in the area were in loaders
that ranged from right under the highwall to 10-50 feet away. (Tr. 23). The
loaders stayed perpendicular to the wall, so the closest the cabs could get was
approximately 12-20 feet. (Tr. 60-61, 109). The loaders had rollover protection
that prevented the cab from being crushed. (Tr. 61, 67-68, 109, 125). The
equipment weighed more than a root ball or a tree. (Tr. 61). However, the
machines also had sloped windshields that could be smashed in the event of a
fall. (Tr. 66-67). The equipment did have falling object protection consisting
of a thick piece of metal sticking out over the cab. (Tr. 67-68, 109, 125). This
fall protection prevented material from crushing the cab or going through the
windshield. (Tr. 110). The windshield was made of MSHA-approved safety glass
and was not cracked or broken. (Tr. 110-111). Baker did not know what the
weight limit was for the fall protection on the equipment. (Tr. 114). Creech
was uncertain which equipment was in the pit. (Tr. 125).

Stubblefield believed only one person
would be affected if something fell and marked the citation to reflect that
belief. (Tr. 34, 76). However, there were two loaders (each with one miner)
exposed while cleaning a pit under the highwall. (Tr. 23, 34, 59-60, 76).

The citation was marked as high
negligence and an unwarrantable failure because it was extensive, had existed
for more than one shift, and was obvious to anyone entering the area. (Tr.
34-36, 71). Baker was in the area and should have known that the area needed to
be cleaned. (Tr. 35-36). It would have taken several shifts to remove the
overburden over a 265-foot area. (Tr. 30). The record book also showed that the
condition existed for several shifts. (Tr. 36). Stubblefield believed there
were no mitigating factors. (Tr. 71). Stubblefield did not believe the fact
that the ground control plan did not define “safe distance” was a mitigating
factor. (Tr. 71). The unwarrantable failure designation was also supported
because Ratliff had discussed the issue on October 12, 2011, with Baker, though
it was mostly based on the conditions observed. (Tr. 71-74, 85-87).

Stubblefield testified that there was no
safe way to correct this condition. (Tr. 61-62). Respondent could not place
someone back on top of the wall to clean the material and the top of the wall
was too high for equipment to reach. (Tr. 29-30, 62). Instead, Stubblefield
testified that Respondent asked if they could use an excavator to scoop the
coal out without exposing anyone directly underneath and Stubblefield allowed
it.[12] (Tr. 29-30). Baker
recalled that Stubblefield suggested using the excavator. (Tr. 112). Using an
excavator gave an additional 18 feet of distance between the cab and the wall
as compared to the loader. (Tr. 62-63). Stubblefield did not know if miners
would be exposed in the excavator, but it was the safest way given the
equipment present to allow Respondent to recover the coal and to remedy the
problem. (Tr. 29-31, 37, 63). He had seen this technique used other times. (Tr.
37, 63).

Once the coal was removed, the citation
was terminated by placing a berm 30-40 feet from the wall to prevent entry and
reclaiming the wall with backfill from the next pit. (Tr. 30, 41, 64-65, 111,
127-128). Baker believed the berm was 15-20 feet away. (Tr. 111). The area was
bypassed to limit exposure. (Tr. 41). Backfilling and reclaiming were done with
dozers and trucks and were a normal part of the mining process. (Tr. 65, 70,
92-93, 111). Dozers would push the shot and rock trucks would backfill close to
the top of the wall. (Tr. 93, 111, 127-128). During that process, miners were
necessarily within 12 feet of the wall. (Tr. 65, 70). It was not possible to
keep miners 30 feet from the wall during reclamation. (Tr. 65, 70). However, it
may have been possible to do some reclaiming without exposing miners. (Tr. 92).

Stubblefield reviewed the on-shift
record book back to October 17, 2011, and found that no hazardous conditions
were reported through the day at issue. (Tr. 38-39). None of the conditions
would have occurred within the most recent shift. (Tr. 40). The condition would
have existed whenever Respondent made the first cut. (Tr. 40). Baker conducted
the examinations, but did not list hazards in the book. (Tr. 74, 108). There may
have been as many as 100 inspections in the one to two week period the wall was
in development. (Tr. 114). Baker testified he did not list any condition
because there were no hazards. (Tr. 109, 115).

As a result of this condition,
Stubblefield issued a 104(d)(1) Order, No. 8366645 under Section 77.1713(a). (GX-2,
Tr. 18, 38). That standard required someone designated by the operator to
conduct an examination of all the working areas at surface mines or facilities
during each working shift. (Tr. 38). The goal of the standard was to ensure
that working conditions were safe and all hazardous conditions were corrected,
recorded, and reported. (Tr. 38, 247). The foreman should have seen the
material hanging over the crest and the trees on the edge and prevented miners
from working under the highwall. (Tr. 38-39).

The citation was marked as highly likely
to result in a permanently disabling injury because failure to conduct an
adequate exam exposed miners to hazards that were highly likely to cause
injury. (Tr. 42). The history of mining has shown that inadequate exams can lead
to serious injuries. (Tr. 42). Under continued normal mining conditions, the
underlying citation would have caused an injury. (Tr. 42-43).

The citation was marked as affecting two
people because there were two people in the area where the inadequate
examination was conducted. (Tr. 43, 76).

The citation was also marked for high
negligence because there was a failure to comply with a mandatory standard, and
the violation was obvious, extensive, existed for a long time, and Respondent’s
agent was present. (Tr. 43-44). There was no record of a condition or
corrective action and the foreman allowed miners to work in the area. (Tr. 44).
The foreman was an agent and should have been aware that the wall was not in
compliance. (Tr. 44). Further, foremen received in-depth and annual 6-hour
refresher training to recognize hazards on highwalls, working areas, pits,
roads, berms, weather conditions, and areas where miners work or travel. (Tr.
44-45). The condition was obvious and it would be impossible for the foreman
not to see it. (Tr. 39).

This Order was terminated when the trees
and root balls were reported in the record book. (Tr. 41, 74-75). Further, a
berm was placed 30-40 feet from the wall and the area bypassed to prevent
exposure. (Tr. 41, 74-75).

II.
Contentions
of the Parties Regarding Citation No. 8366644

With respect to Citation No. 8366644,
the Secretary asserts that Respondent violated 30 C.F.R. §77.1001, that this violation
was Highly Likely to result in Permanently Disabling injuries to one miner,
that the violation was S&S, and that it resulted from High Negligence and
an Unwarrantable Failure to comply. (GX-1)(Secretary’s Post-Hearing Brief
at 14-22). The Secretary believes that the proposed penalty of $35,700.00 is
appropriate. (Id. at 23-24).

Respondent
argues that there was no violation of the cited standard. (Respondent’s
Post-Hearing Brief at 9-10). Further, it argues that even if there were a
violation of the cited standard, that it would not be S&S or an
unwarrantable failure to comply. (Id. at 13-15). (Id. at 12-15). Finally,
Respondent presumably believes that the penalty should be vacated or, in the
event the citation is found valid, reduced pursuant to its proffered gravity
and negligence determinations.

III.
Findings
of Fact and Conclusions of Law Regarding Citation No. 8366644

The findings of fact in this, and other
sections, are based on the record as a whole and the Administrative Law Judge’s
careful observation of the witnesses during their testimony. In resolving any
conflicts in the testimony, the ALJ has 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, the ALJ has also relied on his
demeanor. Any failure to provide detail as to each witness’s testimony is not
to be deemed a failure on the ALJ’s 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).

a.
The
Secretary Has Carried His Burden Of Proof By A Preponderance Of The Evidence
That Respondent Violated 30 C.F.R. §77.1001.

On November 1, 2011, Inspector Stubblefield
issued a 104(d)(1) Citation, No. 8366644, to Respondent. Section 8 of that
Order, Condition or Practice, reads as follows:

The Mine Operator has failed to strip
loose hazardous material a safe distance from the top of the highwall in the
Leatherwood Seam (5A) Pit of the Beatty Branch area of the mine, for a distance
of at least Two Hundred and Sixty-Five Feet (265’), as measured with an MSHA
issued TruPulse 200 Laser Rangerfinder and Inclinometer, Serial #014278. Loose
material in the form of tree roots and dirt are hanging over the edge of the
wall for the entire distance, and loose rocks are present in some areas,
extending back through the pit from where the drill bench begins, in advance of
where the mining sequence stopped. Numerous trees are also standing on or, very
near the crest of the wall. This condition was discussed with the Mine Foreman
during a mine visit on 10/12/11 for Investigation and Recommendation of Ground
Control Plan Revision submitted by the Operator. The condition is obvious to
anyone entering the pit, and should have been corrected prior to mining. This
is an unwarrantable failure to comply with a mandatory standard and constitutes
more than ordinary negligence on the part of Mine Management. Order #8366643,
is issued today to the Mine Operator for failure to comply with his
acknowledged Ground Control Plan in the same area. Order #8366645 is issued
today for an inadequate on-shift examination of this area.

(GX-1). The document also discussed termination,
stating:

The Mine Operator is allowed to, and has
used an excavator, placed adjacent the highwall, at mast length, to remove the
coal from the affected area, so as to not expose any miners underneath the
highwall in the affected area. The area is then barricaded/bermed off to
prevent entry.

(GX-1).

The
cited standard, 30 C.F.R. §77.1001 (“Stripping; loose
material.”), provides the following:

Loose
hazardous material shall be stripped for a safe distance from the top of pit or
highwalls, and the loose unconsolidated material shall be sloped to the angle
of repose, or barriers, baffle boards, screens, or other devices be provided
that afford equivalent protection.

30
C.F.R. §77.1001.

At hearing, inspector Stubblefield
testified the instant highwall had loose tree roots, trees standing on the edge
of the wall and dirt, root balls, and large, brown, shale rocks hanging over
the crest. (Tr. 22-24, 26-27, 58, 68, 88-89, 91, GX-4 p.1-6). The presence of
this material indicated that it was not stripped in accordance with the
standard. The Secretary cited several cases in his brief where Commission ALJ
upheld violations under the cited standard for loose rocks, dirt, trees, and
roots. Sunny Ridge Mining Co., Inc., 17 FMSHRC 648 (Apr. 1995)(ALJ
Fauver) aff’d in rel. part 19 FMSHRC 254 (Feb. 1997); Gatliff Coal
Company, Inc., 13 FMSHRC 368, 378-379 (Mar. 1991)(ALJ Melick); and Marty
Corp., 7 FMSHRC 150, 150-152 (Jan. 1985)(ALJ Melick)(citation upheld for
exposed roots and trees attached to loose material even though earlier attempts
to remove the trees were unsuccessful). Therefore, I find Respondent violated
30 C.F.R. §77.1001 with respect to Citation No. 8366644.

In its brief, Respondent contended that
this citation should be vacated and raised several arguments to support that position.
However, none of those arguments were persuasive. Specifically, Respondent
argued that Stubblefield had conceded at hearing that he did not see any
instability in the highwall or anything that appeared ready to fall into the
pit. (Respondent’s Post-Hearing Brief at 10). Further, Stubblefield
found no instability in the root balls. (Id.). Finally, while
Stubblefield testified the trees were on the edge, he further stated that they
did not appear unstable and that he could not tell how far the trees were from
the edge. (Id.). In short, Respondent argued that the material was not
loose and therefore the citation should be vacated.

Respondent correctly recounts the Inspector’s
testimony but draws legal conclusions unsupported by that testimony. Stubblefield
testified that he did not see any material fall into the pit. (Tr. 54, 58,
63-64, 68). He likewise testified that he did not believe any of the material
was ready to fall into the pit. (Tr. 54, 58, 63-64, 68). However, as noted
above Stubblefield credibly testified the cited material was loose. (Tr. 22-24,
26-27, 58, 68, 88-89, 91, GX-4 p. 16). Nothing presented at hearing undermines
that testimony. A plain reading of the standard shows that the inquiry at hand
is not whether the material has fallen or if a fall is imminent, but instead, whether
the material is loose. 30 C.F.R. §77.1001. Respondent presented no authority
for the proposition that “loose” means material has fallen or is about to fall.
Material can be loose but not fall. Similarly, material can be loose and be in
no danger of an imminent fall. Therefore, Respondent’s argument does not
undermine the finding that the cited material was loose and therefore violated
30 C.F.R. §77.1001.

b.
The
Violation Was Unlikely to Result in Lost Workday/Restricted Duty Injuries To
One Miner And Was Not Significant And Substantial In Nature.

Inspector Stubblefield found the gravity
of the cited danger in Citation No. 8366644 as being “Highly Likely” to result
in a “Permanently Disabling” injuries to a miner and that the condition was
S&S. (GX-1). With the exception of the number of persons affected, these
determinations were not supported by a preponderance of the evidence.

Well-settled Commission precedent sets
forth the standard used to determine if a violation is S&S. A violation is
S&S “if, based upon the particular facts surrounding the violation there
exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., National
Gypsum Co., 3 FMSHRC 822, 825 (April 1981). The Commission later clarified
this standard, explaining:

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.

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

Regarding the first element of S&S -
the underlying violation of a mandatory safety standard - it has already been
established that Respondent violated 30 C.F.R. §77.1001.

The second element of Mathies, a
discrete safety hazard – that is a measure of danger to safety – contributed to
by the violation – was also met. Material hanging from the highwall was likely
to fall under continued normal mining operations. (Tr. 33, 68-69, 93-94). Material
falling from the highwall would contribute to the danger of a miner being
struck by material. Stubblefield testified that he had seen miners struck by
material falling from highwalls in the past. (Tr. 33, 53).

The third element of the Mathies
test – a reasonable likelihood that the hazard contributed to will result in an
injury – was not met. The Commission clarified the third element of the Mathies
test in Musser Engineering, Inc., and PBS Coal Inc., 32 FMSHRC 1257,
1280-81 (Oct. 2010) (“PBS”). The Commission held that the “test under the third
element is whether there is a reasonable likelihood that the hazard contributed
to by the violation…will cause injury.” Id. at 1281. Importantly, it
stated that the “Secretary need not prove a reasonable likelihood that the
violation itself will cause injury.” Id. The Commission also emphasized
the well-established precedent that “the absence of an injury-producing event
when a cited practice has occurred does not preclude a determination of
S&S.” Id. (citing Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec.
2005); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June
1996). The likelihood of the hazard being realized must be considered assuming
normal continued mining operations without abatement of the violation. Consolidation
Coal Co., 8 FMSHRC 890, 899 (Jun. 1986).

Analysis under the third prong of Mathies
hinges on whether a miner would be injured, assuming that the hazard is
realized. In this instance, the hazard contributed to was the hanging material
falling into the pit. However, even if material were certain to fall, an injury
would not necessarily be likely. At hearing, Inspector Stubblefield was unable
to say how large the material would be in the event it would fall. (Tr. 70). Stubblefield
testified that the root balls, which were actually hanging over the edge of the
wall, weighed between 5-100 pounds. (Tr. 54, 88-89). Baker and Creech credibly
testified that the roots were “fine,” weighed less than 100 pounds, and posed
no danger in the event of a fall. (Tr. 106, 113, 123-124, 130). Perhaps more
importantly, Stubblefield agreed with Respondent’s witnesses that the cited
equipment had roll protection to prevent the cabs from being crushed. (Tr. 61,
67-68, 109, 125). The equipment weighed more than a root ball or a tree. (Tr.
61). There was also falling object protection protecting the windshield. (Tr.
67-68, 109-110). Further, the windshield was made with MSHA-approved safety
glass that was in good condition. (Tr. 110-111).

As discussed intra, I
specifically find that the Secretary failed to carry his burden of proof that
the trees in the cited area – which would have been the heaviest objects
testified to—actually stood to near to the edge of the highwall that they would
be considered part of the “loose hazardous material” that should have been
stripped for a safe distance from the top of the highwall. The inspector did
not go to the top of the highwall, where perhaps more accurate measurements
could have been made of the actual distance(s) from the edge of the highwall to
where the tree line/trees were located. Given the angle from which the
photographs presented by the Secretary were taken and the contradictory
assertions by the Respondent to the actual distances at issue, I was left to conjecture
such.

In short, the Secretary failed to
establish that if material fell from the highwall it would be anything more
than small, fine pieces of root and small rocks. If this small material fell
from the highwall and happened to strike one of the pieces of equipment, the
safety measures built into the equipment would protect the cab and prevent
injury. Therefore, I find that an injury was not reasonably likely to occur in
the event of material falling from the highwall. As a result, the third prong
of Mathies is not met.

In his
brief, the Secretary correctly noted that it need not prove that material was
likely to fall, but rather that a fall would be reasonably likely to result in
a reasonably serious injury. (Secretary’s Post-Hearing Brief at 17). In
fact, the Secretary argued that an injury was highly likely to occur. (Id.
at 15-16). He noted that if a tree or root ball struck the cab of a miner, the
injury would be at least permanently disabling. (Id. at 16). The
Secretary contended that Stubblefield had taken the size of the root balls and
the protections afforded by the vehicle into account in making his assessment. (Id.).
Finally, the Secretary noted that cabs do not offer perfect protection and that
even seemingly small amounts of material can be a fatal weight. (Id. at
17).

As
noted supra, the Secretary failed to establish the size and weight of
the objects that were near the edge of the highwall. Further, even if the
material weighed 100 pounds, the Secretary failed to establish that the cab of
the equipment would be damaged and miners inside would be injured in the event
of a fall. Respondent presented compelling evidence regarding the safety of the
equipment. (Tr. 61, 67-68, 109-111, 125). Nothing the Secretary presented,
including Stubblefield’s undocumented assertion that he considered those safety
measures, undermines that evidence. In light of the Secretary’s burden in this
proceeding, these failures are fatal to its claim that the citation was
S&S.

In addition, to
support its argument, the Secretary pointed to two previous fatal injuries
resulting from material falling from a highwall. (Id. at 16-17). However,
those previous accidents were substantially different from the situation here. In
one accident, “[T]he rock which struck the operator's cab of the highwall drill
measured approximately seven and one-half feet long, seven feet wide, and four
feet thick.” “MSHA-Coal Mine Fatal Accident Investigation Report, Fall of Rick,
October 5, 1998,” http://www.msha.gov/FATALS/1998/FTL98C23.htm (last visited
July 17, 2015). The Secretary provided no evidence that any of the material
cited here approached the massive size of rock that fell in that incident. A
piece of rock measuring 7.5’ by 7’ by 4’ would weigh considerably more than one
hundred pounds. Similarly, the second accident involved a miner being struck
when outside of his equipment. MSHA – Coal Mine Fatal Accident Investigation
Report: Fatality #23 – October 07, 2002 Falling, Rolling or Sliding
Rock/Material – Surface – Alabama – Tuscaloosa Resources, Inc. – Carter Mine,” http://www.msha.gov/FATALS/2002/FTL02c23.htm
(last visited July 17, 2015). The Secretary presented no evidence to show that
miners in the instant matter were on foot. Therefore, the fatal injuries
described in those fatal reports provide little support for the Secretary’s
position.

Having determined that this situation
does not meet the third prong of the Mathies test and is therefore not
S&S, it is not necessary to consider the fourth prong. However, for the
purpose of determining the gravity of this violation, it is still necessary to
consider the severity of the injury that would result if a miner were affected.

In the unlikely event that a large piece
of material was to fall on the cab of the equipment, a miner could suffer
scrapes, bruises, and other similar injuries from being jostled. As a result, a
finding of “Lost Workday/Restricted Duty” would be appropriate. Therefore, this
citation was non-S&S and unlikely to occur, but if an incident did occur it
would result in lost workday/restricted duty injuries.

c.
Respondent’s
Conduct Is Best Characterized As “Low” Negligence rather than “High” Negligence
and an Unwarrantable Failure.

In the citation at issue, Inspector Stubblefield
found that the operator’s conduct was highly negligent in character and the
result of an unwarrantable failure. (GX-1).

Standard 30 C.F.R. §100.3(d) provides
the following:

(d) Negligence.
Negligence is
conduct, either by commission or omission, which falls below a standard of care
established under the Mine Act to protect miners against the risks of harm.
Under the Mine Act, an operator is held to a high standard of care. A mine
operator is required to be on the alert for conditions and practices in the
mine that affect the safety or health of miners and to take steps necessary to
correct or prevent hazardous conditions or practices. The failure to exercise a
high standard of care constitutes negligence. The negligence criterion assigns
penalty points based on the degree to which the operator failed to exercise a
high standard of care. When applying this criterion, MSHA considers mitigating
circumstances which may include, but are not limited to, actions taken by the
operator to prevent or correct hazardous conditions or practices.

In
30 C.F.R. §103(d), Table X, the category of high negligence is described
thusly: “The operator knew or should have known of the violative condition or
practice and there are no mitigating circumstances.” 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.” Low
negligence is reserved for situations where there are “considerable” mitigating
circumstances.

I find that Respondent should have known
about the violation but that there were considerable mitigating factors. With
respect to knowledge, well-settled Commission precedent recognizes that the
negligence of an operator’s agent is imputed to the operator for penalty
assessments and unwarrantable failure determinations. See Whayne
Supply Co., 19 FMSHRC 447, 451 (Mar. 1997); Rochester & Pittsburg
Coal Co., 13 FMSHRC 189, 194-197 (Feb. 1991); and Southern Ohio Coal Co.,
4 FMSHRC 1459, 1463-1464 (Aug. 1982). An agent is defined as someone with
responsibilities normally delegated to management personnel, with responsibilities
that are crucial to the mine’s operations, and exercises managerial
responsibilities at the time of the negligent conduct. Martin Marietta
Aggregates, 22 FMSHRC 633, 637-638 (May 2000). Further, “in carrying out… required
examination duties for an operator, an examiner…may appropriately be viewed as
being ‘charged with responsibility for the operation of . . . part of a mine,’
and, therefore, the examiner constitutes the operator's agent for that purpose.”
Rochester and Pittsburg Coal Co., 13 FMSHRC at 194 quoting 30
U.S.C. §802(e).

In the instant matter, both Creech and
Baker were members of management. (Tr. 99,120-121, 130-131, 238-239). Both had
seen the material on the highwall. (Tr. 106, 113). Further, Baker conducted the
pre-shift examinations of the cited area. (Tr. 74, 108). Both Baker and Creech
seemed aware that there was material near the edge of the wall (though they
characterized it as fine). (Tr. 106, 113, 123-124, 130). As discussed supra,
this material was a violation of the cited standard. Therefore, Respondent knew
or should have known that a violation existed and was negligent. The question
that remains is the degree of that negligence.

I find that the record demonstrates there
were considerable mitigating circumstances. While both Baker and Creech saw the
material hanging, they both credibly testified that they had seen similar
material on walls throughout their careers without incident. (Tr. 111-112, 125).
Respondent’s witnesses testified that they genuinely believed that the material
present posed no hazard because of its small size and the other safety measures
in the area. (Tr. 106, 113, 123-124, 130). Respondent’s witnesses testified
that while the material was present, it did not appear to be unstable. (Tr. 124).
Inspector Stubblefield largely corroborated that testimony. (Tr. 54, 58, 63-64,
68).

In addition, Baker and Creech credibly testified
that Respondent took measures to ensure that material was back away from the
edge of the wall after blasting. (Tr. 118, 133-137). These efforts were simply
less effective than anticipated. Relatedly, the Secretary failed to establish
that the material was as close to the edge as originally alleged. Baker
testified that the trees were 15-20 feet back from the edge of the highwall. (Tr.
107). Stubblefield testified that he believed that the material was right near
the edge. (Tr. 52, 91). However, he could not say for certain that the material
was at that location. (Tr. 51-52, 58). Further, he took no action to confirm
the location of the trees. The photographs were inconclusive. Therefore, I find
that the Secretary failed to meet his burden with respect to the location of
the trees.

The Secretary provided several arguments
to support his contention that the “High” negligence designation was
appropriate. However, none of those arguments were compelling.

For instance, the Secretary argued Stubblefield
noted that the trees on the edge, the roots, and the other loose material were
obvious to anyone entering the area. (Secretary’s Post-Hearing Brief at
18). The Secretary stated that Baker, by his own admission, conducted over 100
examinations in the area but failed to mark the condition as a hazard, but
argues that the failure to recognize a hazard does not excuse Respondent from
obligation to correct the hazard. (Id.).

As noted supra, the Secretary
failed to establish that the trees at issue were close to the edge of the
highwall. Beyond that, Respondent does not maintain that it was unaware of the
existence of the hanging roots. In fact, its witnesses testified that they saw
the material at issue. Instead, the evidence suggests that Respondent was not
aware that the roots constituted a hazard. The roots were small, appeared fine,
and showed no obvious signs of an imminent fall. Though the roots were obvious,
the hazard they posed was not. While the Secretary is correct that a hazard
existed and that Respondent was not excused from its obligation to correct the
hazard simply because it was not obvious, I find that a reduction in the
assessed negligence is appropriate.

Further,
the Secretary argued that Baker had conceded that a hypothetical stable tree three
feet from the edge of the highwall should have been removed. (Secretary’s
Post-Hearing Brief at 18). The record supports this assertion: Baker did
testify to that effect. (Tr. 105). However, as noted supra, the
Secretary failed to establish that the trees were within three feet of the edge
of the highwall. It was at least as likely that the trees were 15-20 feet away
from the edge. (Tr. 107). Therefore, Baker’s comment regarding the hypothetical
tree three feet from the edge was irrelevant.

The
Secretary also argued that while the condition likely existed because more material
had been blasted than intended, Respondent should have then cleaned the material
after the blast. (Secretary’s Post-Hearing Brief at 18-19). In support,
the Secretary notes that Creech agreed that Respondent did not do a good job of
cleaning the, “little clumps of roots that Mr. Stubblefield considers
dangerous.” (Id. at 19). Baker and Creech credibly testified that
Respondent made efforts to ensure the area was clean. (Tr. 118, 133-137). Creech
simply conceded that the fine roots, which Respondent failed to recognize as a
hazard, were not cleaned. For the reasons stated supra, Respondent’s
failure to recognize this hazard was negligent, but somewhat reasonable because
that hazard was not obvious.

While nothing excuses Respondent’s
failure to remove the loose, hanging material, a finding of “High” negligence
would be inappropriate given the circumstances. Instead, I find Respondent’s
actions are better characterized as displaying “Low” negligence.

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). The Commission formulated a six-factor test to determine
aggravating conduct. IO Coal Co., Inc., 31 FMSHRC 1346, 1350-1351 (Dec.
2009). While each factor does not need to be present in order to find
unwarrantable failure, all six factors must be considered. The Administrative
Law Judge will consider each of those factors in turn:

1. Extent Of The
Violative Condition

Stubblefield
determined that the condition was spread across the 265-foot crest of the
highwall. (GX-1). There was a large amount of roots and loose material dangling
over the highwall. (Tr. 22-24, 26-27, 58, 64, 88-89, 91, 106, 1112, 123-124,
130). Nothing presented by Respondent refutes this testimony. Therefore, the
instant violation was extensive.

2. The Length of
Time The Violation Existed

At hearing,
Inspector Stubblefield credibly testified that this condition likely existed
from the time the area was first developed. (Tr. 40). The loose material likely
occurred when more material than intended was removed during the initial
blasting of the highwall. (Tr. 78, 134-135, 139-141). Baker testified that it
had taken 1-2 weeks to develop to that point. (Tr. 114). The book indicated
that development started on October 17, 2011. (Tr. 38-39). Therefore, the
condition had existed for several shifts.

3. Whether the
violation is obvious or poses a high degree of danger

The violation at
issue was not particularly obvious and did not pose a considerable danger. As
discussed with respect to the negligence designation, supra, the roots
were obvious but the hazards those roots posed were not. Further, whatever
hazards the trees may have presented were not obvious because the trees were
not as close to the edge as originally cited. Further, as discussed with
respect to gravity, supra, the condition was unlikely to occur and was
not S&S. The roots were small and the equipment was provided with fall
protection. (Tr. 67-68, 106, 109-113, 123-125, 130). Further, the material
appeared stable. (Tr. 124).

4. Whether the
operator had been placed on notice that greater efforts were necessary for
compliance or that this condition was an issue.

The
evidence does not show any meaningful notice regarding the cited condition. Respondent
had received no previous citations for material on top of the highwall. No one
had told Respondent that it was on notice that additional efforts were needed. Further,
Baker and Creech credibly testified that they had seen highwalls in the cited
condition their entire careers without receiving any citations. (Tr. 111-112,
125).

The Secretary
alleged that Respondent received notice regarding the cited condition in three
ways. I will address each argument in turn. First, Respondent had previously
received citations on its safety benches. (Secretary’s Post-Hearing Brief
at 19-21). Respondent argued that safety benches are part of the highwall and
therefore these citations provided notice regarding other issues on the
highwall. (Secretary’s Post-Hearing Brief at 21 citing Peabody Coal
Co., 14 FMSHRC 1258, 1263-1264 (Aug. 1992).

The
Secretary is correct that “[r]epeated similar violations may be relevant to an
unwarrantable failure determination to the extent that they serve to put an
operator on notice that greater efforts are necessary for compliance with a
standard.” San Juan Coal Co., 29 FMSHRC 125, 131 (2007). Further, the
Commission “has rejected the argument that only past violations involving the
same regulation and occurring in the same area within a continuing time frame
may properly be considered when determining whether a violation is
unwarrantable.” Id.; see also Black Beauty Coal Co. v. Federal Mine
Safety and Health Review Com’n, 703 F. 3d. 553, 561 (D.C. Cir. 2012). However,
that case law is not so broad as to stand for the proposition that any
violation on a highwall provides notice of any other violation on a highwall,
however tenuously related. The Secretary presented little to no evidence
regarding the circumstances surrounding the previous citations on a safety
bench. I have no way to determine what caused the issuance of these citations
and what relationship, if any, they bear to the instant matter. While it is
possible that these citations provided some notice, I cannot make that
determination on the bare record present here. In light of the Secretary’s
burden, I find he failed to establish that the previous citations provided
notice regarding the instant condition.

Second, the Secretary argued that
Ratliff told Stubblefield he had discussed the issue in the past with
Respondent. (Secretary’s Post-Hearing Brief at 21). The Secretary noted
that past discussions with MSHA regarding violative conduct place an operator
on “heightened scrutiny that it must increase its efforts to comply with the
standard.” (Id. at 14 Consolidation Coal Co., 23 FMSHRC 588, 595
(Jun. 2001) and San Juan Coal Co., 29 FMSHRC 125, 131 (Mar. 2007)). Inspector
Ratliff was not present at hearing and all evidence suggesting that he
discussed the cited condition with Baker comes from Stubblefield’s hearsay
conversation. (Tr. 19-21, 73). Stubblefield did not know if Ratliff mentioned
root balls or trees. (Tr. 47, 72). While hearsay is admissible under Commission
rules, hearsay evidence is accorded only the weight warranted by the
circumstance. REB Enterprises, Inc., 20FMSHRC 203, 206 (1998)( the Commission
held that hearsay evidence is admissible but that the judge has discretion to “determine
whether it was reliable and entitled to any probative weight.”)(citations
omitted). Here, one party to the alleged conversation, Baker, was present at
the hearing and testified. He credibly stated that he did not remember this
conversation or any warning regarding the cited issue from Ratliff. (Tr. 106). In
light of the Secretary’s burden, I find he failed to establish that Ratliff
provided previous notice regarding the instant condition.

Finally,
the Secretary argued that Stubblefield had discussed the issue with Respondent
on October 12, 2011. (Secretary’s Post-Hearing Brief at 21). The
Secretary is correct that Stubblefield initially testified that MSHA had
discussed this issue with Baker during an earlier inspection. (Tr. 19-21, 72). However,
he later stated that he had no specific recollection of the content of that
conversation and was not present for it. (Tr. 42, 72). On the other hand, Baker
recalled the conversation and credibly testified that he and Stubblefield never
discussed material on top of the highwall. (Tr. 106). In light of the
Secretary’s burden, I find he failed to establish that Stubblefield provided
previous notice regarding the instant condition.

5. The operator’s
efforts in abating the violative condition

Creech and Baker
credibly testified that Respondent took actions to ensure that material was not
hanging over the edge of the wall. (Tr. 118, 133-137). However, it is
undisputed that Respondent failed to remove the small root balls and other
materials that were hanging over the edge. Therefore, Respondent took some
action to abate the violative condition, but those efforts were insufficient.

6. Operator’s
knowledge of the existence of the violation

“It
is well-settled that an operator’s knowledge may be established, and a finding
of unwarrantable failure supported, where an operator reasonably should have
known of a violative condition.” IO Coal Co., 31 FMSHRC at 1356-1357 (citing
Emery, 9 FMSHRC at 2002-2004). A supervisor’s knowledge and involvement is
an important factor in an unwarrantable failure determination. See Lopke
Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) citing (REB
Enterprises, Inc., 20 FMSHRC 203, 224 (Mar. 1998) and Secretary of Labor
v. Roy Glenn, 6 FMSHRC 1583, 1587 (July 1984). In fact, a supervisor’s
actual knowledge can be imputed to the Respondent for purposes of determining
an unwarrantable failure, in addition to the penalty. Whayne Supply Co.,
supra; Rochester & Pittsburgh Coal Co., supra; and Southern
Ohio Coal Co., supra. As discussed supra, the preponderance
of the evidence shows that Baker and Creech knew or should have known about the
violative condition. However, Baker and Creech were not aware of the degree of
the hazard present and that hazard was not obvious.

In
light of the lack of notice, the fact that the cited condition was not highly
dangerous, Respondent’s efforts at abatement, the fact that the hazard was not
obvious, and the fact that Respondent’s actions were best characterized as “low”
negligence, I find that this violation was not an unwarrantable failure on the
part of the operator.

d.
Penalty

In this matter, the Secretary proposed a
penalty of $35,700.00 for Citation No. 8366644. The Commission has affirmed
that ALJs are not bound the Secretary’s proposals. Sec. v. Performance Coal
Co., (Docket No. WEVA 2008-1825 (8/2/2013) (see also 30 U.S.C.
§820(i) and 29 C.F.R. §2700.30(b)). The Commission also held that, although
there is no presumption of validity given to the Secretary’s proposed
assessments, substantial deviation from the Secretary’s proposed assessments
must be adequately explained using §110(i) criteria. (Id. at p. 2). (see
also Cantina Green, 22 FMSHRC 616, 620-621 (May 2000)). I find that a
deviation from the Secretary’s proposed assessment is warranted herein and will
evaluate the factors contained in 30 U.S.C. §820(i) to explain that deviation. Those
factors are as follows:

(1) The Operator’s history of previous
violations – As discussed earlier, Respondent had no significant history of
violating the cited standard or any substantially similar standards.

(2) The appropriateness of the penalty
compared to the size of the Operator’s business - The parties stipulated that at
Bear Branch mine, Respondent produced 383,754 tons of coal in 2010. (JX-1). Further,
Respondent produced 3,892,526 tons of coal at all of its operations. According
to MSHA’s penalty assessment guidelines this gives Bear Branch, 11 “mine size
points” out of a possible 15 and 9 “controller size points” out of a possible

See 30 CFR §100.3(b). Thus, Respondent is an above-average sized operator
with a relatively large mine.

(3) Whether the Operator was negligent –
As previously shown, the operator exhibited low negligence.

(4) The effect on the Operator’s ability
to remain in business – The parties stipulated that the penalty would not
affect Respondent’s ability to remain in business. (JX-1).

(5) The gravity of the violation – As
previously shown, this violation was unlikely to result in lost
workday/restricted duty injuries to a miner and it was not S&S.

(6) The demonstrated good-faith of the
person charged in attempting to achieve rapid compliance after notification of
a violation – All evidence suggests that Respondent abated the condition
quickly following the issuance of the violation.

In light of the decision to modify the
negligence of the citation from “High” and “Unwarrantable Failure” to “Low” and
to remove the Unwarrantable Failure designation and to modify the gravity from “Highly
Likely” and “S&S” to “Unlikely” and “Non-S&S,” a reduction in the
assessed penalty is appropriate. Therefore, Respondent is hereby ORDERED
to pay a civil penalty in the amount of $4,000.00.

IV.
Contentions
of the Parties Regarding Order No. 8366645

With respect to Order No. 8366645, the
Secretary asserts that Respondent violated 30 C.F.R. §77.1713(a), that this violation
was Highly Likely to result in Permanently Disabling injuries to two miners,
that the violation was S&S, and that it resulted from High Negligence and
an Unwarrantable Failure to comply. (GX-2)(Secretary’s Post-Hearing Brief
at 24-28). The Secretary believes that the proposed penalty of $45,000.00 is
appropriate. (Id. at 28-29).

Respondent
argues that there was no violation of the cited standard. (Respondent’s
Post-Hearing Brief at 9-10). Further, it argues that even if there were a
violation of the cited standard, that it would not be S&S. (Id. at
13-15). Further, it argues that its actions did not display an unwarrantable
failure to comply. (Id. at 12-13). Finally, Respondent presumably
believes that the penalty should be vacated or, in the event the order is found
valid, reduced pursuant to its proffered gravity and negligence determinations.

V.
Findings
of Fact and Conclusions of Law Regarding Order No. 8366645

a.
The
Secretary Has Carried His Burden Of Proof By A Preponderance Of The Evidence
That Respondent Violated 30 C.F.R. §77.1713(a).

On November 1, 2011, Inspector Stubblefield
issued a 104(d)(1) Order, No. 8366645, to Respondent. Section 8 of that Order,
Condition or Practice, reads as follows:

The Mine Foreman failed to conduct an
adequate examination for hazardous conditions, in the Leatherwood Seam (5A) pit
of the Beatty Branch area of the mine. Citation #8366644 is issued today for
failure to strip/remove loose hazardous materials a safe distance from the top
of the wall, for a distance of Two Hundred and Sixty-Five Feet (265’) in this
area. The On-shift Examination Record Book for this mine, indicates no
hazardous conditions reported beginning on 10/17/2011 and continuing through
today, 11/01/2011, for this area. The loose materials are obvious to anyone
entering the pit area. This condition should have been found, recorded in the
examination record, and corrected before the mining sequence was allowed to
continue. Failure to conduct adequate examinations exposes miners to hazards
that can reasonably be expected to result in an accident causing serious
injuries to miners. This is an unwarrantable failure to comply with a mandatory
standard and constitutes more than ordinary negligence on the part of mine
management. Order #7366643 is issued today to the Mine Operator for failure to
comply with his Acknowledged Ground Control Plan in the same area.

(GX-2).

The
cited standard, 30 C.F.R. §77.1713(a) (“Daily
inspection of surface coal mine; certified person; reports of inspection.”),
provides the following:

At least
once during each working shift, or more often if necessary for safety, each
active working area and each active surface installation shall be examined by a
certified person designated by the operator to conduct such examinations for
hazardous conditions and any hazardous conditions noted during such
examinations shall be reported to the operator and shall be corrected by the
operator.

30
C.F.R. §77.1713(a).

This
regulation is “broadly worded and requires, among other things, that a
designated certified person examine working areas for hazardous conditions as
often as is necessary for safety and that any conditions noted be corrected by
operators.” Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct. 1979). Whether a
certified person has conducted an adequate examination can be determined by
using the “reasonably prudent miner” test. Tuscaloosa Resources, 36
FMSHRC 1615, 1636 (Jun. 2014)(ALJ Simonton). The Commission has summarized
this test as “whether a reasonably prudent person familiar with the mining
industry and the protective purposes of the standard would have recognized the
specific prohibition or requirement of the standard.” Id. at 1618.

In the instant matter, it is undisputed
that the required examination was conducted by Baker in the Highwall area. (Tr.
74, 108). Baker was properly certified and qualified for the purposes of
conducting examinations. The highwall was an active area in the mine. It is
further undisputed that root balls and other loose material were placed near
the edge of the highwall. (Tr. 22-24, 26-27, 58, 68, 88-89, 91, 106, 113,
123-124, 130). Finally, it is also undisputed that the loose material was not
noted in the reported or corrected. (Tr. 38-39).

In light of this evidence and my
previous findings, I find that a reasonably prudent person familiar with the
mining industry and the protective purposes of the act would have recognized
that the cited material was not permitted. As I found with respect to Citation
No. 8366644, the underlying condition constituted a hazard and the existence of
the roots and material was obvious, though the hazard was less so. The
underlying standard specifically required loose, hazardous material to be
stripped a safe distance from the top of the highwall. 30 C.F.R. §77.1001. Having
seen the material, Baker should have recorded it in the examination record and
taken steps to correct the condition. The failure to do so constituted a
violation of §77.1713(a)

In its brief, Respondent argued that the
order should be vacated because there was no loose, hazardous material on the
highwall. (Respondent’s Post-Hearing Brief at 9-10). It argued that this
means the examination was adequate. (Id.). For the reasons discussed
with respect to Citation No. 8366644 supra, the roots balls and other
material on the highwall constituted a hazard. Therefore, Respondent’s argument
is not supported by the record.

b.
The
Violation Was Unlikely to Result in a Permanently Disabling Injury And Was Not
Significant And Substantial In Nature.

Inspector Stubblefield found the gravity
of the cited danger in Order No. 8366645 as being “Highly Likely” to result in
a “Permanently Disabling” injuries to two miner and that the condition was
S&S. (GX-2). With the exception of the number of persons affected, these
determinations were not supported by a preponderance of the evidence.

Respondent’s failure to conduct an
adequate examination of the cited highwall exposed miners in the area to the
hazards discussed in Citation No. 8366644. Furthermore, the Secretary’s
arguments in support of this designation were identical with respect to these
citations. (Secretary’s Post-Hearing Brief at 25-26). As a result, the reasoning
provided supra with respect to the gravity of Citation No. 8366644 is
incorporated here by reference. Therefore, I find that Order No. 8366645 was
“Unlikely” to result in “Lost Workday/Restricted Duty” injuries and was not
S&S because the cited conduct failed to meet the third prong of Mathies.
A finding that two miners were affected is appropriate because at least two
miners were operating equipment below the highwall. (Tr. 23, 34, 59-60, 76).

c.
Respondent’s
Conduct Is Best Characterized As “Low” Negligence rather than “High” Negligence
and an Unwarrantable Failure.

In the order at issue, Inspector Stubblefield
found that the operator’s conduct was highly negligent in character and the
result of an unwarrantable failure. (GX-2). I find that Respondent should have
known about the violation and that there were considerable mitigating factors.

With respect to knowledge, Baker was a
member of management, he conducted the pre-shift examination in the area, and
he was aware that there was material near the edge of the wall. (Tr. 74, 99, 106,
108, 113,123-124, 130, 238-239). As discussed supra, this material was a
violation of the underlying standard. Therefore, Respondent knew or should have
known that a violation existed and was negligent. The question that remains is
the degree of that negligence.

I find that the record demonstrates
there were considerable mitigating circumstances. Examiner Baker credibly
testified that he had seen similar material on highwalls throughout his career
without incident. (Tr. 111-112). I believe it is significant that no other
conditions were found with respect to this highwall to indicate that the
examination was otherwise inadequate. Clearly, Respondent should have
recognized the instant hazard, but apparently the operator was doing an
adequate job of preventing or correcting other hazards in the area. As with the
underlying condition, Respondent’s witnesses seemed to have genuinely believed
the cited material presented no hazard because of its small size, stability and
the other safety measures in the area. (Tr. 106, 113). Further, I again note
that Respondent took measures to ensure that material was not close to the edge
of the wall and that the Secretary failed to establish that trees were located
near the edge of the highwall. (Tr. 118, 133-137).

The Secretary provided the same
arguments in support of this examination citation as he raised with respect to
the underlying citation. (Secretary’s Post-Hearing Brief at 26). As a
result, my discussion of the Secretary’s argument and my finding that those
arguments were not compelling with respect to Citation No. 8366644 are
incorporated here by reference. A finding of “High” negligence would be
inappropriate given the circumstances. Instead, I find Respondent’s actions are
better characterized as displaying “Low” negligence.

The Secretary also found that the cited
condition constituted an unwarrantable failure to comply. I will now turn to
the six IO Coal factors with respect to that determination:

1. Extent Of The
Violative Condition

Baker testified
that he may have conducted as many as 100 examinations in the area during
development. (Tr. 114). He failed to record or correct the cited condition during
each of those examinations. Therefore, the instant violation was extensive.

2. The Length of
Time of the Violation Existed

At hearing,
Inspector Stubblefield credibly testified that underlying condition likely
existed from the time the area was first developed 1-2 weeks before the
citation. (Tr. 40, 114). The book indicated that development started on October
17, 2011. (Tr. 38-39). Examinations were conducted during that time and the
condition was not recorded or corrected. Therefore, the condition had existed
for several shifts.

3. Whether the
violation is obvious or poses a high degree of danger

As discussed
with respect to the underlying citation, the loose material that was missed
during the examination was not particularly obvious and did not pose a
considerable danger. While the roots were obvious, the hazards those roots
posed were not. Further, whatever hazards the trees may have presented were not
obvious because the trees were not as close to the edge as originally cited. Also,
as discussed with respect to gravity, supra, the condition was unlikely
to occur and was not S&S. The roots were small and the equipment was
provided with fall protection. (Tr. 67-68, 106, 109-113, 123-135, 130). Further,
the material appeared stable. (Tr. 124).

The
Secretary argued that Baker was aware of the hazard but was not writing it in
the book, thereby placing two miners in danger. (Secretary’s Post-Hearing
Brief at 28). I believe this overstates the situation. Baker was aware that
the roots were present on the edge, but he was not aware that this condition
posed a danger.

4. Whether the
operator had been placed on notice that greater efforts were necessary for
compliance or that this condition was an issue.

The
evidence does not show any meaningful notice regarding the cited condition. Respondent
had received no previous citations for failure to conduct adequate examinations
of the highwall. No one had told Respondent that it was on notice that
additional efforts were needed. Further, Baker and Creech credibly testified
that they had seen highwalls in the cited condition their entire careers
without receiving any citations. (Tr. 111-112, 125).

The Secretary
alleged that Respondent received notice regarding the cited condition because
it had received previous citations regarding the maintenance of highwalls and
therefore was on notice that examinations were required to detect those hazards.
(Secretary’s Post-Hearing Brief at 27). Once again, the Secretary
has taken the case law regarding past violations too broadly. The Secretary
essentially argues that any citation issued on a highwall provides notice to
find all other possible hazards on a highwall during future examinations. Because
the Secretary presented no evidence to show how previous citations in the area
provided notice in the instant matter, the Secretary essentially argues that
any citation issued on a highwall necessarily provides notice for all hazards
possible on subsequent examinations on the highwall. Apparently, this is true
regardless of whether the previous citation addressed the specific issue missed
during that subsequent examination. I believe this is far too tenuous to
constitute notice. Without a showing that the previous citations bear some
actual relationship to the instant matter, I cannot find that they provide
notice.

5. The operator’s
efforts in abating the violative condition

Baker conducted
examinations of the area and actually saw the underlying condition. (Tr. 74,
108-109, 115). He failed to recognize the condition as a hazard. There is no
evidence of any abatement conducted before the order was issued because of this
failure to recognize the hazard.

6. Operator’s
knowledge of the existence of the violation

As
discussed supra, the preponderance of the evidence shows that Baker knew
or should have known about the violative condition. However, Baker was not
aware of the degree of the hazard present and that hazard was not obvious.

In
light of the lack of notice, the fact that the cited condition was not highly
dangerous, the fact that the hazard was not obvious, and the fact that
Respondent’s actions were best characterized as “low” negligence, I find that
this violation was not an unwarrantable failure on the part of the operator.

d.
Penalty

In this matter, the Secretary proposed a
penalty of $45,000.00 for Order No. 8366645. I find that a deviation
from the Secretary’s proposed assessment is warranted herein and will evaluate
the factors contained in 30 U.S.C. §820(i) to explain that deviation. Those
factors are as follows:

(1) The Operator’s history of previous
violations – As discussed earlier, Respondent had no significant history of
violating the cited standard or any substantially similar standards.

See 30 CFR §100.3(b). Thus, Respondent is an above-average sized operator
with a relatively large mine.

(3) Whether the Operator was negligent –
As previously shown, the operator exhibited low negligence.

(4) The effect on the Operator’s ability
to remain in business – The parties stipulated that the penalty would not
affect Respondent’s ability to remain in business. (JX-1).

(5) The gravity of the violation – As
previously shown, this violation was unlikely to result in lost
workday/restricted duty injuries to a miners and it was not S&S.

In light of the decision to modify the
negligence of the order from “High” and “Unwarrantable Failure” to “Low” and to
remove the Unwarrantable failure designation and to modify the gravity from
“Highly Likely” and “S&S” to “Unlikely” and “Non-S&S,” a reduction in
the assessed penalty is appropriate. Therefore, Respondent is hereby ORDERED
to pay a civil penalty in the amount of $4,000.00.

DOCKET
NO. KENT 2012-904

I.
Summary
of Testimony

At 9:15 p.m. on November 18, 2011,
Stubblefield received a call from Supervisor Marvin Hoskins explaining MSHA had
received an anonymous verbal complaint. (Tr. 146, 204). The complaint stated
Respondent was not installing safety benches and was not stripping materials a
safe distance from the top of the highwalls.[13] (Tr. 146). Hoskins
assigned Stubblefield to conduct an E-16 inspection in the area. (Tr. 146-147).
Upon arrival, Stubblefield reviewed the mine file. (Tr. 147).

At 9:50 a.m. on November 19, 2011,
Stubblefield arrived at the mine.[14] (Tr. 146-147). Upon
arrival he went to Beatty Branch and then traveled to Center Ridge. (Tr. 147). At
12:10-12:15 he arrived at the Cow Head Branch, a mountain hollow that ran into
Cut Shin Creek. (Tr. 147-149). At 12:40 he arrived on the right side of the Cow
Head and found Respondent was drilling for a blast. (Tr. 148-150, 160-161). Two
miners, a blaster and blaster helper, were preparing shot on foot below the
wall. (Tr. 148-150, 160-161). The blasters were 10-12 feet from the wall. (Tr.
161). The coal in the area was still being developed and it was probably 10-15
feet shorter than the one at Beatty Branch, 55-60 feet. (Tr. 163, 189-190). Respondent
had probably already drilled and shot two or three times to develop to the
highwall to that point. (Tr. 158). The blaster, Ronald Sante Smith, recalled
that when Stubblefield first arrived, he was not at the wall but instead
loading his truck to prepare for a shot.[15] (Tr. 220).

On the right side of the Cow Head,
Stubblefield found that Respondent had failed to strip loose, hazardous
material a safe distance from the top of the highwall. (Tr. 149, 222). There
was loose material including roots hanging right over the edge and the crest of
the wall for the entire 300-foot area. (Tr. 149-152, 160-161, GX-10, p. 1-4). There
was also loose, unconsolidated rock in several areas and there were numerous
trees right near the edge of the wall. (Tr. 149). There was shale located
underneath all of the tree roots. (Tr. 152-152, GX-10, p. 6). There was no
evidence of trees hanging over the edge or material falling at that time,
though it was hard to tell what may have fallen because of the shot material. (Tr.
192, 205). Stubblefield could not tell how far from the edge the trees were
located. (Tr. 192). These conditions were largely the same as previous
citations. (Tr. 192-193). This condition was caused by failing to properly
scale as the wall developed. (Tr. 153-154). In this situation, Respondent should
have been cleaning the top from the beginning, especially in light of the
earlier citations and the new ground control plan. (Tr. 157-158). However,
Stubblefield later realized he had misspoken; the new ground control plan was
not yet in effect. (Tr. 182).

Smith had seen the wall before
Stubblefield arrived and did not see any problems in the area. (Tr. 223). Baker
saw roots and vines over the edge but agreed that there was no hazard. (Tr.
235, 244, 246). There were roots and vegetation on top of the wall but they did
not believe these would fall into the pit and hit anyone. (Tr. 224, 235-236,
248-249). The roots were not attached to anything. (Tr. 244-245). The trees did
not look unstable. (Tr. 224).

As a result of this condition,
Stubblefield issued a 104(d)(1) Order, No. 8366655 (GX-7) under Section 77.1001.
(Tr. 143-145, 149, 161).

The citation was marked as “Fatal.” (Tr.
162). Unlike the previous citation, miners were on foot with no protection, so
a “Permanently Disabling” designation was not appropriate. (Tr. 162). Something
small falling from the highwall and striking a miner in the head or in the back
of the neck was highly like to be fatal. (Tr. 163).

The citation was marked as “Highly
Likely” because it was highly likely that miners on foot underneath the
highwall without protection would be struck by something falling and fatally
injured. (Tr. 163-164). In Stubblefield’s experience, under normal mining
condition, unconsolidated material and material at the top of the highwall was
going to fall. (Tr. 164). Stubblefield could not say how much the root balls
weighed. (Tr. 192-193).

The citation was marked as affecting one
person because if something fell from the wall, it was likely only one person
would be struck. (Tr. 164).

The citation was marked as “High”
negligence and an unwarrantable failure because it was more than ordinary
negligence, it was a violation of a mandatory standard, it was obvious to
anyone entering the area such that no one could accidentally overlook it, it
had existed for more than one shift, it was extensive across the whole crest of
the hill, it posed a hazard to miners, and an examination was conducted by
Respondent’s agent (Baker) but no hazards were recorded and no corrective
action was taken. (Tr. 164-167, 177-178).

The condition had to exist at the time
when the wall first began developing. (Tr. 174). Stubblefield believed the
first steps in the blasting process started November 4 because that was the
first day noted in the examination record. (Tr. 176, 190-191). Baker agreed
with this reasoning, though he did not know the exact date development began. (Tr.
240, 244). Stubblefield did not know if vegetation was removed prior to
November 1, but if it was it should have been listed in an examination record. (Tr.
191-192, 211-212). An examination record would exist even if no hazards were
found. (Tr. 243). No work should be performed in an area without a pre-shift
examination. (Tr. 212, 243). Baker insisted that Respondent would never work in
an area that was not examined. (Tr. 243). Stubblefield did not recall seeing a
record from any earlier date, though earlier dates could have been in a prior
book. (Tr. 213-214).

Stubblefield believed this condition was
similar to that in Citation No. 8366644 and therefore Respondent had notice
with respect to the negligence and UWF designations. (Tr. 167-168). Baker did
not recall receiving any earlier citations or notice from MSHA that conditions
like this were a hazard. (Tr. 245). Baker did not agree with Citation No.
8366644. (Tr. 245-246). However, he conceded that the conditions were similar
in the instant matter and Citation No. 8366644. (Tr. 246). He did not intend to
say that he was not required to consider something a hazard when MSHA cited it
in the past. (Tr. 246).

Respondent terminated the citation by
barricading the area 30 feet from the wall and bypassing the area. (Tr. 161). The
barricade applied only to miners on foot, not equipment. (Tr. 206). The area
was later reclaimed and there was no way to do that without allowing equipment
within 30 feet of the wall. (Tr. 161, 206-207). Respondent had to reclaim the
wall under state law. (Tr. 207). Miners in equipment were afforded regular
protection. (Tr. 206). Stubblefield did not believe this contradicted the
finding of “highly likely” and “fatal” because the miners in the citation were
on foot and there was no other way to reclaim the wall. (Tr. 207). It took
until February 7 to terminate the condition. (Tr. 162). Stubblefield was not
present for the reclamation and did not know if anyone was placed in danger
during that process. (Tr. 209-210). There was no indication Respondent was
taking any steps before Stubblefield arrived. (Tr. 162).

In addition to the material on top of
the wall, there were also seams or cracks in unconsolidated rock in the wall
with the potential for failure. (Tr. 152-153, 168, 197, GX-10, p. 4-6). There
were many different laminated layers or strata of stone in the area and these
become destabilized and cracked when vibrations occur during blasting. (Tr.
154-156, GX-10, p. 4). Stubblefield was positive he saw cracks, not shadows. (Tr.
194). Baker believed that the places that Stubblefield believed were cracked
were likely just hill seams.[16] (Tr. 238). Stubblefield
agreed the layers were natural hill seams, but argued blasting could weaken
them. (Tr. 156-157). The seams could open up and something that was originally
solid could become unconsolidated. (Tr. 208). This condition was also caused by
a failure to properly scale the wall. (Tr. 153, 169).

Smith did not see any loose, cracking or
unconsolidated material that might cause injury to those in the area. (Tr.
224-225). He would not have worked in an area that would put his crew in
danger. (Tr. 226). Baker believed this was a “good slick wall.” (Tr. 236,
248). Material did not fall off the wall during development. (Tr. 248). If
material was falling, it would be a sign of instability and the area would be
barricaded immediately. (Tr. 248). The wall was no different than others he
worked on during his career. (Tr. 249).

To correct this problem, the Respondent
needed to adjust the drill bit size or pattern when encountering new strata to
ensure the wall was stable. (Tr. 155). Respondent should have recognized the
different laminated layers of stone and taken extra care. (Tr. 156-157). It was
also important to take extra care using equipment to clean and scale the wall
during development. (Tr. 155, 168-169).

The only way to determine if a rock was
loose was to knock it down with an excavator. (Tr. 194, 237). If something
looked unconsolidated but could not be pulled down, it was not loose. (Tr. 194,
237-238). Smith claimed that Respondent used excavators and dozers to do this
cleaning all of the time in this area. (Tr. 225). According to Baker,
Respondent prioritized working on the wall with the dozer or excavator after a
shot so that it was safe. (Tr. 239).

Stubblefield knew the marks in the wall
were cracks rather than indications of previous attempts to scale the area
because he did not see any dozer blade, loader bucket, or excavator teeth
imprints from those machines. (Tr. 154, 195-196). If Respondent had scaled with
equipment, the highwall would have been smoother. (Tr. 169). The seams would
have still been visible but unconsolidated rock would not be present. (Tr.
169). He believed the cracks in the wall indicated that the rocks were loose
and unconnected (however he could not say for sure if the areas were
connected). (Tr. 195, 197-198). Stubblefield saw places where rocks had popped
out during blasting. (Tr. 196). Stubblefield and Smith testified it was
possible for a wall to look good and scaled during development but for it to
get worse after additional blasting and weather changes. (Tr. 201, 227). Stubblefield
did not know if the cracks had been there the whole time. (Tr. 201). Smith
believed that if there were, a dozer or excavator would again be used to scale.
(Tr. 227). Stubblefield could not tell if the lines were caused by core
drilling. (Tr. 196-197).

As a result of this condition,
Stubblefield issued a 104(d)(2) Order, No. 8366656 (GX-8). (Tr. 143-145, 168).

The citation was marked as “Highly
Likely” and “Fatal” because there were miners working on foot beside the wall
loading holes for blasting and they were not afforded any protection. (Tr.
171). Stubblefield believed were hundreds, perhaps thousands of pounds of
material that might topple over and strike someone. (Tr. 171-172). However, he
conceded he could not tell the exact weight of the loose material. (Tr. 208). Under
continued normal mining, and considering the nature of the condition, blasting
in the area, and the weather, Stubblefield believed this material was going to
fall from the seams. (Tr. 172-173, 208-209). However, he could not say when it
was going to fall. (Tr. 209). If the highwall was in place for a year or two
something would fall, but highwalls were no longer opened for that length of
time. (Tr. 209). This condition was probably more dangerous than Citation No.
8366655 because of the amount of the material present. (Tr. 172).

Stubblefield believed that if the
material fell it would strike one person. (Tr. 173).

The citation was marked as “High”
negligence and an unwarrantable failure because it was a violation of mandatory
standard, it was obvious to anyone entering the area such that no one could
accidentally overlook it, the wall was extensive, had existed for some time, it
posed a hazard to miners, an agent of the operator was present, and examination
was conducted but no corrective actions were taken. (Tr. 173, 176-178). The
condition had to exist for several shifts because it would take that amount of
time to reach that point in the mining process. (Tr. 175). It was not possible
that it arose after the most recent examination. (Tr. 175-176).

Respondent terminated this condition the
same way as with Citation No. 8366655: by barricading 30 feet away, bypassing
the area, and reclaiming the area. (Tr. 170-171).

Stubblefield also found that these
conditions were present back to November 4, but that nothing was recorded in
the record books and no corrective action was taken. (Tr. 173-174, 179, 199). Therefore,
he found the examination was inadequate. (Tr. 179, 199-200). Smith was acting
foreman at the time the citation was issued and he was an agent of Respondent.[17]
(Tr. 185, 229). Baker arrived shortly thereafter and Stubblefield explained the
situation. (Tr. 185, 188). Baker had conducted the examination that day, though
Smith also looked at the wall because he was working underneath of it. (Tr.
228-229). Baker testified that if an examiner does not believe something to be
a hazard, he does not write it down. (Tr. 236). Baker did not see any dangers
to place in the book during his examination. (Tr. 198, 243). If he had seen a
danger he would have barricaded it until it could be made safe. (Tr. 241). However,
Stubblefield believed Baker should have seen and recorded these issues because
the previous citations placed him on notice. (Tr. 198-199). Baker was
investigated to see if he would be personally cited for these conditions. (Tr.
239). He never received heard the outcome of that investigation. (Tr. 239-240).
Stubblefield was not aware of this investigation. (Tr. 200).

As a result of this condition,
Stubblefield issued a 104(d)(2) Order, No. 8366657 (GX-9). (Tr. 143-145, 179).

This citation was marked as “Highly
Likely” and “Fatal” because examinations were an important part of the
examiner’s job and here the examiner did not do an adequate exam and miners
worked underneath the unsafe conditions. (Tr. 182-183).

The citation was marked as affecting one
person, but it should have been marked for two because the blaster, the blaster
helper, and the drill operator were all in the area. (Tr. 183-184). The drill
operator was drilling underneath the wall when Stubblefield arrived. (Tr. 184).

The citation was marked for “high”
negligence and an unwarrantable failure because Respondent violated a mandatory
standard, it was more than ordinary negligence, it was obvious, existed for
some time, exposed miners to a hazard, the mine foreman was there, and an
examination was conducted but it was inadequate and no corrective action was
taken. (Tr. 184, 188-189). The foreman is the one charged with making the area
safe and the conditions should have been obvious. (Tr. 184).

To terminate the cited condition,
Respondent developed an action plan that addressed the underlying conditions. (Tr.
179-180). Respondent conducted training on the first and second shifts
regarding stripping loose materials a safe distance back from the top, removing
loose materials, and conducting adequate examinations. (Tr. 180). The training
also discussed the ground control plan and pre-operational examinations of
equipment. (Tr. 180).

When Stubblefield was in the area, he
asked Smith if the holes were loaded. (Tr. 159, 210). Stubblefield testified that
Smith said that they were. (Tr. 159, 202, 210). When Stubblefield issued the
order, the explosives would have to remain in the ground. (Tr. 159). Instead,
Stubblefield gave Respondent permission to detonate the explosives. (Tr. 159,
161, 201-203). Stubblefield considered the fact that Respondent could not
reclaim the area safely with the explosives in place. (Tr. 159). They could
have “washed out” the holes with water instead, but it would have exposed
miners with hoses for a longer time than detonation. (Tr. 160). It was not
possible to remove the detonator, primer with ammonia nitrate, and the whole
stem once loaded. (Tr. 202). He did not ask Smith to remove anything from the
holes. (Tr. 210).

Smith recalled that when Stubblefield
arrived, he was still loading his truck to prepare for a shot and that none of
the holes had been loaded. (Tr. 220). Smith spoke with Stubblefield and sent
his two helpers to prime the holes.[18] (Tr. 221). Stubblefield
said to get the primers and caps out of the holes in the area and the blasters
did so with their hands. (Tr. 222, 228, 240-241). No ANFO was in the hole so
there was no danger in removing them. (Tr. 223). After removing the material,
they put everything in boxes and headed to the magazine. (Tr. 225). Respondent
then explained there was going to be a bad rain that evening and asked if they
could load and shoot. (Tr. 24). Stubblefield gave them permission and they did
so. (Tr. 226, 231, 240-241). Stubblefield did not order any additional
precautions before setting off the shot. (Tr. 227, 241).

II.
Contentions
of the Parties Regarding Order No. 8366655

With respect to Order No. 8366655, the
Secretary asserts that Respondent violated 30 C.F.R. §77.1001, that this violation
was Highly Likely to result in Fatal injuries to one miner, that the violation
was S&S, and that it resulted from High Negligence and an Unwarrantable
Failure to comply. (GX-7)(Secretary’s Post-Hearing Brief at 29-35). The
Secretary believes that the proposed penalty of $18,742.00 is appropriate. (Id.
at 36-37).

Respondent
argues that there was no violation of the cited standard. (Respondent’s
Post-Hearing Brief at 19). Further, it argues that even if there were a
violation of the cited standard, that it would not be S&S and did not
display an unwarrantable failure to comply. (Id. at 21-23). Finally,
Respondent presumably believes that the penalty should be vacated or, in the
event the order is found valid, reduced pursuant to its proffered gravity and
negligence determinations.

III.
Findings
of Fact and Conclusions of Law Regarding Order No. 8366655

a.
The
Secretary Has Carried His Burden Of Proof By A Preponderance Of The Evidence
That Respondent Violated 30 C.F.R. §77.1001.

On November 19, 2011, Inspector Stubblefield
issued a 104(d)(1) Order, No. 8366655, to Respondent. Section 8 of that Order,
Condition or Practice, reads as follows:

The mine operator has failed to strip
loose hazardous materials a safe distance from the top of the highwall in the
Leatherwood Seam (5A) Pit, in the right side of the Cow Head. This area begins
at the point where the active pit turns the point out of the Cow Head Hollow
and extends along the contour cut to where the drill bench begins, for a
distance of at least Three Hundred Feet (300’) by visual observation. Loose
materials in the form of trees and roots are hanging along and over the
crest/edge of the wall for the entire distance, and loose, unconsolidated rock
is also present at several locations along this area. Numerous trees are also
standing on or, very near the crest of the highwall. This condition or practice
has been cited at this mine Two (2) times previously in the last Two (2) years.
This condition was discussed with the Mine Foreman on 10/12/2011, and
11/03/2011, during mine visits. The condition is obvious to anyone entering the
pit. The history of the mining industry has shown that highwall failures can,
and do occur, such as occurred recently on 10/28/2011 which claimed the life of
Two (2) miners. This is an unwarrantable failure to comply with a mandatory
standard and constitutes more than ordinary negligence on the part of Mine Management.
Citation #8366656 is issued today for failure to adequately scale loose rocks
and materials from the highwall in this area.

(GX-7). The document also contained a
modification, stating:

This order is modified to allow the Mine
Operator to resume mining operations at this mine. He has developed an action
plan to address stripping loose material a safe distance back from the top of
the highwall. His plan states that loose material will be stripped a minimum of
Ten Feet (10’) back from the top of the wall in all locations, by use of dozers
and excavators. The plan also states that the area affected by the Order will
be barricaded a minimum distance of Thirty Feet (30’) away from the wall. No
miners will be allowed in this area on foot. This barricaded area will be
bypassed by the mining sequence. The area will be reclaimed by using dozers and
rock trucks to dump and push materials against the wall until it is reclaimed.

(GX-7). The Order was also amended to change
the type of action from a 104(d)(1) Order to a 104(d)(2) Order. (GX-7). Finally,
the Order was terminated with Stubblefield noting:

The affected area has been bypassed by
the mining sequence and is being reclaimed by using dozers and rock trucks to
dump and push materials against the wall.

(GX-7).

Stubblefield credibly testified that
Respondent had failed to strip loose, hazardous material from the edge of the
instant highwall. (Tr. 149, 222). Specifically, he found loose material
including roots hanging right over the edge and the crest of the wall for the
entire 300-foot area. (Tr. 149-152, 160-161, GX-10, p. 1-4). These roots
contained shale. (Tr. 152-153, GX-10, p. 6). He also saw loose, unconsolidated
rock in several areas and there were numerous trees right near the edge of the
wall. (Tr. 149). No barrier was constructed until after the violations were
terminated. (Tr. 160-161). Stubblefield testified that these conditions were
largely the same in Citation No. 8366644. (Tr. 192-193). Therefore, I find
Respondent violated 30 C.F.R. §77.1001 with respect to Order No. 8366655.

In its brief, Respondent argued that
there was no loose, hazardous material in the area on November 19, 2011, and
that Stubblefield conceded that he did not see instability in the trees or root
balls that would indicate any material would fall into the pit. (Respondent’s
Post-Hearing Brief at 19). As with Citation No. 8366644, the issue here is
not whether material is about to fall into the pit, but instead whether that
material is loose. 30 C.F.R. §77.1001. Stubblefield credibly testified that he
saw loose material. (Tr. 149-152, 160-161, 222). The fact that there was no
imminent danger of a fall did not change the fact that this material was loose.
In Stubblefield’s experience, under normal mining condition, unconsolidated
material and material at the top of the highwall was going to fall. (Tr. 164). Therefore,
Respondent’s argument does not undermine the finding that the cited material
was loose and therefore violated 30 C.F.R. §77.1001.

b.
The
Violation Was Highly Likely to Result in a Fatal Injury And Was Significant And
Substantial In Nature.

Inspector Stubblefield found the gravity
of the cited danger in Order No. 8366655 as being “Highly Likely” to result in
a “Fatal” injury to a miner and that the condition was S&S. (GX-7). These
determinations were supported by a preponderance of the evidence.

Regarding the first element of S&S -
the underlying violation of a mandatory safety standard - it has already been
established that Respondent violated 30 C.F.R. §77.1001.

The second element of Mathies, a
discrete safety hazard – that is a measure of danger to safety – contributed to
by the violation – was also met. Material hanging from the highwall was likely
to fall under continued normal mining operations. (Tr. 164). Material falling
from the highwall would contribute to the danger of a miner being struck by
material. Stubblefield had previously testified that that he had seen miners
struck by material falling from highwalls in the past. (Tr. 33, 53).

In its brief, Respondent presented
several arguments to show that there was no hazard contributed to by this
condition. However, those arguments are not compelling.

Specifically Respondent argued that
there was no hazard contributed to because there was no instability and no one
saw anything fall into the pit. (Respondent’s Post-Hearing Brief at 22).
I credit the testimony of Inspector Stubblefield that the material would
eventually fall into the pit under continued normal mining operations,
notwithstanding the fact that the material did not appear unstable at that
time. (Tr. 164). There is no requirement under the Mathies formula that
a danger be imminent, only that there be some danger contributed to by the
violation. The material hanging from the edge of the highwall made the danger
of material falling into the pit more likely. Therefore, the second prong of Mathies
is met.

Respondent also argued that the
inspector knew there was no danger to miners in the area because Stubblefield
allowed the blasting crew to re-enter the area after the order was issued. (Respondent’s
Post-Hearing Argument at 23).

The exact nature of the decision to
allow miners to return to the area is unclear. Inspector Stubblefield testified
that he allowed miners to return to the area to detonate explosives that had
already been loaded. (Tr. 159, 161, 201-203, 210). He specifically testified
that he chose to allow the detonation rather than having the holes “washed out”
because it limited exposure to the cited condition. (Tr. 160). Smith testified
that Stubblefield allowed the miners to enter the area and remove the primers
and caps with their hands. (Tr. 222, 228, 240-241). He said that after
management explained that there was going to be rain, they asked if they could
reload the holes and shoot. (Tr. 240). He testified that Stubblefield gave them
permission and they did so and did not order any additional precautions before
the shot. (Tr. 226-227, 231, 240-241).

The most likely explanation for this
discrepancy in the testimony is that there was a misunderstanding. It is
possible that Stubblefield did not realize that Respondent had asked to remove
the primers and caps earlier or misheard when Respondent asked to re-enter the
area and load the shots again. However, the issue is largely immaterial. Even if
Smith’s testimony is accurate, and Stubblefield allowed miners to enter the
area and remove caps and primers and then return to the area to load and fire a
shot, the cited condition was still hazardous. If Stubblefield knowingly
allowed miners to re-enter the hazardous area then he, like Respondent,
committed a grievous error. However, that action in no way minimizes that
danger of material falling from the highwall. Stubblefield clearly believed
there was a danger and the evidence supports this determination. As a result,
Respondent’s argument, even if supported by the evidence, does not change the
determination with respect to the second prong of Mathies.

The third element of the Mathies
test – a reasonable likelihood that the hazard contributed to will result in an
injury – was also met. Stubblefield testified that the cited condition was
largely similar to the material found in Citation No. 8366644. In that
instance, Stubblefield testified that he saw root balls weighing 50-100 pounds
in the area. (Tr. 54, 88-89). However, unlike in Citation No. 8366644, in the
instant matter Stubblefield saw miners working on foot below the highwall. If
50-100 pound root balls fell into the pit, they could easily strike a miner
working on foot. This would be a fall of around 55-60 feet. (Tr. 163, 189-190).
Given the weight of the material and the height of a fall, it is reasonably
likely that a miner being struck by a root ball would suffer an injury.

In its brief, Respondent argued that
safety precautions in the equipment would keep miners in the area safe. (Respondent’
Post-Hearing Brief at 23). This is true for the reasons discussed supra,
with respect to Citation No. 8366644. However, unlike in the previous citation,
miners here were working on foot. Safety measures contained in the equipment
would not provide any protection to these miners. As a result, safe equipment
would not limit the likelihood of injury here.

Under Mathies, the fourth and
final element that the Secretary must establish is that there was a “reasonable
likelihood that the injury in question will be of a reasonably serious nature.”
Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC 1573,
1574 (July 1984). A miner being struck by 50-100 pounds of material falling
55-60 feet would suffer devastating, likely fatal, injury. Clearly, fatal
injuries would be reasonably serious. Therefore, the fourth prong of Mathies
is met.

Based on the foregoing, I find that a
preponderance of the evidence supports a finding that the cited condition would
be “Highly Likely” to result in “Fatal” injury to one miner and further find
that the S&S designation was appropriate.

c.
Respondent’s
Conduct Is Best Characterized As “High” Negligence and an Unwarrantable
Failure.

In the order at issue, Inspector Stubblefield
found that the operator’s conduct was highly negligent in character and the
result of an unwarrantable failure. (GX-7). I find that the substantial
evidence supports this determination.

In the instant matter, Baker and Smith
were members of management. (Tr. 99, 230, 238-239). Both had seen the material
on the highwall. (Tr. 223, 235-236, 244-249). Further, Baker conducted the pre-shift
examinations of the cited area. (Tr. 228-229). Smith acted as foreman in the
area when Baker was not present. (Tr. 185, 229). Baker testified that he saw
roots and fines on the edge of the pit (though he testified that there was no
hazard). (Tr. 235, 244, 246). Perhaps most importantly, Baker had been present
when the previous citation under this standard, No. 8366644, was issued. Stubblefield
testified that the instant condition was substantially similar to the condition
in that earlier citation. Therefore, Baker knew, or should have known, that the
roots constituted a hazard to miners along the highwall. Therefore, Respondent
knew or should have known that a violation existed and was negligent. The
question that remains is the degree of that negligence.

Having reviewed the evidence at length,
I have determined that there were no mitigating circumstances present. As a
result, I find that the “High” negligence designation is appropriate.

In its brief, Respondent argued that
there were several mitigating circumstances present. However, none of these
arguments are compelling. First, Respondent argued that its examiners
reasonably believed that no hazard was present. (Respondent’s Post-Hearing
Brief at 21). As with Citation No. 8366644, the cited condition was
obvious, and anyone entering the area would see loose roots and other material
hanging from the side of the wall. Unlike Citation No. 8366644, at the time the
instant order was issued, Respondent could no longer claim it was unaware of
the hazard posed by that material. It is significant that Order No. 8366655 was
issued by the same inspector, Stubblefield, and to the same member of
management, Baker, as Citation No. 8366644. At the time of the instant order, Baker
could no longer credibly claim ignorance as to the danger posed by the loose
material and root balls. At hearing Baker conceded that he did not agree with
Citation No. 8366644 but agreed that the instant situation was similar to that
citation. (Tr. 245-246). He also tried to argue that he would not simply ignore
a hazard cited by MSHA because he disagreed that it existed. However, there is
really no other way to interpret the facts presented. Baker saw the cited
material, he knew from the previous citation that MSHA believed it was a
hazard, and he still took no action to correct the problem or even record it. Because
Baker could no longer reasonably believe that the cited condition posed no
hazard, it cannot constitute a mitigating circumstance.

Respondent also noted that the material
appeared stable so there was no danger. (Respondent’s Post-Hearing Brief
at 21). Relatedly, it argued that Stubblefield allowed the blasting crew to
return, again showing there was no danger. (Id.). For the reasons
discussed with respect to gravity supra, Respondent knew or should have
known that the material was a danger, even if there was no imminent risk of
fall. Further, whether Stubblefield allowed miners to return to the area is
irrelevant to Respondent’s level of negligence. As a result, I find that the
“High” negligence designation was appropriate.

The Secretary also found that the cited
condition constituted an unwarrantable failure to comply. I will now turn to
the six IO Coal factors with respect to that determination:

1. Extent Of The
Violative Condition

Stubblefield
credibly testified that there was loose material including roots hanging right
over the edge and the crest of the wall for the entire 300-foot area. (Tr. 149-152,
160-161, GX-10, p. 1-4). Nothing presented by Respondent refutes this
testimony. Therefore, the instant violation was extensive.

2. The Length of
Time of the Violation Existed

The condition had to exist at the time
when the wall first began developing. (Tr. 174). Stubblefield believed the
first steps in the blasting process started November 4 because that was the
first day noted in the examination record. (Tr. 176, 190-191). An examination
record would exist even if no hazards were found. (Tr. 243). Baker agreed with
this reasoning and insisted Respondent would not work before a pre-shift
examination, though he did not know the exact date development began. (Tr. 240,
243-244). Therefore, it is undisputed that the condition existed for several
days and many shifts.

3. Whether the
violation is obvious or poses a high degree of danger

As discussed
with respect to the gravity determination, this condition was highly dangerous.
Miners were working on foot below the root balls and other materials. (Tr. 148-150,
160-161). It was highly likely that one of the miners would be struck by
material and face a fatal injury. Further, the condition was obvious. Stubblefield
testified that anyone in the area would see the hazard. (Tr. 164-167, 177-178).
In fact, Respondent’s pre-shift examiner, Baker, had seen the condition but had
simply failed to list it as a hazardous condition. (Tr. 198, 235-236, 243-244,
246).

In
its brief, Respondent argued that the condition posed no hazard. Superficially,
it stated that there was no instability on the highwall and miners were allowed
to reenter the area to set off a detonation. (Respondent’s Post-Hearing
Brief at 21). These arguments are rejected for the same reasons discussed
with respect to gravity, supra.

4. Whether the
operator had been placed on notice that greater efforts were necessary for
compliance or that this condition was an issue.

The
evidence clearly establishes that the Secretary provided direct notice to
Respondent in the form of Citation No. 8366644. Both Stubblefield and Baker
testified that the instant matter was very similar to that earlier citation. (Tr.
192-193, 246). It is significant that Baker specifically received this earlier
notice and was the pre-shift examiner responsible for the instant cited area. Therefore,
Respondent knew that MSHA considered hanging material along the edge of a
highwall to be a hazardous condition. Respondent also knew that MSHA expected
the management to monitor highwalls and to correct any problems that occurred
with hanging material. This notice was explicit and had occurred just a few
weeks earlier. Therefore, I find Respondent had notice that greater efforts
were necessary for compliance.

5. The operator’s
efforts in abating the violative condition

Smith and Baker
credibly testified that Respondent took actions to ensure that material was not
hanging over the edge of the wall. However, it is undisputed that Respondent
failed to remove the small root balls and other materials that were hanging
over the edge. (Tr. 149-152, 160-161). Therefore, Respondent took some action
to abate the violative condition, but those efforts were insufficient.

6. Operator’s
knowledge of the existence of the violation

As
discussed supra, the preponderance of the evidence shows that Baker knew
or should have known about the violative condition and the hazard it posed. Therefore,
Respondent knew or should have known that the hanging material was
unacceptable.

In
light of the cited condition’s large extent, lengthy time, obviousness, high
degree of danger, lack of abatement, Respondent’s notice, Respondent’s
knowledge and the fact that Respondent’s actions were best characterized as
“high” negligence, I find that the violation was an unwarrantable failure on
the part of the operator.

d.
Penalty

In this matter, the Secretary proposed a
penalty of $18,742.00 for Order No. 8366655. Having affirmed the Secretary’s
determinations in all respects, no deviation from the proposed penalty is necessary.
In fact, the proposed penalty is appropriate under the Act. Therefore,
Respondent is hereby ORDERED to pay a civil penalty in the amount of $18,742.00.

IV.
Contentions
of the Parties Regarding Order No. 8366656

With respect to Order No. 8366656, the
Secretary asserts that Respondent violated 30 C.F.R. §77.1005(a), that this violation
was Highly Likely to result in Fatal injuries to one miner, that the violation
was S&S, and that it resulted from High Negligence and an Unwarrantable
Failure to comply. (GX-8)(Secretary’s Post-Hearing Brief at 37-43). The
Secretary believes that the proposed penalty of $18,742.00 is appropriate. (Id.
at 43-44).

Respondent
argues that there was no violation of the cited standard. (Respondent’s
Post-Hearing Brief at 19-20). Further, it argues that even if there were a
violation of the cited standard, that it would not be S&S. (Id. at
22-23). Further, it argues that its actions did not display an unwarrantable
failure to comply. (Id. at 21). Finally, Respondent presumably believes
that the penalty should be vacated or, in the event the order is found valid,
reduced pursuant to its proffered gravity and negligence determinations.

V.
Findings
of Fact and Conclusions of Law Regarding Order No. 8366656

a.
The
Secretary Has Failed to Carry His Burden Of Proof By A Preponderance Of The
Evidence That Respondent Violated 30 C.F.R. §77.1005(a).

On November 19, 2011, Inspector Stubblefield
issued a 104(d)(1) Order, No. 8366656, to Respondent. Section 8 of that Order,
Condition or Practice, reads as follows:

The Mine Operator as failed to
adequately scale the highwall of loose unconsolidated materials, in the form of
rocks, in the Leatherwood (5A) pit, in the right side of the Cow Head area of
the mine. This area begins at the point where the active pit turns the point
out of the Cow Head Hollow and extends along the contour cut to where the drill
bench begins, for a distance of Three Hundred Feet (300’) by visual
observation. There are several hill seams with cracks which separate sections
of rock from the solid wall and the overall condition of the highwall is
jagged. Order #8366655 is issued today for failure to adequately strip loose
materials a safe distance from the top of the highwall. The history of the
mining industry has shown that highwall failures can, and do occur, such as
occurred recently on 10/28/2011 which claimed the lives of Two (2) miners. This
is an unwarrantable failure to comply with a mandatory standard and constitutes
more than ordinary negligence on the part of mine management.

(GX-8). The document also contained a
modification, stating:

This Order is modified to allow the
Miner Operator to resume mining operations at this mine. He has developed an
action plan to address stripping loose material a safe distance back from the
top of the highwall and the scaling of loose materials from the highwall. His
plan states that loose materials will be stripped a minimum of Ten Feet (10’)
back from the top of the wall in all locations, and loose materials will be
scaled from the wall by use of dozers and excavators. The plan also states that
the area affected by the Order will be barricaded a minimum distance of Thirty
Feet (30’) away from the wall. No miners will be allowed in this area on foot. This
barricaded area will be bypassed by the mining sequence. The area will be
reclaimed by using dozers and rock trucks to dump and push materials against
the wall until it is reclaimed. Miners from both First and Second Shifts were
trained in this plan today along with the Acknowledged Ground Control Plan for
this mine, as well as performing adequate examinations of work areas and
equipment

(GX-8). The Order was also amended to
change the type of action from a 104(d)(1) Order to a 104(d)(2) Order. (GX-8). Finally,
the Order was terminated with Stubblefield noting:

The affected area has been bypassed by
the mining sequence and is being reclaimed by using dozers and rock trucks to
dump and push materials against the wall.

(GX-8).

The
cited standard, 30 C.F.R. §77.1005(a) (“Scaling
highwalls; general.”), provides the following:

Hazardous
areas shall be scaled before any other work is performed in the hazardous area.
When scaling of highwalls is necessary to correct conditions that are hazardous
to persons in the area, a safe means shall be provided for performing such
work.

30
C.F.R. §77.1005(a).

According to Judge Paez, in order to
prove a violation of the cited standard, “[t]he Secretary must then show either
(1) that work was performed in the hazardous area before the area was scaled,
or (2) though the hazardous area was scaled, no safe means to and from the
hazardous area was provided.” Humphrey’s Enterprises, Inc., 2011 WL
7463292, *5 (Dec. 21, 2011)(ALJ Paez).

Stubblefield issued the instant order
because there were seams or cracks in unconsolidated rock in the wall with the
potential for failure. (Tr. 152-153, 168, 197, GX-10, p. 4-6). He believed
these seams indicated that different laminated layers of stone had become
destabilized during blasting. (Tr. 154-156, GX-10, p. 4). Stubblefield believed
these cracks could have been caused by natural hill seams that were weakened
during blasting. (Tr. 156-157, 208). Stubblefield testified that this condition
was caused by a failure to properly scale the wall. (Tr. 153, 169). Stubblefield
also testified that there was no indication of previous attempts to scale the
area. (Tr. 154, 169, 195-198). Stubblefield and Smith agreed it was possible
for a wall to look good and scaled during development but for it to get worse
after additional blasting and weather changes. (Tr. 201, 227).

However, after carefully reviewing the
testimony and the photographs provided by the inspector (GX-10), I find that
the Secretary failed to carry the burden. Smith and Baker credibly testified
that they did not see any loose, cracking, or unconsolidated material in the
area. (Tr. 224-225, 236, 248). The photographs support this testimony. Baker testified
that he would not have put his crew in danger. (Tr. 226). Smith testified he
believed Respondent would have barricaded the material immediately if material
fell during development, but it did not. (Tr. 248). The structural integrity of
the wall appeared the same as any other wall Smith had ever worked on. (Tr.
249). Perhaps more importantly, both Smith and Baker testified that Respondent
used excavators and dozers to scale walls regularly and that this was a
priority. (Tr. 225, 239). Respondent had tried to pull loose material with
equipment and found it was secure. (Tr. 225). These locations can be seen in
the photographs. Further, there was no indication at hearing of any freezing or
thawing cycles that may have caused material to loosen after scaling.

In short, Respondent presented credible
evidence to rebut the Secretary’s assertion regarding the loose nature of the
rocks. Respondent’s witnesses testified credibly about Respondent’s efforts to
scale and the integrity of the wall. The photographs, rather than supporting
the Secretary’s case, provided some support to Respondent’s arguments. The
Secretary’s only legal support for its case was one L&J Energy Company,
Inc., 16 FMSHRC 424 (Feb. 1994)(ALJ Weisberger). In that case, loose
material was validly cited on an active highwall even though Respondent had
already scaled the area. Id. at 444. However, in contrast to the instant
order, the situation in that case had freezing and thawing cycles, which
loosened the rocks. Id. at 441. There was no evidence of freezing and
thawing here. Nor was there any other reason to believe that any particular
section of the wall was loose, just Stubblefield’s assertion that the hill
seams had come apart in a way that was not clearly visible on the photographs. Further,
in L&J Energy Company, Inc., the fact that rocks were loose in the
area was proven when one rock actually fell. Id. at 444. While a rock did
not need to fall here in order to prove the material was loose, I believe there
needed to be some credible, supported evidence to show that a fall was
possible. No such evidence exists on this record. Therefore I find the
Secretary failed to show by a preponderance of the evidence that Respondent
violated 30 C.F.R. §77.1005(a).

In light of the Secretary’s failure to
establish that Respondent violated the cited standard, it is not necessary to
discuss the gravity or negligence designations. Order No. 8366656 and the
related civil penalty are hereby VACATED.

VI.
Contentions
of the Parties Regarding Order No. 8366657

With respect to Order No. 8366657, the
Secretary asserts that Respondent violated 30 C.F.R. §77.1713(a), that this violation
was Highly Likely to result in Fatal injuries to one miner, that the violation
was S&S, and that it resulted from High Negligence and an Unwarrantable
Failure to comply. (GX-9)(Secretary’s Post-Hearing Brief at 44-48). The
Secretary believes that the proposed penalty of $18,742.00 is appropriate. (Id.
at 48-49).

Respondent
argues that there was no violation of the cited standard. (Respondent’s
Post-Hearing Brief at 20). Further, it argues that even if there were a
violation of the cited standard, that it would not be S&S. (Id. at
22-23). Further, it argues that its actions did not display an unwarrantable
failure to comply. (Id. at 21). Finally, Respondent presumably believes
that the penalty should be vacated or, in the event the order is found valid,
reduced pursuant to its proffered gravity and negligence determinations.

VII.
Findings
of Fact and Conclusions of Law Regarding Order No. 8366657

a.
The
Secretary Has Carried His Burden Of Proof By A Preponderance Of The Evidence
That Respondent Violated 30 C.F.R. §77.1713(a).

On November 19, 2011, Inspector Stubblefield
issued a 104(d)(1) Order, No. 8366657, to Respondent. Section 8 of that Order,
Condition or Practice, reads as follows:

The Mine Foreman has failed to conduct
an adequate examination for hazardous conditions, in the right side of the
Leatherwood Seam (5A) pit of the Cow Head area of this mine. Order #8366655 is
issued today for failure to strip loose materials a safe distance from the top
of the highwall in this area, and Order #8366656 is issued today for failure to
adequately scale the highwall of loose unconsolidated materials from the
highwall in this area. The On-Shift Examination Record Book for this mine
indicates no hazardous conditions reported or, corrective actions taken in this
area since 11/04/11, continuing through today. The conditions cited in the
above orders are obvious to anyone entering the pit area. These conditions
should have been found, recorded in the examination record, and corrected
before the mining sequence was allowed to continue. This history of the mining
industry has shown that failure to conduct adequate examinations exposes miners
to hazards such as those conditions which led to the issuance of this order,
that are highly likely to cause an accident which would be fatal. This mine was
cited previously for this same practice on 11/01/11 (see Citation #8366645). This
is an unwarrantable failure to comply with a mandatory standard and constitutes
more than ordinary negligence on the part of mine management.

(GX-9). The document also contained a
modification, stating:

The Mine Operator has developed an
action plan to address the conditions that initially led to the issuance of
this Order. Training has been conducted today with the Mine Foreman’s [sic]
from both First and Second Shifts, and miners from both shifts, on the Action
Plan, which covers stripping loose materials a safe distance back from the top
of the highwall, and scaling the highwall to remove loose materials, and
adequate examinations of those areas. The Ground Control Plan was covered, and
pre-operational examination of equipment was also addressed.

(GX-9). The Order was also amended to
change the type of action from a 104(d)(1) Order to a 104(d)(2) Order. (GX-9).

In the instant matter, it is undisputed
that the required examination was conducted by Baker in the highwall area. (Tr.
198, 443). Smith had also acted as foreman in the area while Baker was away. (Tr.
185, 229). The highwall was an active area in the mine. It is further
undisputed that root balls and other loose material were placed near the edge
of the highwall. (Tr. 149-152, 160-161). The area was developed from November
4, but it was undisputed that nothing had ever been recorded in the book. (Tr.
173-174, 179, 199).

In light of this evidence and my
previous findings, I find that a reasonably prudent person familiar with the
mining industry and the protective purposes of the act would have recognized
that the cited material was not permitted. As I found with respect to Order No.
8366655, the underlying condition constituted a hazard and should have been
obvious to Baker. The underlying standard specifically required loose,
hazardous material to be stripped a safe distance from the top of the highwall.
30 C.F.R. §77.1001. With his knowledge of the previous citation, Baker should
have recorded it in the examination record and taken steps to correct the
condition. The failure to do so constituted a violation of §77.1713(a)

In its brief, Respondent argued that the
order should be vacated because the underlying order should be vacated. (Respondent’s
Post-Hearing Brief at 20). As discussed supra, Order No. 8366655 was
validly issued. Therefore, Respondent’s argument is not supported by the
record.

b.
The
Violation Was Reasonably Likely To Result In A Fatal Injury And Was Significant
And Substantial In Nature.

Inspector Stubblefield found the gravity
of the cited danger in Order No. 8366657 as being “Highly Likely” to result in
a “Fatal” injury to one miner and that the condition was S&S. (GX-9). These
determinations were supported by a preponderance of the evidence.

Respondent’s failure to conduct an
adequate examination of the cited highwall exposed miners in the area to the
hazards discussed in Order No. 8366655. Furthermore, the parties’ arguments in
support of their positions with respect to this designation were identical to
those made with respect to Order No. 8366655. (Secretary’s Post-Hearing
Brief at 44-45, Respondent’s Post-Hearing Brief at 22-23). As a
result, the reasoning provided supra with respect to the gravity of Order
No. 8366655 is incorporated here by reference. Therefore, I find that Order No.
8366657 was “Reasonably Likely” to result in “Fatal” injuries to one miner and
was S&S.

c.
Respondent’s
Conduct Was The Result Of “High” Negligence And An Unwarrantable Failure.

In the order at issue, Inspector
Stubblefield found that the operator’s conduct was highly negligent in
character and the result of an unwarrantable failure. (GX-7). I find that the
substantial evidence supports this determination.

With respect to knowledge, Baker was a
member of management, he conducted the pre-shift examination in the area, and
he was aware that there was material near the edge of the wall. (Tr. 228-229). Further,
Baker had specific knowledge that MSHA believed this material was a hazard and
a violation of the underlying standard. However, he chose not to record or
correct the cited condition. (Tr. 198, 243). Therefore, Respondent knew or should
have known that a violation existed and was negligent. The question that
remains is the degree of that negligence.

Having reviewed the evidence at length,
I have determined that there were no mitigating circumstances present. As a
result, I find that the “High” negligence designation is appropriate.

In its brief, Respondent argued that
there were several mitigating circumstances present. Specifically, Respondent
made the same arguments regarding the examiner’s belief about the lack of a
hazard, the stable nature of the material present, and the fact that the
inspector allowed miners to return to the area. As such, the reasoning provided
with respect to negligence in Order No. 8366655 is incorporated here and
Respondent’s arguments are rejected.

The Secretary also found that the cited
condition constituted an unwarrantable failure to comply. I will now turn to
the six IO Coal factors with respect to that determination:

1. Extent Of The
Violative Condition

Baker
testified that Respondent would not allow work to occur in the cited area
unless a pre-shift examination had been conducted. (Tr. 212, 243). The area had
been developed on November 4, which was several weeks before the order was
issued. (Tr. 176, 190-191). As a result, many examinations would have been
conducted in this area. Therefore, the instant violation was extensive.

2. The Length of
Time of the Violation Existed

Stubblefield testified that this area
had been developed around November 4 but at no time was the cited condition
listed in the record book. (Tr. 173-174, 179, 199). This testimony was
unrefuted. Therefore, the condition had existed at least for several shifts.

3. Whether the
violation is obvious or poses a high degree of danger

As discussed
with respect to the underlying citation, this unrecorded and uncorrected
condition was highly dangerous. Miners were working on foot below the root
balls and other materials. (Tr. 148-150, 160-161). It was highly likely that
one of the miners would be struck by material and suffer a fatal injury. Further,
the condition was obvious as anyone entering the area would see the hazard. (Tr.
164-167, 177-178, 184, 188-189). In fact, Respondent’s pre-shift examiner,
Baker, had seen the condition but had simply failed to list it as a hazardous
condition. (Tr. 198, 235-236, 243-244, 246).

4. Whether the
operator had been placed on notice that greater efforts were necessary for
compliance or that this condition was an issue.

As
with the underlying citation, Respondent received direct, explicit notice in
the form of Citation No. 8366644 that loose, hanging materials like the root
balls were a hazard. Further, Respondent learned of the importance of listing
the loose material in the examination record from Order No. 8366645. Baker had
been responsible for the inadequate pre-shift examination cited in Order No.
8366645 and the instant matter. He agreed with Stubblefield that the instant
condition was substantially similar to the earlier citation. (Tr. 192-193, 246).
As a result, Respondent knew that this examination was inadequate. Therefore, I
find Respondent had notice that greater efforts were necessary for compliance.

5. The operator’s
efforts in abating the violative condition

Baker conducted
examinations of the area and actually saw the underlying condition. (Tr. 198,
235-236, 243-244, 246). He failed to recognize the condition as a hazard. (Tr. 198,
236, 243). There is no evidence of any abatement conducted before the order was
issued because of this failure to recognize the hazard.

6. Operator’s
knowledge of the existence of the violation

As
discussed supra, the preponderance of the evidence shows that Baker knew
or should have known about the violative condition and the hazard it posed. There
was no longer any reasonable basis to believe that the cited condition should
not be placed in the examination record. Therefore, Respondent knew or should
have known that the hanging material was unacceptable and that the examination
was inadequate.

e. Penalty

In this matter, the Secretary proposed a
penalty of $18,742.00 for Order No. 8366657. Having affirmed the Secretary’s
determinations in all respects, no deviation from the proposed penalty is
necessary. In fact, the proposed penalty is appropriate under the Act. Therefore,
Respondent is hereby ORDERED to pay a civil penalty in the amount of
$18,742.00.

ORDER

It is hereby ORDERED that
Citation and Order Nos. 8369000, 8369001, 8344920, 8366644, 8366645, 8366655,
and 8366657 are AFFIRMED as amended. It is hereby ORDERED that Order
No. 8366656 be VACATED.

Respondent is ORDERED to pay
civil penalties in the total amount of $51,484.00 within 30 days of the date of
this decision.[19]

/s/ John Kent Lewis

John Kent Lewis

Administrative
Law Judge

Distribution:

Anthony
M. Berry, Esq., U.S Department of Labor, Office of the Solicitor, 211 7th Avenue
North, Suite 420, Nashville, TN 37219

Billy
R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 N. Eagle
Creek Drive, Suite 310, Lexington, KY 40509

Thomas
Hamilton, Esq., Saltsman & Willett, PSC, 212 East Stephen Foster Avenue,
Bardstown, Kentucky 40004

[1]
The
heading on page 30 of this decision was amended to reflect the cited standard of
30 CFR § 77.1001 rather than 30 CFR §75.1001. Further, the heading on page 40
of this decision was amended to reflect the violation at issue was found to be “Reasonably
Likely To Result In A Fatal Injury And Was Significant And Substantial In
Nature.”

[2] Under the terms of the settlement, Citation No.
8369000 and Order No. 8369001 were modified to change the type of action from
104(d)(1) issuances to 104(a) citations. Further, the penalty for each was
reduced from $19,300.00 to $2,500.00. Therefore, the entire settled amount was
$5,000.00.

[3] Under the terms of the settlement, Citation No.
8344920 was modified from 104(d)(1) Citation marked as “Highly Likely,”
“Fatal,” “S&S,” and “High Negligence” to a 104(a) Citation marked as
“Unlikely,” “Permanently Disabling,” “Non-S&S,” and “Moderate Negligence. Further,
the penalty was reduced from $52,500 to $1,000.00.

[4] Hereinafter the
Joint Exhibits will be referred to as “JX” followed by the number. Similarly,
the Secretary’s Exhibits will be referred as “GX” and Respondent’s Exhibits
will be referred to as “RX.”

[5] Hereinafter the
transcript will be cited as “Tr.” followed by the page number.

[6]
Larry
Wayne Stubblefield was present at the hearing and testified. (Tr. 14). At the
time of the hearing, Stubblefield was a surface coal mine inspector specialist.
(Tr. 14). In that capacity, he inspected surface coal mines, prep plants, and
facilities, investigated accidents, and reviewed plans. (Tr. 15). He had
extensive experience, training, and certifications. (Tr. 15-16). He had
conducted highwall examinations for 10-12 years. (Tr. 16).

[7] The highwall
inspections here were unrelated to an earlier accidents or fatalities, though
MSHA may have discussed those accidents in meetings. (Tr. 203-204). Stubblefield
did not know if highwall violations in his district increased at this time. (Tr.
204).

[8]
A spot
inspection is not an inspection of the entire mine, but instead an inspection a
specific area, a specific item, a complaint, or some other particular thing. (Tr.
21).

[9]
Tracy
Creech was present at hearing and testified. (Tr. 120). At the time of the
hearing he was employed as safety coordinator for all of Respondent’s mines. (Tr.
120-121, 130-131). In that capacity he would travel with inspectors, check
equipment, conduct training, deal with citizen complaints, and attend hearings.
(Tr. 121). He had extensive experience, training, and certifications. (Tr.
121-122). He went to Bear Branch once a week, though he could not recall the
last time he was there before November 1, 2011. (Tr. 131-132). Creech was not
present when the citations were issued, he arrived later. (Tr. 132-133).

[10]
A root
ball occurs when timber is removed and the roots, medium-sized rocks and dirt,
remain and hang. (Tr. 24, 53). Root balls range in size from 5 to 100 pounds. (Tr.
54, 88-89).

[11]
Charles
Baker was present at hearing and testified. (Tr. 98). He had worked for
Respondent from 1997-2013 as a dozer operator and foreman. (Tr. 99, 238-239). In
that capacity he conducted pre-shift and on-shift examinations of highwalls,
berms, and dumping areas. (Tr. 101). Dangers included loose materials and hill
seams. (Tr. 101). He had extensive experience, training, and certifications. (Tr.
99-100, 241). There was no special certification for highwall examiner, but
regular training included instruction on highwalls. (Tr. 241-242).

[12]
An
excavator is a track backhoe, a mast, and a bucket. (Tr. 37). Stubblefield
believed the instant backhoe was a 335 Cat or something larger. (Tr. 37). It
could have reached out 30-35 feet with the bucket and rake back with the mast. (Tr.
31, 37).

[13] No issues were
discovered with the safety benches. (Tr. 204).

[14] Stubblefield was not sure if he went to the mine
between November 1 and November 19 and was not aware of any other inspectors
doing so. (Tr. 211).

[15] Ronald Sante
Smith was present at hearing and testified. (Tr. 216). At the hearing Smith was
employed as a blaster by Virginia Drilling. (Tr. 216-217). He had worked for
Respondent for four years and had extensive experience, training, and certifications.
(Tr. 217-218). This training included instruction on recognizing highwall
danger. (Tr. 229-230). Smith was trained as a foreman. (Tr. 230).

[16]
Hill seams
are natural fissure joints bedding plane in the rock that over a period of time
water seeps through. (Tr. 157). These seams can be full of mud unconsolidated
material. (Tr. 157). Hill seams cannot be removed, but loose rock in the seams
can be. (Tr. 169-170).

[17]
Acting
foremen, like regular foreman, needed mine foreman certification. (Tr.
185-186). The actual foreman would still need to sign the exam records. (Tr.
186).

[18] Hole are primed
by placing primers and caps together and dropping them in the holes. (Tr.
221-222). Then the bulk truck is used to load ammonia nitrate (“ANFO”) into the
bore holes up the level the blaster determines. (Tr. 222).

[19] 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

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On this page

Decision type

ALJ decision

Dockets

KENT 2012-749, KENT 2012-904, KENT 2012-1085

Decided

August 21, 2015

Presiding judge

John Kent Lewis

Outcome

Mixed result

Precedential status

Reviewed by the Commission

Cited standards

29 C.F.R. § 2700.30(b) 30 C.F.R. § 77.1001 30 C.F.R. § 77.1005(a) 30 C.F.R. § 77.1713(a) 30 C.F.R. § 100.3(b) 30 U.S.C. § 815(d) 30 U.S.C. § 820(i)

Official source

Read the official release (fmshrc.gov)

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