Hunter Sand & Gravel, LLC v. Secretary of Labor and Secretary of Labor v. Hunter Sand & Gravel, LLC

Read the official release (fmshrc.gov)

Plain-English summary

A Hunter Sand & Gravel dredge hand disappeared while taking a draft reading from a snow-covered barge on the Ohio River and was presumed to have fallen into the water and drowned. Judge David F. Barbour vacated the snow-removal citation because the Secretary did not prove that sanding, salting, or clearing the walkways was practicable before temperatures rose. He affirmed a changed-conditions task-training order with a $45,000 penalty and affirmed a workplace-examination citation with a $1,530 penalty. The judge also upheld a life-jacket violation but reduced negligence to moderate, deleted unwarrantable failure, and assessed $4,000; a separate safety-belt order was vacated by stipulation. Total penalties were $50,530.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.7(b), 56.11016, 56.15005, 56.15020, and 56.18002(a)
• Outcome: Two matters were vacated, two were affirmed, one was modified, and total penalties were $50,530.
• Key point: The record did not prove an immediate snow-clearing violation, but it established failures to train for changed winter conditions, enforce life-jacket protection, and examine the barge as a working place.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

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

HUNTER
SAND & GRAVEL, LLC,

Contestant,

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Respondent.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

HUNTER
SAND & GRAVEL, LLC,

Respondent.

CONTEST
PROCEEDINGS:

Docket
No. KENT 2014-391-RM

Citation
No. 8728537; 2/25/2014

Docket
No. KENT 2014-392-RM

Order
No. 8728538; 2/25/2014

Docket
No. KENT 2014-393-RM

Order
No. 8728539; 2/25/2014

Docket
No. KENT 2014-394-RM

Order
No. 8728540; 2/25/2014

Docket
No. KENT 2014-395-RM

Citation
No. 8728541; 2/25/2014

Mine:
Dredge IV

Mine
ID: 15-17687

CIVIL
PENALTY PROCEEDINGS:

Docket
No. KENT 2014-566-M

A.C.
No. 15-17687-350333

Docket
No. KENT 2015-75-M

A.C.
No. 15-17687-362767

Mine:
Dredge IV

DECISION AND
ORDER

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

Robert Nienhuis, Esq.; Elana Charles,
Esq., Goldstein and Price, L.C., St. Louis, Missouri for Respondent

Before:                                    Judge
Barbour

At the heart of
this case is an all but certain fatal accident that befell Dustin Burnham, an
employee of Hunter Sand and Gravel, LLC (“Hunter”), who in the early morning
hours of December 10, 2013, disappeared while working on a company dredge on
the Ohio River. Burnham is presumed to have fallen into the river and drowned,
but no one saw him fall. His body has not been found, nor have any of his
personal effects. He was twenty eight years old. He is survived by a wife and
two young children.

Burnham’s
disappearance was promptly reported by the company to the Secretary of Labor’s
Mine Safety and Health Administration (“MSHA”), which immediately sent
investigators to the scene. [1]
The investigators delved into the circumstances surrounding Burnham’s
disappearance and found Hunter in violation of several of the Secretary’s
standards for metal and nonmetal mines. As a result, one of the investigators
cited the company for five alleged violations in one citation issued pursuant
to section 104(a) of the Act, 30 U.S.C. § 814(a), one citation issued pursuant
to section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), and three orders issued
pursuant to section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1). In the section
104(a) citation the investigator found that the alleged violation was a
significant and substantial contribution to a mine safety hazard (an “S&S
violation”) and that the alleged violation was due to the company’s moderate
negligence. In the 104(d)(1) citation and the 104(d)(1) orders, the
investigator found that the alleged violations were S&S and were caused by
Hunter’s unwarrantable failure to comply with the cited standards. The
investigator further found that the company’s negligence was high. The company,
which filed timely contests of the citations and orders, challenged the alleged
violations and the investigator’s findings. Subsequently, the Secretary
proposed civil penalties, and when Hunter declined to pay the penalties, the
Secretary filed petitions requesting that the Commission assess the penalties
as proposed. The company answered the petitions by maintaining it did not
violate the standards, or, if it did, that the investigator’s findings were
erroneous and the proposed penalties were excessive.

After the
citations and orders were contested and the penalty petitions were filed, the
Commission’s Chief Judge assigned the cases to the court, which consolidated
them and directed counsels to confer to determine if they could resolve their
differences. When it became apparent they could not, a trial was held in
Paducah, Kentucky.

I.                   
STIPULATIONS

At the
commencement of the trial, and at the request of the court, counsel for the
Secretary read the parties’ stipulations into the record. Counsel for the
Secretary and Hunter agreed that:

1. Hunter . . . is
   an operator as defined in section 3(d) of the Act, 30 U.S.C. § 803(d);

2. Dredge IV[, the
   dredge on which Burnham last worked,] is a mine as that term is defined in
   section 3(h) of the Act, 30 U.S.C. § 803(h);

3. Dredge IV [is]
   used to extract sand from the Ohio River;

4. The principal
   office address for the Dredge IV mine is 1177 Clarksbury Road, Ledbetter,
   Kentucky 42058;

5. MSHA Inspector
   Sonia Conway was acting in her usual capacity as an authorized representative
   of the Secretary when the [subject] citations and orders . . . were issued;

6. Barge MEM 611[,
   the barge on which Burnham was last seen,] arrived at Dredge IV on December 9,
   2013[,] at 11:40 p.m.;

7. Nobody witnessed
   Dustin Burnham go into the water;

8. Mr. Burnham’s
   body was never recovered;

9. The Secretary
   will vacate Order No. 8728539[ [2] ];

10. Government
    Exhibit 19, the MSHA Proposed Assessment Form accurately sets forth the mine
    hours worked , 25,667, at Dredge IV . . . for 2012, . . . the total number of
    assessed violations for the 15 months preceding . . . [February 2014], the
    month the citations and orders were issued, [a]nd the total number of
    inspection days for the 15 months preceding . . . [February 2014];

11. Government
    Exhibit 5, the MSHA [Investigation] Report, is a true and accurate copy of the
    report compiled and completed by MSHA on the basis of information provided to
    MSHA by Hunter employee, Robert Stone, on the dates and times set forth therein
    and may be admitted into evidence as such;

12. Government
    Exhibit 6, the MSHA Mine Injury and Illness Report

7000-1[,] . . .
is a true and accurate copy of the form completed by Hunter employee, Robert
Stone, and may be admitted into evidence as such;

13. Government
    Exhibit 7, which consists of one page of the vessel log from the MV Patsy M[,
    the tug adjacent to Dredge IV on the night Burnham disappeared], dated December
    5 and December 9, 2013. is a true and accurate copy of the log maintained on
    the Patsy M. by Roger Fairfield and [by another Hunter employee] on the dates
    and times set forth therein and may be admitted into evidence as such;

14. Government
    Exhibit 20, drawings and schematics relating to the Dredge IV, contains
    depictions of the Dredge IV which are not to scale. Accordingly, it may be
    admitted into evidence only as a general configuration of Dredge IV and the
    arrangement of [the] various equipment on Dredge IV that it depicts.

Tr. 16-18.

II.                
THE
TESTIMONY

Edward Jewell

Edward (“Ed”)
Jewell has worked as an MSHA inspector for 16 or 17 years. At the time of
Burnham’s disappearance Jewell was working in the agency’s Franklin, Tennessee
field office in its metal/nonmetal division. Tr. 33, 89. Jewell inspects
underground metal/nonmetal mines, surface mines and some facilities such as
dredges that are not traditionally thought of as mines. Tr. 34. Although Jewell
testified that he usually inspects only one dredge a year (Tr. 90), he has
extensive prior experience and on-the-job training in inspecting dredges and
barges. Tr. 36-37. Most of the dredges with which Jewell is familiar extract
sand and gravel, just like Dredge IV. Id. Jewell began his testimony by
explaining how such dredges take sand from the floor of a river. The dredges:

have suction
devices – heads along the riverbeds. . . . .and basically [the devices] suck
[the sand] from the bottom. And [the sand] gets pumped up through the two pumps
on the dredge and it gets segregated with screens and chutes and [is
transferred by chutes] into barges. And from there, [the barges are] towed to a
plant . . . where . . . [the sand is] classified or segregated more.

Tr. 38; see also Tr. 39.

The dredge
operator is in charge of the dredging process and operates the suction devices,
the screens and the chutes from a designated operator’s station. Tr. 39-40. Miners
(“dredge hands”) are assigned different tasks on dredges. Some do maintenance
and repair work. Some do cleanup work and other needed tasks. When a tugboat
(“tug”) brings a barge alongside a dredge for loading a miner has to secure the
barge to the dredge. Once the barge is loaded it is released from the dredge
and towed to a plant facility or to another storage area where the sand is
offloaded. Tr. 40. After a full barge leaves the dredge, another empty barge is
towed to the dredge to be loaded.

Barges must be
loaded evenly. There are hash marks (“draft marks”) along the sides of a barge
that indicate if the barge is floating horizontally in the water. The marks
also show how much water the barge is displacing (the barge’s “draft”). Miners
on a dredge are sometimes asked to take a “draft reading,” which means they
must transfer to the barge, look at the numbers on the side of the barge and
report the numbers to the dredge operator who can then determine whether the
barge is level and the extent of its draft. Tr. 40-41.

Turning to the
events of December 9-10, 2103, Jewell testified that on December 10 at around
4:30 a.m. his supervisor called and told Jewell there was a report someone had
“[gone] into the water” at Hunter’s Ohio River operation. Tr. 58. The
supervisor asked Jewell to contact Robert Stone, Hunter’s manager of sales and
compliance, go to the facility, and open MSHA’s investigation of the apparent
accident. Id.

Jewell arrived
at the facility around 7:00 a.m. on December 10. Tr. 60. It was, he stated,
“very cold.” Tr. 59. It had snowed during the night. Id. In addition to
the snow, Jewell remembered that the Ohio River was “pretty wild[,] . . .
swift[,] . . . up . . [and] high.” Id. At the shoreline Jewell met Stone
and another Hunter official. Jewell asked some general questions regarding what
had happened and the state of the rescue and/or recovery operation. Hunter’s
officials then arranged for Jewell to be transported to the dredge. [3] Tr. 60.

Before traveling
to the dredge, Jewell spoke with a coworker of Dustin Burnham, the missing
miner. The coworker told Jewell that during the early morning of December 10 he
and Burnham “had come into the sample room [on the dredge] to warm up a bit. And
that [Burnham] was going to go and check the draft marks on the barge.” Tr. 74.
Jewell thought that taking a draft reading was one of Burnham’s regularly
assigned duties. [4]
After a short time in the sample room, Burnham told the co-worker he, Burnham,
was leaving to take the reading. It was the last communication anyone had with
Burnham. Tr. 78-79. Burnham disappeared sometime between 2:30 a.m. and 2:45
a.m. on December 10. Tr. 60.

Roger Fairfield,
the pilot of the tug boat that brought the barge to the dredge, was also among
those to whom Jewell spoke. Fairfield told Jewell that after the barge was
secured next to the dredge, he positioned the tug behind the dredge and the
barge. From the wheel house the pilot could see most of the decks of the dredge
and the barge. Jewell stated that Fairfield told him he looked down from the
wheel house and saw Burnham cross from the dredge to the barge and take a few
steps along the walkway toward the stern of the barge. Tr. 79. As Burnham began
to move toward the stern of the barge another vessel came upriver toward the
tug. Fairfield turned to see how close the vessel was to the tug. When he
looked back at the barge, he did not see Burnham. [5] According to Jewell, less
than a minute later the pilot saw “a light in the water and that’s when
[Fairfield] hollered on the [tug’s] radio[,] [‘]man overboard[’].” [6]
Tr. 86.

Turning again to
the details of the investigation, Jewell stated that although it felt like it
was below zero when he reached the dredge, the temperature could have been in
the 20s Fahrenheit. Tr. 97. In addition to inspecting the dredge, Jewell looked
at the adjacent MEM 611 barge. Tr. 64-65. Although he never set foot on the
barge, from his vantage point on the dredge Jewell noted a buildup of “snow and
frozen snow” on the deck of the barge. When asked why he did not transfer to
the barge, Jewell stated, “I didn’t want to slip and fall in the river myself.”
Tr. 61. He added, “I had a lot of clothes on. There’s not railings . . . all
the way around it. It’s a narrow path with a buildup of snow, frozen material. So
I didn’t see that I needed to [get on the barge].” Tr. 61-62. Jewell made his
observations of the barge around 7:30 a.m. Tr. 62. He took numerous photographs
of the dredge and the barge. Most of the photographs were taken between 7:30
a.m. and 9:00 a.m. on the morning of December 10. Tr. 62.

Jewell noted
draft marks at the bow and stern of the barge on both sides. The draft marks
were in four columns, one column at each end of the barge. The marks were
numbered one through nine. The numbered lines indicated the draft of the barge
and whether the barge was riding level in the water. [7]

Jewell also
testified that there was ice on the dredge, primarily in the screening area.
Tr. 95-96. As for the barge, uneven snow covered its walkways. Gov’t Exh. 2 at
7; Gov’t Exh. 20; Tr. 68. The snow also covered ropes and other items that lay
on the barge’s deck and walkways. Some of the items protruded up through the
snow. Gov’t Exh. 2 at 5; Gov’t Exh. 2 at 4, 5 and 21; Tr. 67-68, 72. Jewell
thought that there was probably ice under the snow, but he was not sure because
he never walked on the barge. Tr. 97-98. As a result, Jewell had no firsthand
experience as to what it was like to walk on the barge. Id. But Jewell
believed that others, besides Burnham, had walked on the barge because there
were several sets of footprints in the snow. Tr. 99.

In addition to
his observations about weather, the river and the conditions on the dredge and
barge, Jewell testified about the government’s training requirements for
miners. He described annual refresher training as general training and task
training as training that is “more specific to the job.” Tr. 42. In Jewell’s
view, if weather conditions change new task training is required. Tr. 102. Asked
why, Jewell stated, “Because mining conditions have changed and procedures have
to change.” Id.

In Jewell’s
opinion an operator is responsible for ensuring that its safety policies and
guidelines are readily available to miners and are enforced. Tr. 43. Jewell
stated that when he was a supervisor, he ensured compliance by “put[ting] boots
on the ground.” Tr. 43. He said, “I had to go out and physically look and see
if people were performing their task.” Tr. 44. If miners were not abiding by
safety rules or were engaging in unsafe procedures, Jewell spoke with the
miners and “tried to get them to change their habits.” Id. Jewell agreed
that “in terms of regular safety practices, [his] typical progression would be
first to counsel [an employee for unsafe practices and then to] remind the employee
of the safety rule and the safety requirement[.]” Tr. 93. While the most usual
course was to talk with the employee and remind him or her of the disregarded
safety requirement, suspension and ultimately termination could follow if the
employee proved to be a serial offender. Tr. 93-94

Jewell was not
MSHA’s lead investigator, Sonia Conway was. Jewell testified that between the
time he arrived at the facility and the time Conway arrived, conditions on the
dredge and barge changed. Tr. 82. Before Conway reached the facility company
officials informed Jewell that they wanted to use the dredge and barge as
staging areas for the continuing rescue and recovery effort. Jewell replied
that first the company “needed to do some cleanup and thaw out and secure the
scene so that no one else would possibly be in danger of . . . slick
conditions.” Tr. 82-83. When the temperature had risen above freezing Jewell
allowed the company to eliminate the ice on the dredge and the snow on the
barge by washing them off because, as Jewell put it, the decks of the dredge
and barge were “pretty treacherous . . . [and] slick . . . [a]nd [he] did not
want another accident [to] occur.” Id.

Jewell testified
that as part of the investigation he looked into the matter of whether or not
Burnham was wearing a life jacket when he disappeared. Jewell stated that he
asked one of Burnham’s coworkers if Burnham had a life jacket on before he
entered the dredge’s sample room. The employee stated that Burnham did. Jewell
then asked if the life jacket was assigned to Burnham. Tr. 84. The employee
stated that he was not sure. Id. Jewell saw a life jacket sitting on a
chair in the sample room. The jacket was next to Burnham’s lunch box. Jewell
photographed the chair, lunch box and life jacket. Gov’t Exh. 2 at 12. Jewell
stated that he could not determine if the life jacket in the photograph was the
jacket Burnham was wearing upon going into the sample room. Tr. 85. Jewell also
did not know if employees who worked on the dredge were required to leave their
life jackets on when they took breaks in the sample room. Id.

Jewell testified
that Conway arrived at the facility around 11:00 a.m. Tr. 86. Jewell met with
Conway and briefed her. He told her about the interviews he conducted and that
“Burnham had not been recovered, that he was missing [, and] . . . that
[Jewell] had . . . [allowed the dredge and barge to be] clean[ed] up for rescue
efforts.” Tr. 87. Jewell also introduced Conway to Stone and to another
management official. Tr. 87-88.

Sonia
Conway

Sonia Conway,
MSHA’s primary investigator, testified that her goal was “to get an overview of
what happened and . . . to narrow it down to . . . what caused or contributed
to the accident” so the agency could educate the public and prevent future accidents.
Tr. 108 – 109. Prior to the incident involving Burnham, Conway had investigated
four fatal accidents at different metal/nonmetal facilities. Tr. 101. Before
being employed by MSHA, Conway worked for 12 years as the safety director for a
construction company, a company that also operated quarries. She investigated
accidents for the company and she provided training, including new task
training, to the company’s miners. Tr. 111-13. Conway also conducted workplace
examinations. Tr. 113.

Conway testified
that on the morning of December 10, 2014, she received a call at her office in
Lexington, Kentucky. The person calling was an MSHA official who asked Conway
to go immediately to Hunter’s Ohio River facility because, “someone had fallen
into the water.” Tr. 117. Conway never had been to the facility. Id.

She arrived
around 11:00 a.m. on December 10 and found that the company was still searching
for Burnham. Tr. 132. She described the air temperature as “cold” and the water
temperature as 41 degrees Fahrenheit. Tr. 133. It was not snowing, but it had
snowed during the night. Id. Conway first met Jewell and reviewed the
information he had collected. She also looked at his photographs. Jewell
introduced her to Stone with whom she met. She then interviewed some of
Hunter’s miners. She asked them what was going on when Burnham disappeared. Tr.

137. She learned that he was last seen between 2:30 a.m. and 2:45 a.m. She also
     learned it was cold that night and the river was rising and moving swiftly. Tr.
     134.

The snow and/or
ice that had been on the barge was no longer present when Conway arrived, but
Conway remembered seeing sand in the barge’s hold. Tr. 135-36. The sand was
piled at the outboard side corner near the stern. Tr. 136, 138; Gov’t Exh. 20a.
She described the barge as “leaning away from the dredge at a pretty good
angle.” Tr. 136. The lean was caused by the sand being unevenly distributed. [8] Id.

According to
Conway, Eddie Henson, a deck hand on the dredge on the night of December 9-10,
told her that there was snow on the barge’s walkways that night. Tr. 144-45,

406. Conway also stated that tug pilot, Roger Fairfield, told her that company
     employees occasionally traveled along snow covered barge walkways (Tr. 147-48)
     and that they sometimes did so when they were assigned to take draft readings. Conway
     understood that after transferring to the MEM 611 barge, an employee who was
     asked to take a draft reading walked along the inboard walkway to the stern and
     then crossed the stern toward the outboard walkway. After reaching the outboard
     walkway above the draft marks, the employee grabbed the coaming [ [9] ] on the side
     of the barge, leaned out and down over the water and, if it was dark, shined
     the light from his or her cap lamp on the draft marks and, using a portable
     radio the employee carried, called the numbers to the dredge operator. [10]
     Tr. 162-64. Conway also was told that work assignments involving other tasks on
     the barge were common. The assignments involved collecting samples of the
     dredged material and tying up the barge. 173-74. In fact, she maintained that
     it was not unusual for miners to travel a barge’s walkways up to 30 times
     during the barge loading process. According to Conway, Burnham was not the only
     employee to use the walkways of the barge during the night he disappeared. She
     learned that prior to Burnham crossing to the barge, at least one other
     employee crossed from the dredge and walked on the walkways. Tr. 171.

With regard to
working on a dredge or barge when they were snow covered, Conway recalled that
Robert Douglas, the dredge foreman, told her the barge he loaded prior to
loading barge MEM 611 also was snow covered (Tr. 149), and he stated that he
was “used to” snow on barges and he did not think snow and/or ice on the barges
was a hazard. [11]
Tr. 149-50. In any event, Conway understood Douglas to be saying that “it was
not uncommon to get . . . the barges . . . with snow and/or ice on them.” Tr.

150. And Conway concluded that when snow covered barges had to be used by
     Hunter, the company’s attitude was “business as normal.” Tr. 151. Conway
     believed Hunter’s employees “didn’t appear to recognize the hazard of snow
     and/or ice on the walkways.” Id. When asked about her conclusion as to
     what had happened to Burnham, Conway answered that, “It appears . . . [Burnham]
     . . . slipped and fell into the water.” Tr. 152.

Conway explained
that after the investigation, a final report on the events was completed by
MSHA. Tr. 153; Gov’t Exh. 8. The report listed among the causes of the assumed
accident the failure of Hunter’s management to provide a safe working
environment for its employees. Conway summarized the report’s causal findings
as, “Specifically, the operator failed to identify the hazard of snow and ice
accumulation on the decking [of the barge]. Additionally, they [ sic. ]
failed to enforce the life jacket policy.” Tr. 156; see Gov’t Exh. 8 at
9-10

On February 25,
2014, and as the result of the investigation including her interviews with both
rank and file employees and management personnel, Conway issued the subject
citations and orders to the company. Tr. 165; 227-28, 267; Gov’t Exhs. 9, 15,

12. Asked if the enforcement actions were based on the assumption that Burnham
    slipped on the barge and fell into the water due to snow on the barge, Conway responded,
    “Not necessarily just the snow, no.” Tr. 264. However, she stated she believed
    the snow and/or ice on the walkway of the barge was “a contributing factor.”
    Tr. 170. Conway came to this conclusion from talking with Hunter’s employees
    and from looking at photographs taken by Jewell. Id.

Conway found
Hunter in violation of the standard requiring regularly used walkways to be
sanded, salted or cleared of snow and ice as soon as practicable. She stated
that even if only snow was present on the walkways (as opposed to snow and
ice), she would have issued a citation for the same alleged violation and with
the same findings (Tr. 268) because Hunter did not sand or salt the walkways of
the barge prior to Burnham’s disappearance. Id. Nor did Hunter clear the
snow from the walkways. Tr. 177. Conway stated; “[P]rior to putting someone in
harm’s way, [Hunter] should have cleaned, salted or sanded or found a different
way to get the draft readings so there wouldn’t be potential exposures to
hazards.” Id. Or, Hunter should have restricted access to the walkways. [12]
Tr. 178. Hunter’s failure to sand, salt or clear the walkways on the barge
subjected those traveling them to the hazards of slipping, tripping or falling. [13] Tr. 179. In
Conway’s opinion, Hunter’s employees “could easily slip and fall.” Tr. 180. But
Conway’s primary concern was that Burnham was sent to do a task under
conditions that caused his disappearance and presumed death. She stated, “With
the conditions that existed, the fact that [Burnham] was last seen on the
barge, and . . . the way the barge was tilted, we came to the conclusion that
he slipped off of [the barge] due to the ice . . . and/or snow.” Tr. 181-82.

Conway
emphasized that it was not just Burnham who was endangered. Through her
interviews with others she determined some employees lacked proper training and
that some were subject to the same hazards as Burnham. Tr. 266. As she put it,
they faced “the same . . . slip, trip and/or fall hazard into the water.” Tr.
182.

Conway thought
that given the conditions it was reasonably likely an employee would fall into
the water. “The fact that [the employees were] working at nighttime, the fact
that [the barge’s walkway was] a regularly used travelway and [that the
walkway] was in that [snow covered] condition [and] that the miners would be
expected to travel it” contributed to the likelihood Tr. 183. Further, when an
employee fell into the water Conway expected the employee would suffer a “very,
very serious injury and more than likely a fatality based on the river and cold
temperatures.” [14]
Tr. 184.

Conway was asked
by the Secretary’s counsel why she found Hunter’s negligence to be “high,” and
she answered that in speaking with Hunter’s employees:

[T]hey didn’t
believe snow and ice accumulation[s] were hazardous. They had not been
instructed to remove or sand or salt snow and/or ice prior to traveling [on the
barge] and there were no restriction[s]. Nobody had restricted access to that
area. And to my knowledge there was no policy on prior to walking on a barge
that had snow and/or ice, that they were supposed to . . . clean it or sand it
or salt it.

Tr. 186.

In sum, Conway
believed no effort was made by Hunter to clear the barge’s walkways of snow
and/or ice. Tr. 186-87. She stated that it was “common” for Hunter’s employees
to walk on snow and/or ice, and none of the employees to whom Conway talked
told her they were instructed to remove snow and/or ice from a barge. Tr.
187-88. In Conway’s opinion Douglas, the foreman of the crew of which Burnham was
a part, was particularly culpable. A reasonably prudent person would have
“recognized the hazard and addressed it.” Tr. 244. In addition, she felt that
Douglas’s supervisors had “reason to know.” Id.

Further, she
believed that the alleged violation was due to the company’s unwarrantable
failure because, “[I]t was obvious. It was extensive. It ha[d] existed not only
on . . . [the subject] barge . . . [but] on the barge prior to, [and in
addition a] person in the supervisory position [ i.e. , Douglas] . . . saw
it.” [15]
Tr. 245.

Conway also
issued a citation to Hunter for its failure to task train employees on “what
was going to make [the employees] slip or fall.” Tr. 188. She believed that
Hunter “failed to provide safe work procedures that addressed snow and ice
accumulation on deck surfaces and the additional risk it poses.” Tr. 188-89; see
Gov’t Exh. 15. She stated,

I issued the
[c]itation because when . . . Burnham and possibly other miners went through
the task training, the conditions changed after they went through the training
. . . . And I was given no [indication] that . . . [the employees], as a part
of their training, received additional training to recognize those conditions .
. . and the . . . hazard associated with . . . [the conditions] while performing
their task.

Tr. 152.

Conway
maintained if an employee is assigned a new task or a task that creates new
hazards and he or she has not been trained in how to avoid the hazards, then,
new task training is required. [16]
Tr. 257. She testified that whether or not new task training is required
“depend[s] on if there are hazards . . . . Did the weather create a different
hazard than what they had been trained and exposed to?” Tr. 257. If so,
employees needed new training. Id.

Conway agreed
that Burnham initially was given adequate new miner and task training. Tr. 191.
However, she maintained that when the conditions changed and Burnham’s job
required him to take draft readings in the presence of accumulated snow and/or
ice, “[T]he task training should have been revised in order to train him on how
to deal with the snow and/or ice on [the barge] walkways.” Id. , see
also Tr. 195. Conway noted that 30 C.F.R. § 47.7(b) states, “If a change
occurs in a miner’s assigned task that affects the . . . safety risks
encountered by the miner . . . [the operator] must provide the miner with
[task] training . . . that addresses the change.”

In Conway’s view
task training is not the same as annual refresher training or new miner
training. Unlike annual refresher training and new miner training which cover
numerous topics, task training requires the operator to ensure its employee is
trained “in the specific task that [the employee] is expected to conduct.” Tr.

192. The training must be such that the employee “will demonstrate proficiency
     in [the] particular task.” Tr. 193. In Conway’s opinion, new task training
     applies to “[a]ny task [an employee is] asked to perform that [the employee]
     has not done in the past for the operator.” Tr. 194. Conway emphasized again
     and again that even if the employee has previously performed the task, “if
     conditions change” or if the operator sees the employee doing the task in an
     unsafe manner, task training must be given again. Id. Conway believed
     Hunter’s employees were not taking draft readings in a safe manner when snow
     and/or ice was present on barge walkways. In her view, Hunter either knew or
     should have known this and should have trained the employees on the dredge in
     hazard recognition associated with job performance. Tr. 195, 196. In short,
     Hunter should have retrained all of the dredge employees, including Burnham,
     because the dredge employees “did not seem to recognize the hazard of walking
     on the snow and ice while on the barge.” Tr. 195.

Conway testified
that the failure to task train the employees to recognize the hazards
associated with winter weather conditions created the danger that the employees
would slip and fall from the barge while performing their draft reading tasks.
Tr. 197. From her interviews with miners, Conway concluded the company simply
“did not recognize the hazard.” Tr. 245. Hunter’s employees with whom she spoke
had a “lack of knowledge on how to deal with the snow and/or ice on the
walkways.” Tr. 199. The employees should have been instructed in how to take a
draft reading in the presence of snow and/or ice in a way that did not subject
them to a slip and fall hazard. Or, if there was not a hazard free way to
perform the task in the presence of the snow and/or ice, the employees should
have been trained how to ameliorate the hazard before they began the process of
taking the reading. [17]
Id. As she put it, “[e]ither don’t expose yourself [to the hazards] or
address the hazards that are there prior to performing . . . the task[.]” Id.
In Conway’s view, the fact that Burnham was not trained in how to properly take
a draft reading in the presence of snow and/or ice directly contributed to or
caused the accident that befell him. Tr. 198. She noted that the same hazards
apply to taking samples of dredged material since taking samples, like taking
draft readings, requires an employee to use the barge’s walkways. Tr. 200-01.

Conway found
that the company was highly negligent. She stated, “They didn’t instruct the
[employees] to clear sand, [or] salt the snow and ice prior to traveling those
areas.” Tr. 201. Conway maintained that when she showed management officials
pictures of snow and/or ice on the barge walkways, “[S]ome of the management
said yes, it was a hazard. Others said no, it was not.” Id. She
described the company’s position as “conflicted.” Id. However, Conway
was certain that Hunter’s employees were not told to clean snow and/or ice from
barges. Tr. 203. She also was certain that Hunter made no effort to new task
train miners in safe ways to work in the presence of snow and/or ice. Id.
Management officials should have been aware of the requirement to provide task
training, “if there’s a change in conditions.” Id. She added, “And
[based on] the fact that they operated in winter months, and some of these
[employees] were hired . . . [in] warmer months, when the conditions changed, I
would think that . . . [Hunter’s officials] would revisit the task training.” Id.

As a result of
her investigation Conway also issued a citation to Hunter for its failure to
include the MEM 611 barge in its workplace examinations. Tr. 208. Although a
workplace examination was conducted on the shift during which Burnham
disappeared and on all other working shifts as well, barges were not included
in the examinations. Tr. 208-09. Conway stated that the purpose of a workplace
examination is “to identify hazards that potentially contribute or cause an
injury and to address those hazards promptly.” Tr. 209. She added that if the
hazards cannot be addressed in a timely fashion, [the operator should] restrict
access . . . to prevent potential exposure to the hazards.” Id. The
operator is required “to do something to eliminate the hazard promptly.” Tr.
209-10. In Conway’s view, the condition of the walkways on the MEM 611 barge
presented a hazard that should have been, but was not recognized, reported and
corrected. Tr. 210. According to Conway, Hunter’s management “did not appear to
understand that the barge walkways in that condition [ i.e. , covered with
snow and/or ice] created a hazard.” Id. The hazard was one of slipping,
tripping and falling, a hazard that Conway believed was reasonably likely to
occur and a hazard that she believed was reasonably likely to result in a
serious injury or a fatality. [18]
In fact, Conway concluded the hazard was a “contributing factor to [Burnham]
falling into the water.” Tr. 211. Had Hunter complied with the standard, it
would have restricted access to the barge walkways or it would have eliminated
the hazard and thus eliminated the likelihood of an employee slipping or
tripping on the barge walkways. Id.

Conway also
testified that she issued an order to Hunter because she concluded employees
did not wear life jackets when exposed to the hazards of falling into the
water. Tr. 211-12; Gov’t Exh. 12. Conway stated that she believed Burnham was
not wearing a life jacket when he transferred from the dredge to the barge
because the life jacket she thought was Burnham’s was sitting on a chair near
his lunch box and because “no one saw [Burnham] floating.” [19] Tr. 215-16.

Prior to
disappearing Burnham was in the breakroom. Tr. 216. Conway was told that miners
often took off their life jackets when in the breakroom. Id. Conway
acknowledged that in addition to the life jacket sitting near the lunch box,
other life jackets were available in the breakroom. Tr. 232, 267.

Conway
calculated to be dragged down while wearing the kind of life jacket assigned to
Burnham, a person would have to weigh 350 pounds. Tr. 219. Therefore, Conway
believed if Burnham had worn a life jacket he would have floated, and no one
saw Burnham floating. [20]
Tr. 267. Although Hunter assigned life jackets to miners and typically miners
wore the life jackets they were assigned, Conway admitted that she could not
determine with certainty if a life jacket was missing because there were extra
life jackets on the dredge. Tr. 219-20.

Conway did not
review the company’s records to determine if Hunter enforced its life jacket
requirement through discipline. [21]
Id. However, she saw nothing that led her to believe Hunter ever had
taken disciplinary action against a miner for failing to wear a life jacket
despite the fact she was told that Hunter officials were aware employees at
times did not wear them. [22]
Tr. 221-22.

While life
jackets were required to be worn by the company whenever there was a danger of
falling into the water, if a management official saw a miner without a life
jacket the miner was given a hand signal to put one on. [23] Tr. 236-37. However,
based on the interviews she conducted and on the fact that Burnham was not
found, she concluded that Hunter failed to effectively enforce its life jacket
policy. Tr. 225. Conway testified that a non-compliant employee was likely to
drown if he or she fell into the river. Tr. 222.

In addition, she
found that the company was highly negligent. Management officials were aware
that at times employees did not wear life jackets, yet Hunter did not
discipline those employees. Tr. 226. As Conway put it, “[E]nforcement was very
lax.” Id.

Despite her
belief that the company did not effectively enforce its policy, Conway
acknowledged that when she interviewed Fairfield he told her that “most times”
when he saw employees on the company’s dredges they were wearing life jackets.
Tr. 231. Conway also agreed that when she spoke with miner Eddie Henson
who worked on the dredge the night Burnham disappeared, Henson stated that he,
himself, was wearing a life jacket and that when she asked Henson if he ever
saw Burnham on the dredge without a lifejacket, Henson said, “No.” Tr. 228-30. Further,
she admitted that in her contemporaneous notes she made no reference to the
company failure to enforce its life jacket rule. Tr. 231. Finally, when Conway
asked Story, a deck hand on the Patsy M, if he knew of employees not wearing
life jackets, she recalled him saying that employees must wear life jackets if
they are in places where there was a danger of falling into the water. Tr. 236.

Robert Stone

Robert Stone is
Hunter’s manager for sales and compliance. He markets Hunter’s products and
interfaces with government regulatory agencies, including MSHA. Tr. 301. Stone
is also responsible for health and safety training, including the training of
new employees and the annual refresher training of all employees. Further, he
reviews the company’s task training and its hazard recognition training. Tr.

302. Stone has worked for Hunter since September 2010. Prior to that, he worked
     as the general manager for Irving Materials, Inc. (“IMI”), the previous owner
     of Hunter’s various facilities. Tr. 302-03. Stone had the same responsibilities
     when he worked for IMI as he has for Hunter. Tr. 303. Stone also has extensive
     experience with other mining companies. He began training miners when he worked
     for those companies and when he started working for IMI he was responsible for
     initiating IMI’s miner training programs. Id. All told, Stone has worked
     at Hunter’s various locations, including its dredges, for 19 years, and for
     most of that time he has been responsible for providing new miner training to
     employees. Tr. 304.

Stone described
Hunter’s new miner training:

When a decision
is made to hire . . . a new individual, the first . . . day is spent with me. I’m
given [a new individual’s] application and I review that application and make a
determination on the type of training that . . . [person is] going to be
required to receive. And then I spend eight hours talking to [the individual]
about introduction to the workplace and

about . . . our
training plan and [I follow] through with the requirements of our training
plan. I try to meet the minimums in that eight, nine hour period, and then I
prepare the forms [that are] sent with the individual when [he or she goes] out
to the jobsite so that a competent person can complete the training.

Tr. 304-305. Job site training (also
known as “task training”) can take up to a year as employees work through each
of the tasks their jobs require. [24]
Tr. 305-06.

Stone was asked
if Hunter provided inclement weather training to workers on its dredges and
vessels including barges. Stone explained that training to work in adverse
weather is “included in the indoctrination training.” Tr. 306. He stated, “I
have a set pattern that I use to go through the indoctrination training. And it
includes lectures, it includes films and it includes demonstrations. And
several of [the] demonstrations include caveats for inclement weather.” Tr.
306-307. Stone stated:

My position is
that an employee’s not fully trained until they cycle through a whole year. And
a whole year involv[ing] changing of weather conditions but also the cycle of
the river conditions. So my position is that people . . . aren’t completed in
[their] training until they go through the whole river cycle. So yes, we talk
to them or ask our people to talk to them about these changes. In the
indoctrination training I make a point to tell people that their work
environment is never the same two days in a row. And I allude to changes in the
river conditions and the weather conditions that can affect their job
environment.

Tr. 331-32. He added, “We talk about
snow, we talk about ice, but we also talk about fog and we talk about high
winds [and] lightning.” Tr. 307. Although snow and ice “may not be a line item
noted on our task forms . . . it’s talked about” during an employee’s
indoctrination training. Tr. 307. He stated, “[T]he information that I provide
in the indoctrination training . . . warns people about snow and ice
conditions. [The training] warns people to move slowly, to move deliberately,
to walk flat footed, [and to] take short steps.” Tr. 307; see also Tr.
390.

During
indoctrination training Stone testified he also shows a 28 minute film on
working in a marine environment. He stated, “and there’s excerpts in [the film]
about inclement weather.” Tr. 334. The film is titled, “Slips, Trips and Falls:
Don’t Let It Get You Down.” 334-35. According to Stone, “There are scenes of
towing vessels in wintertime with ice and snow on decks. And there’s counseling
in the film about walking flat-footed, walking deliberately. And there’s also
special precaution given about when you come from outside back inside the boat,
[where] ice and snow on shoes can cause falls in the interior.” Tr. 335. The
training in the film is intended for those working on Hunter’s dredges. Id.

Burnham applied
to work for Hunter on June 11, 2014, but he was not hired until October. Tr.
320; Hunter Exh. 4. Prior to being hired by Hunter, Burnham worked for Calver
City Terminal (“Calver City”), a firm that transloads coal from railcars to
barges. Tr. 322. Prior to working for Calver City Burnham worked for Marquette
Transportation, where he was responsible for the crew that put barges together
as units to be towed. He also did maintenance work on and around boats. Tr.
322-23. Marquette Transportation is a river towing company that operates large
tow boats year-round along the Ohio and Mississippi rivers. Tr. 323. Prior to
working for Marquette Transportation he worked for United Barge Line
(“United”), another company that tows barges year-round on inland rivers. Tr.

324. For United he put barges together as units and did boat maintenance work,
     just as he did for Marquette Transportation. Id. Finally, before United,
     Burnham worked as a deckhand for Tennessee Valley Towing. Tr. 325. All told,
     before coming to Hunter, Burnham had approximately five years of experience
     working year-round on tow boats and barges. Tr. 326. However, he only had three
     months of MSHA- related experience. Tr. 383. Stone agreed that Marquette Transportation,
     United Barge, and Tennessee Valley Towing would not have given MSHA training to
     Burnham. Tr. 384.

Burnham signed
his new employee training form on October 22. Tr. 334; Hunter Exh. 10. Burnham’s
on-the-job new miner training was given by Robert Douglas, Burnham’s
supervisor. It occurred between October 28 and November 7. Tr. 331, 385; Hunter
Exh. 9. Training for the dredge was given to Burnham by Robert Douglas on
October 28, and the training form was signed by Stone on November 11. Tr. 348;
Hunter Exh. 13. The dredge training included the need to be alert for tripping
hazards and to use extreme caution near the dredge’s edges. Tr. 338; Hunter
Exh. 11.

Burnham also
received experienced miner training. According to Stone, during that training,
issues relating to working in winter conditions were covered, including working
when snow or ice was present on the barge. Tr. 349-50; Hunter Exh. 14. Moreover,
Burnham received newly employed experienced miner training when he worked for
Southern Coal Handling (“SCH”) before coming to work for Hunter. [25] Tr. 343;
Hunter Exh. 12. Further, at Hunter, he received new task training. This
included the specific tasks involved in working with a barge when it was towed
to a dredge, for example, properly positioning a barge that was to be loaded.
Tr. 352; Hunter Exh. 15. Stone was asked whether Hunter provided new training
for specific tasks every time there was a change in weather conditions, and
Stone replied, “We do not.” Tr. 352. He added that while Hunter’s trainers talk
to miners new to various jobs about the hazards posed by snow, ice, fog, and
lightening, “It would be terribly onerous to document every different
condition.” Tr. 353.

Regarding the
presence of snow and/or ice on working surfaces, Stone maintained that “a lot”
of the training films emphasize “that you try to abate the [snow and ice]
condition by removing the ice and snow, putting some sort of a deicing agent
down.” Tr. 308. The recommended deicing agents are salt or sand, and Stone
added, “[W]e use sand wherever possible.” [26]
Id. Stone thought it was a good practice to use sand on iced-over
walkways. Tr. 393-94. Further, during annual refresher training, training that
Burnham would have received had he not disappeared, the need to take note of
icy surfaces would have been emphasized. Tr. 378; Hunter Exh. 19. Stone agreed,
however, that Hunter’s training while recommending caution to miners did not
require them to salt or sand icy and/or snow covered surfaces. Tr. 398.

According to
Stone, the company’s policy with regard to working in snow conditions “depend[s]
on the conditions.” Tr. 308.

If there is a
circumstance where we’re going to get a little sunlight, for example, [we will]
take a hose and wash [the snow and/or ice] off, because the sun on the metal
deck . . . [of the] barge structure . . . will actually dry off [the water],
and that [was] apparent after [the] MEM 611 was cleaned that morning. But
overnight it’s safer to walk in the snow because any water you put on at that
time is simply going to freeze and reduce the snow to ice.

Tr. 308-09; see also Tr. 396.

Therefore, in
Stone’s view, whether or not to hose down snow with water depends on the
temperature. For example, if the temperature is in the mid-twenties
(Fahrenheit), Stone believed, “if you wash a deck down, you’re simply going to
[exacerbate] the condition and it’s going to turn to ice. And it would be a
greater hazard than walking on snow.” Tr. 310. In fact, temperatures during the
evening and night of December 9 and 10 were in the mid to high twenties
Fahrenheit. Tr. 327-28; Gov’t Exhs. 7, 8. There also was a light snow fall,
which continued into the early morning after Burnham disappeared. [27] Tr. 329-30.

Stone also
testified concerning the company’s policy regarding the wearing of life
jackets, to wit, “that life jackets are to be worn at any time the potential
exists for [an] individual to fall [into] the water.” Tr. 310, see also
Tr. 313. The policy is explained to employees during indoctrination training. It
is reinforced during site hazard training, and it is emphasized in site specific
training for the dredge. [28]
Tr. 338; Hunter Exh. 11. In addition, Stone testified that he showed a film
entitled “Minutes To Live” at all of Hunter’s job sites. The film emphasized
the wearing of life jackets and “how to survive falling in the river.” [29] Tr. 339.

Stone recalled
that in addition to being highlighted during training, the company’s life
jacket policy is reviewed when the company experiences a “stand down
situation.” [30]
Tr. 310. However, Stone noted that even if an employee is wearing a life jacket,
if he or she falls overboard the employee may not survive. [31] Tr. 340.

According to
Stone, the company’s lifejacket rule is enforced by management and by rank and
file employees. Both remind non-compliant employees by gesture (hands to
shoulders) to put on missing life jackets. Id. , Tr. 313 . The
policy is also enforced through Stone’s unannounced “mock inspections.” Tr.

313. Stone maintained that he conducts such inspections on a quarterly basis
     and that he has never noticed an employee who should be wearing a life jacket
     without one. Id. Stone stated that there never has been an instance
     where an employee “blatantly” failed to comply with the company’s life jacket
     policy and therefore he never disciplined a miner in writing for noncompliance.
     Tr. 314. (“I have not written a citation for [non]compliance with the life
     jacket rule. I’ve always been able to do it with a simple . . . reminder.” Id. )

Stone also
testified that wearing life jackets when in danger of falling into the water is
a topic that is raised during annual refresher training in February when boat
crew concerns are discussed. Employees are reminded to always wear a life
jacket when on a boat. Tr. 367-368, 370; Hunter Exh. 18. They are also reminded
to always wear a life jacket on the deck of a barge, to watch for tripping
hazards on the barge, to be extremely cautions of wet or icy deck surfaces, to
move slowly and deliberately, to use sand or salt to lessen the hazard of
slipping and to warn others of any hazardous conditions. Tr. 370, 372; Hunter
Exh. 18. Three of the five members of the crew of the Dredge IV were employed
by Hunter in February 2013, and they received annual refresher training. Tr.
369-70. During the training slip and trip hazards were emphasized as a reason
for falling overboard (Tr. 375), and even though Burnham missed the training, a
“good portion” of the subject matter was provided to Burnham during his
training in October 2013, including the company’s emphasis on complying with
its life jacket policy. Tr. 376-77

Stone confirmed
that while the life jacket policy is always in effect on the deck of the
dredge, it is not in effect in the break room, the control room, or the engine
room of the dredge because there is no danger of falling into the water while
in those rooms Tr. 312. He also stated that usually there are extra life
jackets on the dredge. Tr. 316.  

Stone was asked
about the length of Burnham’s shift on December 9 and 10, and he testified it
was a twelve hour shift beginning at 6:00 p.m. on December 9 and ending at 6:00
a.m. on December 10. Tr. 317-318. According to Stone the preshift examination
form for the crew boat that took the miners who worked on Burnham’s shift to
the dredge indicates there was at least one lifejacket for each person working
on Burnham’s crew that morning. Tr. 318; 381-82; Hunter Exh. 3.

Rodney
Story

Rodney Story, a
Hunter employee, has worked for the company for eight years. At the time of the
hearing he was 42 years old. Tr. 417. In December 2013 Story was a deck hand on
the Patsy M. Tr. 417-18. As a deck hand Story also occasionally worked and
traveled on barges. Tr. 418. Story testified that he worked the night shift on
December 9 – 10, 2013. During the shift Roger Fairfield piloted the Patsy M.
Tr. 419. Close to midnight on December 9 the Patsy M. picked up the MEM 611
barge and towed it to Dredge IV. Tr. 420. The barge was empty, and it was
riding high in the water. Id. In the course of the operation Story
testified that he walked on the stern deck of the barge and along its sides. According
to Story, there was snow on the deck, but no ice. Id. Story had no
trouble walking on the snow. Tr. 421, 449. Story connected cable from the Patsy
M. to fittings at the stern end of the barge and then walked down the side of
the barge to the barge’s bow to disconnect the barge from the other barges to
which it was still cabled. Tr. 421-22. Although there was snow on the side
walkway, just as there was on the stern, Story had no difficulty walking. He
took draft readings at all four corners of the barge. Tr. 426. He further
testified that he could hold onto the coaming as he walked along the side. Id.
The towing operation began, and when the Patsy M and the MEM 611 barge reached
Dredge IV it was shortly before midnight on December 9. Tr. 438. Story then
transferred back to the deck of the MEM 611 barge and helped secure the barge
to the dredge. Again, he maintained that he had no problem walking on the
barge’s deck and that he had “sure footing.” Tr. 427. He agreed, however, that
when walking on snow on the deck he had to be cautious and pay attention. Tr.
428.

With regard to
the wearing of life jackets, Story described Hunter’s policy as requiring
employees to, “Always wear one buckled up when there’s a potential to fall in
the water.” Tr. 429, see also Tr. 481. As far as Story knew, this had
been the policy ever since Hunter acquired the company from IMI. Story believed
that the policy was standard in the industry. Id. The policy is enforced
by “everybody watch[ing] one another.” Id.

Although Story
wore his life jacket all of the time (Tr. 430), he acknowledged other employees
sometimes did not. “From time to time they were all guilty, but we always made
sure, hey, go put it on.” Id . While he had seen “some” employees walking
around a dredge or barge without life jackets, he believed their failure was,
“mainly just out of accident.” Tr. 445. He was not aware of anyone ever being
disciplined for failing to wear a life jacket. Tr. 445-46. Story also
acknowledged that working as a deckhand is hazardous and that unfavorable
weather conditions (wind and snow) and high water can make falling overboard
more likely. Tr. 443-44

During his
testimony Story recounted the events surrounding Burnham’s disappearance. At
some point during the early morning hours of December 10 while Story was in the
galley of the Patsy M, he remembered hearing Fairfield give a “man overboard”
call over the tug’s radio. Tr. 431. Story rushed out of the galley to unmoor
the Patsy M. so she could engage in rescue efforts. Tr. 431-32. Story stood in
the bow of the tug as it backed away from the barge and turned downriver. Tr.
432-33. As the boat turned Story saw a light in the water. Tr. 433. Both the
Patsy M. and the light were moving downriver, but the boat was moving faster,
gaining on the light. Story stated, “When we got closer to the light, I didn’t
see . . . any movement or know who it was or anything.” Tr. 433-34. Story
added, “[W]e continued . . . to get close to the light so I could actually get
ahold of whoever it was just to try to get them stable to the boat so maybe we
could get some assistance to drag the victim . . . up[.]” Tr. 434. Even though
lights on the boat illuminated the area, all Story could see at first in the
water was the light and then he saw what he thought was a portion of arm from
the elbow to the shoulder. [32]
Tr. 436. The Patsy M. continued to gain on the light and it got within 15 to 20
feet when “the light went out of sight and nothing was seen after that.” Tr.

437. The Patsy M. moved further downstream. Management was notified and the
     search continued, but to no avail. Id.

Roger
Fairfield

Roger Fairfield
is the 44 year old pilot of the Patsy M. He has worked for Hunter since the
company acquired the business. Tr. 451-53. Prior to that, he worked for IMI as
a dredge operator. Tr. 451-52. He worked in the latter capacity for seven or
eight years, and before that he worked as a deck hand. Tr. 453.

Fairfield
testified that he was piloting the Patsy M. on the night of December 9 and 10.
Tr. 453-54. Around midnight Fairfield picked up an empty barge (the MEM 611)
and towed it to Dredge IV. Tr. 455. The deckhand, Rodney Story, had to walk on
the barge’s deck to uncable the MEM 611 from other empty barges so it could be
towed. Tr. 456-57. According to Fairfield, snow covered the deck of the barge,
and Story walked on the snow to secure the cables. Fairfield testified that
Story, who walked on the port side from the stern up to the bow of the barge
and back again, had no trouble. Tr. 456-58. Fairfield was not surprised
by this because, he maintained, the snow provided “more traction.” Id. He
added, “If you’re walking on ice you pretty well got to kind of baby step it
and hold on real tight. With snow you just seem like you get a whole lot better
traction[.]” Tr. 456-57. Fairfield did not consider the snow to be a hazard,
and he had never been taught in his training that it was a hazard. [33] Tr. 482.

If there had
been ice on the barge Fairfield maintained that the situation would have been
“a lot different.” Tr. 458. He stated that with ice, “you just slip, slide. You[‘ve]
got to really hold on . . . [a]nd baby step it, just kind of keep your
balance.” Tr. 458. According to Fairfield, if there is ice on the deck of a
barge Hunter’s practice is to put sand on the ice. The sand is usually kept on
the dredge. Id . He stated the sand is a “non-skid” that “kind of keep[s]
you from sliding.” Tr. 458-59. Fairfield did not know of any environmental
concerns preventing the use of sand on ice, and he stated Hunter uses sand
“because we got plenty of it.” Id. However, Fairfield maintained that he
never put sand or ice melt on snow. Tr. 458, 480. In his opinion doing that
would “just pack [the snow] down.” Tr. 459. Also, he believed washing off snow
could be dangerous. He stated,”[I]f you wash it off, it’s just a matter of
seconds before it’s going to be iced right back up.” Tr. 481.

As for Hunter’s
lifejacket policy, Fairfield stated, “It’s policy and everybody knows it and
it’s preached a lot.” Tr. 460. If there is any chance of falling into the
river, an employee must wear a life jacket. Id. The rule is discussed at
both the company’s weekly safety meetings (tailgate meetings) and at MSHA
refresher training. Id. , Tr. 461. In addition, there are other times
when the rule is talked about. Tr. 460. He stated that he never has seen anyone
working outside a room on the dredge or on a barge without a life jacket. Id. ;
Tr. 483. He knows of no employee who has been “written up” for failing to wear
a life jacket or for wearing one but not properly fastening it. Tr. 485.

When the Patsy
M. reached the dredge, Story walked onto the stern of the MEM 611 to moor it to
the Dredge IV. The dredge then began loading the empty barge with sand. Fairfield,
who was in the wheelhouse of the Patsy M., was looking down at Story as he
moved about the barge and returned to the dredge. Story had no trouble walking.
Tr. 465-66.

There are
movable steps on the dredge which are used to provide access to the barge. Because
an empty barge rides higher than a dredge, the steps are needed to get onto the
deck of the barge. Tr. 467. On December 10 the steps were placed about 25 to 30
feet from the stern of the barge on the barge’s port side. Id., 467. The
Patsy M. was facing the stern of the barge. Fairfield, looking from the
wheelhouse, noticed Burnham as he mounted the steps and crossed from the dredge
to the barge. [34]
Fairfield testified he could only see the top part of Burnham’s body. He could
not determine if Burnham was wearing a life jacket. Tr. 471. As he looked down
on Burnham, Fairfield heard a radio communication from another boat that was
coming up river behind the Patsy M. Fairfield swung around in his chair to see
how close the boat was to the Patsy M. Tr. 473. (She was approximately three
fourths of a mile downriver. Id. ) Fairfield continued:

[A]fter I turned
[back] around . . . I kind of looked down and I couldn’t see [Burnham]. I
thought . . . maybe he’s kind of hunched down over on the starboard side maybe
checking the draft or something. That’s when I stood up and really started
looking. Then I didn’t see him, and that’s when I got turned back around. And
when I turned all the way around, then that’s when I see a light going across
the stern . . . in the water.

Tr. 474.

Fairfield was
sure the light was from a headlamp. Tr. 478. It was tantalizingly close, five
to ten feet away, but moving downriver fast. Fairfield saw no motion. Tr. 475. He
placed a “man overboard” call on the radio. Tr. 475. At that point, the light
was significantly further down river. Story unmoored the Patsy M., and it
motored toward the light. When it got approximately 20 feet from the light --
about 400 to 500 feet from Dredge IV – Fairfield could “see the light go down
underneath the water.” Tr. 476. Fairfield testified he also observed an
“orangeish” or reddish color that could have been a lifejacket or a coat; he
wasn’t sure. Tr. 477.

III.             
THE
ISSUES

The
principal issues are whether the alleged violations existed. If so, what was
their gravity? Were they S&S? Were they the result of Hunter’s
unwarrantable failure and negligence? And if the violations existed what are
the amounts of the civil penalties that must be assessed for the violations,
taking into account the statutory civil penalty criteria? 30 U.S.C. § 820(i).

IV.             
THE
ALLEGED VIOLATIONS AND THE COURT’S FINDINGS

CITATION NO.                     DATE              30
C.F.R. §                  PROPOSED PENALTY

8728537                               2/25/14            56.11016                         
 $70,000

THE VIOLATION

The citation was
issued pursuant to section 104(d)(1) of the Act. 30 U.S.C. § 814(d)(1). The
citation contains Inspector Conway’s findings that the alleged violation of
section 56.11016 could reasonably be expected to cause a fatal injury, was
S&S and was due to Hunter’s unwarrantable failure and high negligence. The
citation states:

On December 10,
2013, a fatal accident occurred at this dredge operation. A dredge hand walked
onto the snow and ice covered deck of the barge to obtain a draft reading. The
victim slipped and fell into the water. The mine operator was aware the deck of
the barge was covered with snow and ice. However management did not take action
to sand, salt, or clear the barge deck’s regularly used walkway of snow and
ice. The mine operator engaged in aggravated conduct constituting more than
ordinary negligence in that management had been made aware of the snow and ice
hazard and failed to take corrective action. This violation is an unwarrantable
failure to comply with a mandatory standard.[ [35]
]

Gov’t Exh. 9 at 1.

Section 56.11016
states, “Regularly used walkways and travelways shall be sanded, salted or
cleared of snow and ice as soon as practicable.” Something that happens
“regularly” happens in a “[c]ustomary, usual, or normal” fashion. [36] The record
establishes that the walkways on both sides of the MEM 611 barge and at its
stern were normally used by dredge hands who were sent onto the barge to take
draft readings and perform other tasks. Inspector Jewell offered the best
description of how the readings were taken. He explained how a miner
transferred from the dredge to the barge, walked along the side of the barge to
the stern, crossed the stern and traveled up the outboard side of the barge to
where the draft marks and numbers were visible. Then, leaning out over the
water and looking down at the numbers and marks on the side of the barge, the
deck hand reported a reading to the dredge operator so the operator could load
the barge evenly. Tr. 40-41; see also Tr. 77, 80 and 159-60, 162
(Conway’s description of the task). Conway was told that miners also regularly
transferred to the barge to perform other tasks, e.g. , taking sand
samples and mooring and unmooring the barge. Tr. 173. Hunter did not challenge
the description of the tasks nor the fact that deck hands who regularly
transferred to the barge traveled its walkways. The court therefore concludes
that the walkways were “regularly used.”

In reaching this
conclusion the court has considered Hunter’s argument that the walkways along
the sides of the barge were not “travelways” because the Part 56 regulations do
not encompass “transient, moveable barges in underwater dredging operations.”
Tr. 23 . The court is not persuaded. Part 56, under which section
56.11016 was promulgated, applies to “surface metal or nonmetal mines.” 30
C.F.R. § 56.1. “Mines” include “equipment . . . on the surface . . . used in,
or to be used in, or resulting from, the work of extracting . . . minerals [in
this case, sand and gravel] from their natural deposits in non-liquid form.” 30
U.S.C. § 802 (h)(1)(C). The “surface” can be composed of land or water. It only
needs to be a top most layer, and MSHA has long exercised jurisdiction over
mining carried out from the top (the surface) of rivers, lakes and ponds. Further,
barges used to haul material from mining operations carried out on top of the
water are “equipment . . . used in the work of extracting . . . minerals,” just
as trucks used to haul minerals extracted from operations carried out on the
surface of the land are such equipment.

The standard
also requires that an operator clear snow and ice from regularly used walkways
“as soon as practicable.” 30 C.F.R. § 56.11016. A great deal of testimony was
offered regarding whether or not ice was on the barge walkway when Burnham
disappeared. Although Conway in issuing the citation stated that both “snow and
ice” were present (Citation No. 8728537) the record only supports finding the
presence of snow. Conway saw neither snow nor ice because whatever was on the
barge walkways was removed by the time she arrived. Tr. 135, 238. Story, who
was called to the scene before Inspector Jewell arrived, testified that there
was snow on the walkways but no ice, and the essence of the testimony of the
Patsy M.’s pilot, Roger Fairfield, who had a first-hand view of the conditions
on December 9 and 10 was the same, to wit, that there was snow but no ice. See
Tr. 458-59. The presence of the snow is not surprising. It was December,
and an area weather report for that night shows temperatures in the high 20s
Fahrenheit with light snow. Tr. 327-28, 329; Gov’t Exhs.7, 8. Further, the
photographs taken by Jewell shortly after he arrived on the scene show snow but
no identifiable ice. See Gov’t Exh. 2. The court therefore finds that on
the night of December 9 and 10, only snow covered the regularly used walkways
of the MEM 611 barge.

The question
then is whether this snow was cleared from the walkways “as soon as
practicable.” Commission Judge Richard Manning considered the meaning of the
phrase “as soon as practicable” and offered helpful guidance. Judge Manning
stated:

The issue of
what constitutes “as soon as practicable” is not entirely clear. “As soon as
practicable” is not defined in the Secretary's regulations. The Commission has
held that in the absence of a regulatory definition of a word, the ordinary
meaning of that word may be applied. See Bluestone Coal Corp. , 19 FMSHRC
1025, 1029 (June 1997); Peabody Coal Co. , 18 FMSHRC 686, 690 (May 1996),
aff'd , 111 F.3d 963 (D.C. Cir. 1997). The dictionary defines
“practicable” as “possible to practice or perform: FEASIBLE.” Webster's New
Collegiate Dictionary 895 (1979). Relying on such, a reasonable
interpretation of the cited standard would require that snow and ice be sanded,
salted, or cleared as soon as possible.

Caballo Coal Co., LLC , 32 FMSHRC
1736, 1741 (Nov. 2010).

During the early
morning hours, enough time elapsed prior to Burnham’s disappearance to allow
the empty MEM611 barge to be brought to the Dredge IV and moored, for dredging
to get underway and for sand to be loaded into the barge. Was there enough time
to sand or salt or to otherwise safely remove the snow before Burnham was
ordered to take a draft reading? The court concludes the Secretary did not
prove that there was.

The court
recognizes the pragmatic problems faced by Hunter in this regard. Any miner
assigned to clear the snow prior to Burnham’s disappearance would have
encountered at least the same hazards that Burnham faced. As Stone and
Fairfield suggested, washing off the snow would have created a greater hazard
on the barge by icing over the barge’s walkways and transforming any remaining
snow to an icy, snowy mix. Tr. 308-09, 310, 481. The fact that ice formed on
the dredge at the spot where suctioned water spilled onto the dredge deck
supports this conclusion. Tr. 95-96. In addition, Fairfield’s testimony that
using sand on the snow would have packed down the snow making it more slippery
was not refuted by the Secretary. Tr. 459. Indeed, the Secretary did not
provide any solution to the problem presented by the snow aside from suggesting
Hunter not assign the task of taking a draft reading to Burnham, but this
“solution” is not contemplated by the standard, which speaks only of the
removal of snow or ice as soon as practicable. The record thus leads the court
to conclude that the first practicable time to remove the snow from the barge
deck was later in the morning when the temperature warmed enough to allow snow
to be washed off the deck without the water freezing, a procedure followed to
abate the alleged violation. In reaching this conclusion the court discounts Conway’s
view that washing off the barge at night in below freezing temperatures would
“[n]ot necessarily” create more hazards. Tr. 248-49. Her opinion defies a law
of physics. Water freezes at 32 degrees Fahrenheit and below, especially water
on a metal surface. Indeed, as the court just noted, ice had formed on the
dredge screening area, and similar accumulations of ice could be expected on
the barge. Tr. 95-96.

Conway believed
that until the snow could be eliminated, Hunter had an obligation to eliminate the
hazard:

You address it
and you don’t allow people to walk on it if it’s

hazardous. Find
another way of doing that. If you have a miner, restrict

the access. It
may take you time to get whatever you need to wash,

sand or salt,
but do address the hazard. Don’t say be careful while you’re

walking across
there because it might be slick.

Tr. 248.

Conway’s
instincts were sound. Operators ought to restrict access to hazards by those
under their care. Indeed, 30 C.F.R. § 56.11001 in effect contains such a requirement.
Section 56.11001 states, “Safe means of access shall be provided and maintained
to all working places,” which the operator arguably failed to do when it
permitted Burnham entry to the barge in the midst of hazardous conditions. However,
the Secretary did not allege the company violated that standard, although he
could have amended his pleadings to do so. Rather, he cited the company for
violating a standard that requires the sanding, salting or clearing of snow “as
soon as practicable. ” The standard does not require barring miners from
using snow covered walkways until snow has been sanded, salted or cleared. Had
the Secretary wished he could have, and perhaps should have, promulgated the
regulation to so state, but he did not. The court holds to the notion that
words have consequences and that the court must judge whether the Secretary
proved a violation of the standard as it is written. Here, the court finds that
the Secretary did not prove that Hunter failed to sand, salt or clear snow from
the walkways of the MEM 611 Barge as soon as practicable, and the citation will
be vacated.

ORDER NO.              DATE              30
C.F.R. §                  PROPOSED PENALTY

8728540                    2/25/14           
 46.7(b)                                   $70,000

THE VIOLATION

The order was
issued pursuant to section 104(d)(1) of the Act. 30 U.S.C. § 814(d)(1) The
order contains Inspector Conway’s findings that the alleged violation of
section 46.7(b),

C.F.R. § 46.7(b), could reasonably be expected to cause a fatal injury, was
S&S and was due to Hunter’s unwarrantable failure and high negligence. The
order states:

On December 10,
2013 a fatal accident occurred at this dredge operation. A dredge hand walked
onto a snow and ice covered barge to obtain draft readings on the opposite side
of the barge. The victim slipped on the barge and fell into the water. The task
of obtaining a draft reading changed due to snow and ice accumulations on the
barge deck surface. The snow and ice slip and fall hazard affected the health
and safety risk encountered by the victim. The mine operator engaged in aggravated
conduct constituting more than ordinary negligence in that management failed to
provide safe work procedures that addressed snow and ice accumulation on deck
surfaces and the additional safety risk that it poses. This violation is an
unwarrantable failure to comply with a mandatory standard.

Gov’t Exh. 15 at 1.

Section 46.7(b)
relates to new task training. The standard, which is addressed to the mine
operator, states, “If a change occurs in a miner’s assigned task that affects
the health and safety risks encountered by the miner, you must provide the
miner with training under paragraph (a) [30 U.S.C. § 46.7(a)] of this section
that addresses the change.

Paragraph (a) of
section 46.7 advises a mine operator in part:

You must provide
any miner who is reassigned to a new task in which

he or she has no
previous work experience with training in the health

and safety
aspects of the task to be assigned, including the safe work

procedures of
such task . . . . This training must be provided before the

miner performs
the new task.

30 U.S.C. § 46.7(a).

The order
alleges that, “[M]anagement failed to provide safe work procedures that
addressed snow and ice accumulation on deck surfaces and the additional safety
risk that it poses.” Order No. 8728540. The change that occurred in Burnham’s
assigned task (to take a draft reading) was snow covering the walkways of the
barge. (As previously noted, the record does not support the presence of ice.) The
parties agree and the record confirms that snow in fact covered the barge
walkways when Burnham was assigned to the task. The court finds ample evidence
that the snow created a slip and fall hazard. The court further finds the slip
and fall hazard changed the task in that it changed the way the task should
have been undertaken or it warranted delaying the task until the snow could be
removed. Thus, the court finds in the words of section 46.7(b) that “a change
occur[red] in [Burnham’s] assigned task that affect[ed] the . . . safety risks
encountered by [Burnham],” and the court concludes the standard required Hunter
to “provide [Burnham] with additional training under paragraph (a) [of section
46.7].”  

Section 46.7(a)
in turn required Hunter to “provide any miner who is reassigned to a new task
in which he or she has no previous work experience with training in the . . .
safety aspects of the task . . . including the safe work procedures of such
task” and to do so “before the miner performs the new task.” 30 C.F.R. § 47.7(a).
The Secretary does not contend that the new miner training Burnham originally
received was deficient. Conway testified “it appeared [Burnham had] gone
through the task training at the time, and [it] had been sufficient.” Tr. 191. It
is the alleged failure to train Burnham in how to take a draft reading when
snow covered a barge’s walkways that constituted, in the Secretary’s view, the
violation. As Conway stated, “[W]hen the conditions changed in that the weather
change[d] . . . when he had to take draft readings, at that time the task
training should have been revisited in order to train [Burnham] on how to deal
with the snow and/or ice on the walkways, what to do it if was on the barge.”
Tr. 191.

The Secretary
argues that Hunter failed to train miners to identify snow covered walkways as
a hazard and failed to inform Hunter employees of the requirement to sand,
salt, or clean barge walkways when practicable. Gov’t Br. 31. Conway believed
that miners taking draft readings on a barge should be trained either to
address the snow hazard prior to attempting their task or to avoid exposing
themselves to it. Tr. 199. Unlike earlier, the validity of this argument does
not depend on the precise definition of “practicable” or require a conclusive
finding on whether it was practicable for Burnham to sand, salt, or clear snow
from the barge walkway during the night he disappeared. The evidence in the
record that Hunter employees did not recognize snow covered barges as hazardous
( see Tr. 195, 466, 482) and were not trained on the necessity of
neutralizing snow or ice hazards when practicable (Tr. 445) establishes the
inadequacy of Hunter’s task training. Moreover, given Section 46.7(b)’s broadly
worded requirement to address task changes that affect health and safety risks,
Hunter’s task training should have included instruction to delay the task of
taking a draft reading when snow covers the barge walkways until the hazardous
snow can be cleared from the deck, even if the much more narrowly worded
standard dealing with removal of snow does not include such a requirement.

The court has
considered Hunter’s position that given Burnham’s work experience prior to
being hired by Hunter, the company was under no obligation to provide Burnham
with new task training when conditions changed and snow covered the walkways of
the MEM 611 barge.

Hunter points to the language in section
46.7(a) which requires an operator to provide “any miner who is reassigned to a
new task in which he or she has no previous experience with training in the
health and safety aspects of the task to be assigned” (30 C.F.R. § 46.7(a)) and
it notes that MSHA’s accident report states that “Burnham had about 55 months
of mining and/or river experience that included . . . loading barges . . .
[and] putting barges together.” Gov. Exh. 8 at 17; see Hunter Br. 31-33.
The court agrees with Hunter that the record establishes that Burnham had
extensive experience working in a marine environment before he was hired by the
company. He also had more limited experience working for a surface coal
facility. Tr. 320-26, 343, 383-84, 392-93. What is missing is any evidence that
Burnham’s prior experience brought him under Part 46 because of his engaging in
the words of Part 46 in “shell dredging” or because he was “employed at sand,
gravel, surface stone, surface clay, colloidal phosphate, or surface limestone
mines.” 30 C.F.R. Part 46. The “task training” reference in section 46.7 refers
to tasks as performed in the specific kinds of mining referenced in Part 46,
and there is no evidence that Burnham previously worked at facilities engaged
in such mining.

Further, the company’s
argument that “hazard recognition training specific to the assigned task” was
given to Burnham before December 10 (Hunter Br. 33-34, quoting 46.7(d))
is not supported by the record. The type of training required by the standard
is training addressing the specific task of taking a draft reading (or other
task) on a barge when snow covers the walkways of the barge. Hunter may well
have provided Burnham training in which “issues related to winter condition on
a barge . . . including snow or ice on a barge were addressed” (Tr. 349-350;
Hunter Br. 35), but this is not training “specific to the assigned task” that
is referenced in section 46.7(d).

Conway believed
that Hunter made no effort to new task train miners, including Burnham, in safe
ways to conduct assigned tasks in the presence of snow and/or ice (Tr. 201),
and Stone agreed that the company did not provide new training for every task
when there were changes in the weather. Tr. 352. To do so and to document the
training would have been, in Stone’s view, “terribly onerous.” Tr. 353. While
it indeed might have been burdensome to give and document weather driven new
task training, the burden is beside the point. The fact remains that Burnham was
assigned the task of taking a draft reading under a changed condition that
affected his safety. Pursuant to section 46.7(b) he should have been trained to
perform the task in a way that took account of the hazard posed by the new
condition. Since this did not happen, the court concludes Hunter violated
section 46.7(b) as charged.

S&S
AND GRAVITY

An S&S
violation is a violation “of such nature as could significantly and
substantially contribute to the cause and effect of a . . . mine safety
hazard.” 30 U.S.C. § 814(d)(1). A violation is properly designated S&S “if,
based upon the particular facts surrounding that violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3
FMSHRC 822 (Apr. 1081).

The Commission
has explained that,

In order to
establish that a violation of a mandatory safety standard is significant and
substantial under National Gypsum , the Secretary . . . must prove: (1)
the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard—that is, a measure of danger to safety—contributed to by the
violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.

Mathies Coal Co ., 6 FMSHRC 1,
3-4 (Jan. 1984) (footnote omitted); see also Buck Creek Coal, Inc.,
v. MSHA , 52 F. 3d 133, 135 (7 th Cir. 1999); Austin Power v.
Secretary of Labor, 861 F. 2d 99, 103-104 (5 th Cir. 1988, aff’g
Austin Power, Inc. , 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies
criteria).

The Commission
has recently clarified the key distinction between the second and third Mathies
prongs. Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug. 2016) (citing Knox
Creek Coal Corp. v. Sec’y of Labor , 811 F.3d 148, 162 (4th Cir.)) The
second prong concerns the “ likelihood of the occurrence of the hazard,”
while the third prong is “primarily concerned with gravity – the
seriousness of the expected harm.” Id. The ALJ must “clearly” and
“adequately define the particular hazard to which the violation allegedly
contributes” in terms of “the prospective danger the cited safety standard is
intended to prevent.” Id. at 2038. After “[h]aving clearly defined the
hazard,” the ALJ’s next task at the second prong is to assess “whether, based
upon the particular facts surrounding the violation, there exists a reasonable
likelihood of the occurrence of the hazard against which the mandatory safety
standard is directed.” Id.

If the Judge
concludes, based upon the evidence, that the violation sufficiently contributes
to the ‘hazard’ defined in the second prong, the Judge then assumes the
occurrence of the hazard and analyzes whether the assumed hazard would be
reasonably likely to result in injury in the third prong. Id . (citing Knox
Creek Coal Corp ., 811 F. 3d at 161-62; Peabody Midwest Mining, LLC ,
762 F.3d at 616; Buck Creek Coal , 52 F.3d at 135). The Secretary,
however, “need not prove a reasonable likelihood that the violation itself will
cause injury.”  Cumberland Coal Res. , 33 FMSHRC 2357, 2365 (Oct.
2011) (citing  Musser Eng’g, Inc. , 32 FMSHRC 1257, 1281 (Oct.
2010)), aff’d , 717 F.3d 1020 (D.C. Cir. 2013). Further, the Commission
has found that “the absence of an injury-producing event when a cited practice
has occurred does not preclude a determination of S&S.” Id .
(citing  Elk Run Coal Co. , 27 FMSHRC 899, 906 (Dec. 2005) and  Blue
Bayou Sand & Gravel, Inc. , 18 FMSHRC 853, 857 (June 1996)). This
evaluation is also made in consideration of the length of time that the
violative condition existed prior to the citation and the time it would have
existed if normal mining operations had continued.  Elk Run Coal Co. ,
27 FMSHRC at 905;  U.S. Steel Mining Co. , 6
FMSHRC 1573, 1574 (July 1984).

The court has
found that a violation of section 46.7(b) occurred. Further, the court finds
that a discrete safety hazard contributed to by the violation existed, i.e.,
the danger of an inadequately trained dredge hand slipping on a snow
covered barge walkway and falling into the icy Ohio River while taking a draft
reading, and if not falling into the river, the danger of slipping and falling
onto the metal and object strewn walkway. The prospective danger that section
46.7(b) is intended to prevent will vary based on the particular change in
conditions necessitating new task training. In this instance, new task training
was necessary because of the prospective danger of slipping and falling.

While not as
hazardous as walking on ice, walking on snow nonetheless posed a serious slip
hazard. In reaching this conclusion the court is aware that the record supports
finding the barge’s walkways were snow covered, not ice-coated, and it has not
discounted Fairfield’s testimony that, “With snow . . . you get a whole lot
better traction.” Tr. 456-457. But while Fairfield may be right that a person
walking on a snow covered barge walkway has better traction, he was speaking in
comparative terms. Compared to walking on ice, a person’s traction may indeed
be better, but still not good, as witnessed by the precautionary manner in
which Hunter recommended its employees proceed slowly, deliberately, and with short,
flat footed steps. Tr. 307, 311. 372, see also Tr. 390. The court
concludes it would defy common sense to find it was not dangerous in early
December when temperatures were in the 20s Fahrenheit to walk on a snow
covered, raked[ [37] ],
object strewn walkway at night, and above a high and icy river with light from
a cap lamp illuminating the way. Tr. 162, 327-328; 443; Hunter Exh’s 7, 8. The
hazard of slipping and falling may be greater on ice than on snow, but the
barge’s snow covered walkways under these conditions still presented a very significant
hazard, and Burnham had no training as to how to accomplish the assigned task
in the event of this hazard other than altering his gate and pace, a “solution”
that still left him exposed to the hazard. Therefore, the lack of new task
training to address the change of conditions on the barge was reasonably likely
to lead to a slip and fall hazard.

The court next
finds a reasonable likelihood that the hazard contributed to would result in an
injury of a reasonably serious nature. Given the time of year (December) and the
location of the barge on an Ohio River that was, as Jewell described, “pretty
wild . . . swift . . . up . . . [and] high” (Tr. 59), the court finds it
reasonably likely that a dredge hand who slipped on the snow would fall into
the river and suffer a serious injury (hypothermia) or death (hypothermia
and/or drowning). Even if the miner avoided falling into the river, falling to
the metal walkway where numerous objects lay under the snow, was in the court’s
opinion, reasonably likely to result in a seriously sprained or broken
extremity, injuries that are reasonably serious. For these reasons the court
concludes the violation was S&S.

There is also no
doubt the violation was very serious. As the court reads Newtown the
third and fourth prongs of the S&S test and the gravity of a violation are
closely related. 38 FMSHRC at 2838. They both focus heavily on the effect of
the hazard if it occurs. The hazard was a likely slip and fall into the river
or onto the equipment strewn deck. If the slip and fall resulted in the dredge
hand ending up in the river but surviving until rescued, hypothermia that can
lead to vascular constriction and organ failure, including cardiac arrest, was
likely. If he or she was not timely rescued death from hypothermia or drowning
was virtually a given. And if the dredge hand was fortunate and the slip and
fall did not send him or her into the water, he or she nonetheless was likely
to suffer broken bones, sprains, cuts and/or bruises.

UNWARRANTABLE
FAILURE AND NEGLIGENCE

In Manalapan
Mining Co. , the Commission summarized the factors to be evaluated in
determining whether a violation was caused by an operator’s “unwarrantable
failure:”

In Emery
Mining Corp. , 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Id. at 2001. Unwarrantable failure is characterized by such
conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a
“serious lack of reasonable care.” Id. at 2003-04; Rochester &
Pittsburgh Coal Co. , 13 FMSHRC 189, 194 (Feb. 1991); see also Buck
Creek Coal, Inc. v. MSHA , 52 F.3d 133, 136 (7th Cir. 1995) (approving
Commission's unwarrantable failure test).

Whether conduct
is “aggravated” in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any
aggravating factors exist, including (1) the extent of the violative condition,
(2) the length of time that the violative condition existed, (3) whether the violation
posed a high degree of danger, (4) whether the violation was obvious, (5) the
operator's knowledge of the existence of the violation, (6) the operator's
efforts in abating the violative condition, and (7) whether the operator had
been placed on notice that greater efforts were necessary for compliance. See
IO Coal Co. , 31 FMSHRC 1346, 1351-57 (Dec. 2009); Cyprus Emerald Res.
Corp ., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds , 195
F.3d 42 (D.C. Cir. 1999). These seven factors need to be viewed in the context
of the factual circumstances of a particular case, and some factors may be
irrelevant to a particular factual scenario.  Consolidation Coal Co. ,
22 FMSHRC 340, 353 (Mar. 2000). Nevertheless, all of the relevant facts and
circumstances of each case must be examined to determine if an operator's
conduct is aggravated, or whether mitigating circumstances exist. Id. ; IO
Coal , 31 FMSHRC at 1351.

Manalapan Mining Co., 35 FMSHRC 289,
293 (Feb. 2013).

The Commission
has relied upon the high degree of danger posed by a violation to support an
unwarrantable failure finding. See Beth Energy Mines, Inc. , 14
FMSHRC at 1243-44 (finding unwarrantable failure where unsaddled beams
“presented a danger” to miners entering the area); Warren Steen Constr.,
Inc. , 14 FMSHRC 1125, 1129 (July 1992 (finding unwarrantable failure based
upon “common knowledge that power lines are hazardous, and . . . that
precautions are required when working near power lines with heavy equipment”); Quinland
Coals , 10 FMSHRC at 709 (finding unwarrantable failure where roof
conditions were “highly dangerous”). The Commission has specifically noted that
the factor of “dangerousness,” by itself, may warrant a finding of
unwarrantable failure, though the absence of significant danger does not
necessarily preclude a finding of unwarrantable failure. Manalapan Mining ,
35 FMSHRC at 294. Indeed, and as noted, in making a finding regarding
unwarrantable failure, all of the factors must be considered by the judge.

The court
concludes that the factors it must consider point in the direction of
unwarrantable failure. The violation was extensive. The record supports finding
there was no specific training given to any employee, including Burnham,
regarding how safely to take a draft reading when snow covered the deck of a
barge. The violation had existed for some time. The snow fell along the Ohio
River on the night of December 9 and the early morning of December 10. The
court notes that snow along the Ohio River in December is not unusual. Hunter
should have anticipated the change in conditions and should have known to
conduct the training in advance of the snowfall, especially given the
widespread lack of recognition at the mine of the hazards posed by snow on the
barge walkways. See Tr. 195, 466, 482. There is no doubt the violation
posed a high degree of danger. The most significant danger was that a worker
who was not trained to perform his or her task in the presence of the snow
would slip and fall into the river. As has been observed by the court the
result of such an event was likely to be serious injury or death. Even if the
worker avoided going overboard there was a significant danger of broken bones,
sprains or contusions caused by slipping and falling on the metal deck or on
some of the equipment piled onto the deck. The likelihood of snow during
Hunter’s December operations made the violation obvious. And although there is
no evidence in the record that Hunter had been placed on actual notice that the
training was required, it should have been clear to Hunter that additional
training was needed to comply. Given these factors, and the lack of any
evidence of mitigating efforts to abate the violative condition the court
concludes that the company unwarrantably failed to train Burnham in how safely
to take a draft reading when snow covered the deck and walkways of a barge.

The court
further concludes that Hunter was highly negligent. The court is convinced that
a prudent operator would have provided the training. In reaching this
conclusion the court recognizes a feasible argument can be made that the
company’s negligence is lessened by the experience Burnham brought to the job
when he was hired and by some of the training he received upon being hired. In
employing Burnham the company hired a person with approximately five years of
prior experience working year in, year out, on and around barges. Tr. 326; see
Tr. 321-25. Hunter’s management might reasonably have assumed that Burnham
brought to the job at least a few basic safety techniques required for winter
work on barges. Moreover, the record confirms after Burnham’s hiring working in
winter weather conditions was discussed during his new miner training. Tr.
306-07. The court also recognizes that like all new miners trained by Hunter,
Burnham was told that when working in the presence of snow and/or ice, a miner
needed to move slowly, to take short steps and to walk flat footed. Tr. 307,

390. The court further accepts Stone’s testimony that near the end of October,
     Burnham watched a training film about working in a marine environment,
     including working during winter, and that the film addressed tripping and
     falling hazards and also advised miners to walk deliberately and in a flat
     footed manner in the presence of snow and/or ice. Tr. 334-35. Nonetheless,
     there is no evidence specific training was given regarding safe work procedures
     to implement when required to take a draft reading from a snow covered walkway,
     and this is what the law required. [38]
     Given the extreme danger the task posed, the court concludes Hunter failed in
     its duty to meet the high standard of care demanded by the circumstances
     despite factors that might otherwise be viewed as mitigating Hunter’s
     negligence. Therefore, it is the court’s conclusion that the danger inherent in
     assigning Burnham to take a draft reading was such that the standard of care
     required of Hunter was very high and its failure to meet the standard was
     equally high, and the court concludes that Hunter was highly negligent.

ORDER NO.              DATE              30
C.F.R. §                  PROPOSED PENALTY

8728538                    2/25/14           
56.15020                                $5,645

THE VIOLATION

The order was
issued pursuant to section 104(d)(1) of the Act. 30 U.S.C. § 814(d)(1) The
order contains Inspector Conway’s findings that the alleged violation of
section 56.15020 could reasonably be expected to cause a fatal injury, was
S&S and was due to Hunter’s unwarrantable failure and high negligence. The
order states:

On December 10,
2013 a fatal accident occurred at this dredge operation. A dredge hand walked
onto a snow and ice covered barge to obtain draft readings on the opposite side
of the barge. The victim slipped on the barge and fell into the water. The
victim was not wearing a life jacket. The mine operator engaged in aggravated
conduct constituting more than ordinary negligence in that management was aware
miners, not wearing life jackets, were working and traveling where there was a
danger of falling into the water. This violation is an unwarrantable failure to
comply with a mandatory standard.

Gov’t Exh. 12 at 1.

Section 56.15002
states: “Life jackets or belts shall be worn where there is a danger of falling
into the water.”

The regulation
is straightforward. If there is a danger of falling into the water, a miner
must wear a life jacket or a life belt. The Secretary alleges Burnham was not
wearing a life jacket when he crossed to the barge and traveled its walkway on
his way to taking a draft reading. The court first considers whether Burnham
was in “danger of falling into the water” when he was on the walkway and the court
finds he was. There was nothing to restrain Burnham if he slipped or fell. The
sides of the barge adjacent to the walkway were open. There were no railings. There
were no fences. There were no ridges along the edges of the barge. There was
nothing to impede him if he slipped and fell toward the edge of the barge. Therefore,
the court finds in the words of section 56.15020, “there [was] a danger of
falling into the water,” and it concludes that Burnham was required to wear a
lifejacket.

The court next considers
whether Burnham was not in compliance. The Secretary must prove the violation
by a preponderance of the evidence. The Commission has set forth what the
burden entails:

The Mine Act
imposes on the Secretary the burden of proving each alleged violation by a
preponderance of the credible evidence. Garden Creek Pocahontas Co., 11
FMSHRC 2148, 2152 (November 1989). The preponderance standard, in general,
means proof that something is more likely so than not so. See 3 Edward
J. Devitt et al., Federal Jury Practice and Instructions § 72.01 (1987);
2 Kenneth S. Brown et al., McCormick On Evidence § 339, 439 (4th ed.
1992); Hopkins v. Price Waterhouse, 737 F. Supp. 1202, 1206 (D.D.C.
1990). The Supreme Court, in Concrete Pipe, 124 L.Ed.2d at 563 . . .
explained that “[t]he burden of showing something by a ‘preponderance of the
evidence,’ the most common standard in the civil law, simply requires the trier
of fact ‘to believe that the existence of a fact is more probable than its
nonexistence before [he] may find in favor of the party who has the burden to
persuade the [judge] of the fact's existence.”’ See also 2 McCormick
§ 339, at 439 n.12, citing Model Code of Evidence, Rules 1(3) & (5).

In Re: Contests of Respirable Dust
Sample Concentration Citations, Keystone Coal Mining Corp. 17 FMSHRC 1819,
1837 (December 1995).

Although the
record is void of testimony that anyone saw Burnham with or without a life
jacket [ [39] ],
although Burnham’s body with or without a life jacket was never recovered,
although the record does not establish that of the life jackets available to
miners on the Dredge IV all but one were present, and although a life jacket
downstream was never found, the court concludes it is more probable Burnham was
not wearing a life jacket than he was wearing one. [40]
Tr. 84. First, prior to transferring to the barge and before he entered the
sample room, Burnham was wearing a life jacket. Tr. 84. A life jacket, the one
he was most likely assigned, was found next to the chair in which he was
sitting while in the sample room. Tr. 84, 232, 267, 316; Gov’t Exh. 2 at 12. Second,
Conway’s testimony that she determined a life jacket of the kind worn by
Hunter’s miners normally would “float” a person of up to 350 pounds and that
Burnham, who weighed considerably less, would have “floated” had he been
wearing a jacket was persuasive and is credited by the court. Tr. 219, 297-299.
Finally, the area of the river downstream from the barge was searched and
neither Burnham nor a life jacket was found. Tr. 271. Given these facts the
court concludes it is much more likely Burnham was not wearing a life jacket
than he was, and that the violation existed as charged.

S&S and
GRAVITY

The court has
found that a violation of section 56.15020 occurred. Further, the court finds that
the violation was reasonably likely to lead to a discrete safety hazard; i.e.,
without a life jacket a person falling into the river was in grave danger
of failing to float to the surface of the river. This hazard would in turn
likely result in a miner suffering hypothermia or drowning. In fact, given that
the river was high (“pretty wild”(Tr. 59)) and very cold (approximately 41
degrees Fahrenheit (Tr. 137)), a person falling into the river without a life
jacket was virtually assured of such consequences. In the court’s view the
violation was obviously S&S.

The violation
also was very serious. As noted above, severe hypothermia or death were
virtually a given.

UNWARRANTABLE
FAILURE AND NEGLIGENCE

The record
establishes that although Hunter did not exercise the care required, its
failure was not unwarrantable. The Secretary acknowledges that Hunter had a
policy of requiring its miners to wear life jackets when in danger of falling
into the water. Hunter also had a method of enforcing the policy by reminding
offending miners through hand signals to put jackets on when they were seen in
situations where jackets were required but not worn. Tr. 237. Although Conway
described Hunter’s enforcement of its policy as “very lax,” the record does not
support her description. Tr. 226. Rather, Robert Stone, who was in charge of
regulatory compliance, described Hunter’s progressive discipline policy. He
explained that when an employee was seen without a life jacket, he or she was
reprimanded orally on site. When he or she was seen a second time, the miner
was again reprimanded orally. The third time the miner was brought into the
office and counseled. If he or she refused to wear a life jacket he or she
received a written reprimand and warning. Tr. 404-05. Stone indicated that the
company never had to issue a written reprimand and warning and that it always
found oral warnings sufficient. Tr. 314. The court credits Stone’s testimony. It
further finds that the company’s measures to abate violations of the standard
as they arose weigh against an unwarrantable finding, and it notes that there
is no evidence that Hunter previously had to remind or discipline Burnham
regarding his failure to wear a life jacket.

In addition, the
company made sure its employees were trained that life jackets always had to be
worn where there was a danger of falling into the water. The policy was
explained during indoctrination training. The policy was again emphasized
during site specific training for the dredge. Tr. 338. Moreover, the life jacket
requirement was one of the subjects of a video entitled “Minutes to Live,”
which all new employees were shown. Tr. 339. The topic was also covered in a
written outline of the video which each new employee was given. Further, Stone
testified there were times when because of adverse river and/or weather
conditions, employees were reminded during company safety “stand downs” to wear
life jackets. Tr. 311. The topic was also discussed at annual refresher
training. Tr. 367- 68, 370; Hunter Exh. 18. Fairfield described the policy of
wearing life jackets on the job when there was a danger of falling into the
water as being “preached a lot,” and the record bears him out. Tr. 460. Moreover,
the company made sure life jackets were readily available, as evidenced by the
fact that on the Dredge IV there were more life jackets than deck hands. Tr.
332.

The court has
not discounted the fact that there is evidence that miners occasionally were
seen without life jackets when they were in danger of falling overboard. Tr.

445. For example, there was credible testimony that miners sometimes removed
     their life jackets when they needed to relieve themselves. Tr. 232-33. But
     there is no evidence of a long or extensive pattern of disregard of the
     requirements of section 56.15020, a pattern of non-compliance putting Hunter on
     notice that greater efforts were necessary to ensure its life jacket policy was
     followed. Moreover, as previously noted, in Burnham’s case there is no evidence
     he habitually disregarded the standard and that Hunter should have anticipated
     his noncompliance. Nor is there any evidence that Hunter had been cited
     previously for its employees violating section 56.15020.

While the
failure to wear a life jacket when in danger of falling into the river is a
very serious violation and while failing to wear a life jacket under such
circumstances is a visually obvious violation (assuming other employees and/or
management officials are present), the evidence does not support finding Hunter
knew or should have known that Burnham was not wearing a life jacket when he
responded to the instruction to take a draft reading early on the morning of
December 10.

This stated, the
record certainly supports finding that Hunter should have been more careful in
ensuring compliance with the standard. Hunter knew that its employees were
inclined to remove their life jackets when entering the sample room of the
dredge, yet there is nothing to indicate it took any measures to remind
employees to don their jackets when they left the room. There were no pictorial
or written reminders posted by the room’s exits. Further, there was no evidence
Hunter posted signage on its dredges or barges reminding miners not to remove
their life jackets when nature called. Nor is there any evidence that Hunter
included such specific reminders in its training. These are things a reasonably
prudent operator would have done, and the court concludes that the company was
moderately negligent in failing to meet its requisite standard of care.

CITATION NO.                     DATE              30
C.F.R. §                  PROPOSED PENALTY

8728541                         2/25/14      56.18002(a)                       
 $1,530

THE VIOLATION

The citation was
issued pursuant to section 104(a) of the Act, 30 U.S.C. § 814(a). The citation
contains Inspector Conway’s findings that the alleged violation of section
56.18002(a), 30 C.F.R. § 56.18002(a), contributed to a fatal accident, was
S&S and was due to Hunter’s high negligence. The order states:

On December 10,
2013, a fatal accident occurred at this dredge operation. A dredge hand walked
onto a snow and ice covered barge to obtain draft readings on the opposite side
of the barge. The victim slipped on the barge and fell into the water. Miners
travel barge walkways to obtain draft readings and collect samples. Management
failed to ensure that a competent person examine each working place at least
once each shift for conditions which may adversely affect safety and health.

Gov’t Exh. 17 at 1.

Section
56.18002(a) states: “A competent person designated by the operator shall
examine each working place at least once each shift for conditions which may
adversely affect safety or health. The operator shall promptly initiate
appropriate action to correct such conditions.”

The Court
concludes the Secretary easily met his burden of proof. The standard requires
the Secretary to prove that the walkways of the cited barge were a “working
place.” Section 56.2 defines “working place” as “any place in or about a mine
where work is being performed.” The walkways of the cited barge were used by
Burnham and others to take draft readings and for other work-related tasks. The
miners exerted themselves while on the walkways to perform the tasks. The
walkways were more than simple travelways; they were areas from which and on
which work was performed and as such, they came within the standard. Indeed, so
integral were the walkways to the tasks, the court considers the barge itself
as a workplace. The walkways should have been examined for conditions that
affected the safety of Burnham and others.

Conway testified
she was told barge walkways were not included in workplace examinations at
Hunter’s facility. Tr. 208. The company does not dispute the truth of what
Conway was told. [41]
Tr. 208. The court therefore finds that a competent person did not examine the
walkways on the MEM 611 barge before Burnham was assigned to take a draft
reading and that, as a result, Hunter did not eliminate a serious slipping or
stumbling hazard prior to Burnham transferring to the barge’s walkway. Tr.
209-10. Conway was right to cite the company for a violation of section
56.18002(a), and the court finds the violation existed as charged.

S&S
and GRAVITY

The court has
found that a violation of section 56.18002(a) occurred. Further, the court
finds that a discrete safety hazard contributed to by the violation existed. The
standard is directed against hazards that may be missed or inadequately
addressed absent a workplace examination, in this case a slip and fall hazard
from snow on the barge’s walkways. The failure to conduct the workplace examination
resulted in the failure to eliminate the snow covering the barge’s walkways or
to otherwise eliminate the hazard by using an alternative means to take the
draft reading or by postponing the work until the temperature rose above
freezing. The company’s failure in turn led to assigning Burnham to a task
whose execution was reasonably likely to result in a slip and fall accident. The
court’s finding in this regard is informed by the common knowledge that snow
can be slippery, that snow covered the barge’s walkways and obscured the
presence of items lying on the walkways, that the barge on which Burnham was
assigned to walk was listing, and that its walkways were open to the river with
nothing to restrain a slipping or stumbling person from falling into the water.
A fall into the river could reasonably be expected to result in hypothermia
and/or death. A fall onto the metal and object strewn walkway could reasonably
be expected to result in broken bones, cuts or sprains. It is clear to the
court that the violation was S&S.

The violation
which presented a high degree of danger was also very serious and the court so
finds.

NEGLIGENCE

Inspector Conway
found that the violation was due to the company’s moderate negligence, and the
court agrees. Gov’t Exh. 17 at 1. Although Conway believed that when conducting
the examinations certified persons concentrated too much of their efforts on
looking for mechanical defects rather than for safety hazards, she stated that
except for failing to include the barges in the examinations, the company’s
examinations met the requirements of the standard. Tr. 208-09. The company
appears not to have understood that if employees were assigned to work on a
barge and the work involved travel along the barge’s walkways, the barge became
a “working place” within the meaning of the standard and its walkways had to be
examined. Tr. 207-09. A reasonably prudent operator who intended to assign an
employee to a task involving travel on a barge’s walkways would have included
the barge and its walkways in its workplace examination. Hunter did not do this
and therefore did not exercise the care required of it.

OTHER CIVIL
PENALTY CRITERIA

The company is
not a serial violator of the regulations. As counsel for the Secretary agreed,
its violation history is small. Tr. 288-89; See Gov’t Exh. 21. The
Secretary did not offer any testimony or introduce any evidence regarding the
company’s size. However, when proposing penalties, the Secretary assigned three
size points to Hunter. See e.g. , Secretary of Labor’s Petition For The
Assessment of Civil Penalty, Exh. A, Docket No. KENT 2014-566. Under the
Secretary’s regulations for proposing penalties, three points indicates an
operator that is small in size. 30 C.F.R. § 100.3. Hunter does not argue that
the size of any penalties assessed will affect its ability to continue in
business, and the court concludes it will not. Further, although at the hearing
the Secretary did not address whether the company exhibited good faith in
abating the violations, it is clear from the record that in each instance it
did.

V.                
ASSESSMENT
OF CIVIL PENALTIES

CITATION NO.     DATE       
30 CFR §      PROPOSED PENALTY     ASSESSMENT

8728537            2/25/14         56.11016              
$70,000                      $0

The court has
found that the Secretary did not prove the violation. Therefore, a penalty
cannot be assessed.

ORDER NO.   DATE            30
C.F.R. §      PROPOSED PENALTY      ASSESSMENT

8728540          2/25/14           46.7(b)
                 $70,000                   $45,000

The court has
found that the violation was very serious and that it was caused by Hunter’s
high negligence. Given the court’s gravity and negligence findings and the
other civil penalty criteria discussed above it is clear that a substantial
penalty is warranted, although not in the amount proposed by the Secretary. Pursuant
to the Special Assessment provision in Part 100 of his regulations the
Secretary arrived at the proposal through electing to waive the regular
assessment. 30 C.F.R. § 100.3. The Commission has recently clarified that the
Secretary’s special assessment “does not negate the Judge’s duty to exercise
his or her independent authority to assess a penalty de novo based on the
record and consideration of the section 110(i) criteria.” The Commission has
further instructed that, “Judges must be attentive to the rationale supporting
the decision to seek the special assessment and the facts and circumstances
supporting that decision, so that the ultimate determination of the penalty
conforms to the Judge’s findings and conclusions.” The American Coal Company ,
38 FMSHRC 1987, 1993-94 (Aug. 2016). The Secretary’s special assessment in this
matter is premised in part on his finding that “the violation contributed to a
fatal accident. The snow . . . on the barge deck created a slipping and
tripping hazard. The miner slipped and fell into the water and drowned.”
Petition for the Assessment of Civil Penalty, Exh. A, Narrative Findings for a
Special Assessment, at 6-7 of 11. Therefore, the court will make specific
findings on the alleged facts and circumstances supporting this rationale for
the maximum penalty.

The Secretary’s
factual statement that Burnham “slipped and fell into the water” may or may not
be true. It is fair to note that the Secretary did not and could not prove the
claim. With no eyewitness to the accident and no physical evidence as to what
actually happed (for example, no evidence of footprints indicating Burnham
slipped) there is no way to know if he actually slipped, and there are other
possible explanations that are unrelated to the violation. For example, he may
have stumbled over something; he may have inadvertently stepped off the edge of
the barge, or he may have suffered a sudden loss of consciousness. The same is
true of the Secretary’s assertion that Burnham drowned. The Secretary cannot
prove the claim. Because Burnham’s body was not recovered the cause of his
death will never be known for certain. For example, it is possible, albeit
unlikely, that Burnham suffered a physical catastrophe and died before or upon
falling into the water. The court believes that in the interest of justice, it
is within its province to take these uncertainties which impinge on the gravity
of the violation into account when assessing a penalty. The court also concludes
it would be inequitable to assess the maximum penalty allowed (30 U.S.C. § 820(a))
in the face of such uncertainties. Given that the violation was very serious
and was due to the company’s high negligence as well as the other civil penalty
criteria referenced above, it is the court’s judgement that a penalty of $45,000
is warranted. In the court’s view, the penalty is large enough to have a substantial
deterrent effect while it avoids fiscally punishing Hunter based on causational
premises that have not been established. In addition, the assessment recognizes
that Hunter is not a habitual offender but rather an operator with a small
history of prior violations, and a “very cooperative” operator that Jewell
described as being free of “significant” safety issues before the events of
December 9 and 10. Tr. 101.

ORDER NO. DATE             30
C.F.R. §      PROPOSED PENALTY      ASSESMENT

8728538        2/25/14           56.15020             
 $5,645                     $4,000

The court has
found that the violation was very serious and that it was caused by Hunter’s
moderate negligence. Since in the court’s view the company’s negligence is less
than the Secretary asserts, the court departs somewhat from the Secretary’s
proposed penalty. Given the court’s gravity and negligence findings and the
other civil penalty criteria discussed above, the court finds that a penalty of
$4,000 is appropriate. The assessment also reflects Hunter’s small history of
prior violations.

CITATION NO.   DATE        
30 C.F.R. §      PROPOSED PENALTY    ASSESSMENT

8728541           2/25/14          56.18002(a)              
$1,530                             $1,530

The court has
found that the violation was very serious and that it was caused by Hunter’s
moderate negligence. Given the fact that the court’s gravity and negligence
findings are consistent with the Secretary’s allegations and in view of the
other civil penalty criteria discussed above, the court concludes that the
penalty proposed by the Secretary is appropriate, and it assesses Hunter $1,530
for the violation.

ORDER

Citation
No. 8728537 IS VACATED . The negligence finding on Order No. 8748538 IS
MODIFIED from “high” to “moderate.” In addition, the finding of
unwarrantable failure on Order No. 8748538 IS DELETED . Within 30 days of
the date of this decision, Hunter SHALL PAY total civil penalties of
$50,530 for the violations found above. In addition, and within the

same 30 days, if he has
not already done so, the Secretary SHALL VACATE Order No. 8728539
(Stip.9). Upon payment of the penalties and vacation of the order(s), this
proceeding IS DISMISSED. [42]

/s/ David F. Barbour

David
F. Barbour

Administrative
Law Judge

Distribution:

Willow Eden Fort, Esq., U.S. Department
of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville,
Tennessee   37219

Robert Nienhuis, Esq.; Elana Charles,
Esq., Hunter Sand & Gravel, LLC, One Memorial Drive, Suite 1000, St. Louis,
Missouri   63102

[1]  The
investigators also were duly authorized mine inspectors.

[2] Order No.
8728539 (Docket No. KENT 2014-566) alleged Hunter violated 30 C.F.R. § 15005 by
failing to provide required safety belts and lines for miners working on Dredge
IV. The decision to vacate the order means that two citations and two orders
remain at issue.

[3] Stone’s office
is located at the company’s complex in Ledbetter, Kentucky. Tr. 103-104. Jewell
knew Stone from his inspections of another dredge owned and operated by Hunter.
He also knew him from Stone’s work with the Holmes Safety Association, one of
the nation’s oldest mine safety organizations. Tr. 100. Jewell described Stone
as intent on making sure the company’s dredges are operated in a safe manner.
Tr. 100-101. Jewell agreed that prior to December 10 his experience with the
company had been free of “significant” safety issues and that he found the
company to be “very cooperative.” Tr. 101.

[4] As Jewell
understood it, to take a draft reading Burnham had to cross from the port side
of the dredge onto the immediately adjacent starboard side of the barge, travel
the barge walkway to the stern, and walk across the back of the stern in order
to then read the numbers on the port side of the barge. Tr. 75; see
Gov’t Exh 20 at 1. Asked why Burnham had to cross to the barge to take the
draft reading, and why Burnham did not remain on the dredge and read the draft
mark numbers on the starboard side, Jewell replied that the only numbers
visible to Burnham were on the port side of the barge. Tr. 77. On a diagram of
the barge Jewell marked the spot at which Burnham would have stood to take the
reading. Gov’t Exh. 20 at 1 ( see red “x” under words “Stern Travel
Way”). Jewell stated that when Burnham reached the port side of the barge (also
referred to as “the outboard side”) he would have had to position himself above
the draft marks on the port side, lean out over the river and use his cap lamp
to illuminate the hash draft so he could read the numbers. Tr. 77.

[5] On the diagram
of the barge Jewell marked with pink “Xs” the spots where he understood Mr.
Burnham was last seen by the pilot. Tr. 80; Gov’t Exh. 20 at 1.

[6] When working at
night Hunter’s employees wore a portable light secured around their heads with
an elastic strip over their caps. Tr. 86.

[7] In fact, the
barge was not level. Later in the trial Stone estimated that the barge was
about 16 degrees out of level at the time of Burnham’s disappearance. Tr. 409. In
addition, because the barge was loaded from back to front, Stone agreed that
the barge experienced “considerable sloping . . . from front to back.” Tr. 410.

[8] The court
interprets this to mean that anyone using the walkway on the side of the barge
closest to the dredge would tend to slide into the barge not away from it
toward the water. However, at the stern anyone using the walkway would be
traveling from the higher to the lower side of the barge, which would tend to
cause someone who slipped or tripped to fall or slide toward the water on the
outboard side of the barge. Tr. 136-38; Gov’t Exh. 20a.

[9] A “coaming” is
defined as a “raised rim or border around an opening, as in a ship’s deck,
designed to keep out water.” The American Heritage Dictionary of the English
Language Fourth Edition,” Houghton Mifflin Harcourt (2009) at 353. See Gov’t
Exh. 8 at 2.

[10] Conway
indicated the location of the draft numbers on a diagram of Barge MEM 611 (Tr.
159; Gov’t Exh. 20a (draft numbers circled in green)), and she marked with a
green “X” where she believed an employee stood to take a draft reading. Tr.
160; Gov’t Exh. 8a. Conway thought draft readings also could be taken from a
boat obviating the need for an employee to travel along a barge’s walkway (Tr. 174),
but Fairfield disagreed. Tr. 481. Everyone agreed, however, that the most “common
practice” was for employees to travel along the barge’s walkways to take the readings.

[11] Stone may have
had a different opinion. When asked about a photograph of the barge walkways
taken the morning of Burnham’s disappearance, but before the snow was removed,
he seemed to agree that the walkways on the MEM 611 barge were hazardous. Tr.

412. He stated, “Well, the rigging and a cable certainly is there and I see
     clumps of frozen material. I would still prefer walking in the snow than I
     would on straight ice. But are there hazards out there, yes, absolutely.” Id .
     

[12] She added that
the fact Burnham may not have been wearing a lifejacket and that he lacked
specific task training were also contributing factors to his disappearance and presumed
death (Tr. 178), and while other causes for Burnham’s disappearance were
considered, there was no evidence they were a factor. (For example, Burnham had
no history of possible contributory medical conditions, and there was no hint
that Burnham was in financial difficulty or experienced social problems. Tr.
272.)

[13] Conway stated,
“You had snow and/or ice on the walkways covering part of the way where miners
were expected to walk. [T]hey couldn’t see what may be underneath it. But also
[there was] the hazard of slipping.” Tr. 179.

[14] She believed
that in addition to Burnham, two or three other miners might have been
affected. They typically took draft readings. Tr. 185. However, Conway agreed
she only knew for sure of one other miner who had been on the MEM 611 barge before
Burnham. Id.

[15] Conway
acknowledged that the regulation she cited required the snow and/or ice to be
neutralized (sanded, salted or cleared) “as soon as practicable.” To Conway
this meant “when you see it, you address it and don’t allow people to walk on
it if it’s hazardous.” Tr. 248-49. In her view, if it was going to take time to
get needed sand or salt to apply to the walkways, Hunter should have restricted
access to the area to eliminate the hazard the condition posed to employees. Id.

[16] She also stated
that if the conditions of a regular task change, an operator is required to
provide its employee with new task training that takes account of the changed
conditions, and if an employee has done a task before but cannot demonstrate
proficiency in the task, an operator is required to provide new task training.
Tr. 269.

[17] For example,
Stone admitted that under some circumstances a draft reading could be taken
from a tug boat and that if taken this way, the need for a miner to travel on
the barge to take a reading was obviated. Tr. 388-89. However, he noted that a
tug always was not available. At times it did not stay at the dredge after it
delivered a barge. Tr. 389.

[18] Conway noted
the lack of handrails around the barge walkways as well as the icy temperature
of the water in December. Tr. 210-11.

[19] Although an
extensive search was conducted on the river and along its banks after the presumed
accident, a life jacket that Burnham might have been wearing but lost once he
was in the water was not found. Tr. 271.

[20] In fact, Conway
also testified that winter clothing Burnham wore would have helped him float
rather than drag him down because it would have trapped air and increased the
buoyancy provided by the life jacket. Tr. 217, 401.

[21] Hunter had no
written progressive discipline policy at its Ohio River operation. Tr. 403. The
superintendent imposed discipline either on his own or on the recommendation of
the job foreman. Tr. 402. With regard to the subject dredge, if a dredge
foreman, for example, Douglas, recommended discipline for one of the members of
his crew, the superintendent decided whether to implement the recommendation. Id .

[22] For example,
she was told it was common for some employees to relieve themselves off the
side of the dredge and not wear their life jackets when doing so. Tr. 223; Tr.
232-33.

[23] Stone testified
that the first time a miner was found without a life jacket he or she was
reminded orally or through hand signals to comply. Tr. 403. If it happened
again, the employee was “told a second time.” Id. According to Stone, if
it happened a third time, the employee “would be brought in and counseled.” Id.
If an employee outright refused to wear a life jacket, he or she “would
automatically receive [a written warning.]” Tr. 404-05.

[24] Stone described
the process as follows:

[Y]ou can take a
task training form, send it with the individual, and as they work through the
tasks that they’re being shown, a task training form can actually be out there
on the job for as long as a year before we need to see [it] back in the office.

Tr.
305-06. Once an individual has been trained in all of the tasks his or her job
entails the task training form is returned to the company’s office, but until
then, it is kept at the job site. Tr. 306; See also Tr. 330-31.

[25] SCH is a coal
handling facility and the training Burnham received was coal facility specific.
Tr. 392-93. Burnham was hired by SCH as a newly employed inexperienced miner.
Tr. 393. He worked for SCH for three months before he was hired by Hunter. Id.

[26] Although Stone
testified that “typically” ice melt was kept on a dredge, there was no salt or
other ice melt on Dredge IV when Burnham disappeared, even though Stone agreed
there likely was ice on the dredge. Tr. 390, Tr. 397-98, 411.

[27] The temperature
during the shift Burnham worked on December 9 and 10 was 29 degrees Fahrenheit
at the start of the shift. By 11:00 p.m. on December 9, it fell to 26 degrees.  Tr.
327; see also Hunter Exh. 7. By 3:00 a.m. on December 10, the
temperature was 24 degrees. Tr. 328; Hunter Exh. 8.

[28] However, the
site specific training given by Stone consisted solely of class room type
training. Douglas is the person who actually supervised Burnham’s carrying out
of the various tasks for which he was trained. Tr. 391-92.

[29] Stone was so
impressed by the film he reduced its contests to a written outline and every
newly hired miner, including Burnham, was given a copy of the outline to keep
and review. Tr. 355, 366; Hunter Exh. 17. Stone also added his own comments to
the outline. Tr. 357-58. The comments included the danger posed by wet and icy
decks and a reminder of the importance of wearing life jackets. Tr. 358-59;
Hunter Exh. 17.

[30] A “stand-down”
is when an unusual event occurs, for example, when there is exceptionally high
water on the river. If the event affects working conditions, a special safety
meeting is held to discuss the condition and to review the safety measures
employees should take. Stone stated that during a stand-down safety meeting
involving high water, “[W]e admonished everyone to wear their life jackets, to
move slowly and deliberately, [and to] use the buddy system. And we outlined a
great many guidelines that we’d like them to follow during periods of
extraordinary high water, citing to them in these circumstances -- you’re not
allowed to make a mistake.” Tr. 311.

[31] Stone explained
that if an employee falls off a dredge or barge and is pulled under the vessel,
“wearing a life jacket will not save [him or her].” Tr. 341. In addition, if an
employee is carrying heavy equipment and becomes trapped by the equipment, the
employee may be pulled under despite his or her life jacket. Id. Another
problem as described by Stone is that even with a life jacket on, when a person
falls and hits the water, his or her arms tend to be extended upward, and the
life jacket may “ride up” on the person’s body, slip over the person’s head and
become free, in which case the person finds himself or herself in the river
without a means to stay afloat. Tr. 360. Nonetheless and despite the fact that
life jackets do not provide fool proof protection, Hunter’s training film
emphasizes the necessity of wearing a life jacket at all times when there is a
danger of falling into the river. Tr. 341.

[32] When asked if
he also saw a life jacket, Story responded, “What appeared could have been a
life jacket, but I can’t say definitely it was a life jacket, just the shoulder
section.” Tr. 447.

[33] However,
somewhat contradictorily, Fairfield also agreed that walking on a snow covered
walkway was more dangerous than walking on a clear walkway. Tr. 480.

[34] Burnham did not
notify Fairfield that he intended to cross to the barge. Tr. 478. However, five
or ten minutes before seeing Burnham, Fairfield heard a radio instruction
issued to Burnham to take a draft reading. Tr. 482-83.

[35] The alleged
violation was abated on December 10 after the accident but later in the day
after the temperature rose above freezing. In a section of the citation titled
“Termination Action,” the inspector wrote, “On December 10, 2013 at 15:37 hours
[3:37 p.m.], the barge walkway was observed cleared of snow and ice eliminating
exposure to the hazards.” Gov’t Exh. 9 at 1.

[36] The American
Heritage Dictionary of The English Language , Fourth Edition, Houghton
Mifflin Harcourt (2009) at 1471.

[37] Stone estimated
the barge was approximately 16 degrees out of level when Burnham disappeared.
Tr. 409.

[38] Only
instructing a deck hand to walk slowly, to take short steps and to walk flat
footed was clearly inadequate under the circumstances.

[39] Story and
Fairfield, eyewitnesses to what was almost certainly Burnham being swept
downriver, could not say for certain whether he was or was not wearing a life
jacket. Tr. 447, 477.

[40] The court
accepts as circumstantial facts that the light seen by both Fairfield and Story
was the light from Burnham’s cap lamp and the part of an arm from the elbow to
the shoulder seen by Story was part of Burnham’s arm. Tr. 434-36; 474-78. In
other words, the court accepts that it was Burnham who was in the water.

[41] Hunter claims
that it did informally inspect the barge for hazardous conditions, but that it
could not perform a “formal on-shift examination” because the barge arrived at
Dredge IV “nearly 6 hours after the . . . shift began.” Hunter Br. 37. The
court finds this informal inspection to be insufficient. Given that the barge
was present at the mine long enough for sand to be loaded onto it and for
Burnham to attempt to take a draft reading, there was ample opportunity for the
company to perform a formal on-shift examination before Burnham performed his
assigned task.

[42] Payment shall
be sent to the Mine Safety and Health Administration, U.S. Department of Labor,
Payment Office, P.O. Box 790390, St. Louis, MO   63179-0390.