Secretary of Labor v. Kentucky Fuel Corporation

Plain-English summary

An MSHA inspector at Kentucky Fuel's Bevins Branch Surface Mine in Kentucky found large loose boulders sitting on top of a 70-foot highwall while two end loaders worked below, and cited the company for failing to strip loose hazardous material under 30 C.F.R. § 77.1001. At a second pit he found a 300-foot highwall that was cracked and shattered because it had not been pre-split, which the mine's own ground control plan required, and cited that under 30 C.F.R. § 77.1000. Judge William S. Steele credited the inspector over the company's two witnesses, neither of whom was at the mine that day. He rejected the argument that no highwall existed, noting the standard covers loose material atop a pit or a highwall either way, and rejected the claim that pre-splitting was optional, since the plan listed it as the first blast and the company's own safety director testified pre-split shots cannot follow production shots. He also held the mine's only certified blaster was an agent whose admission that everyone knew the wall should have been pre-split was chargeable to the company. Both citations were affirmed as significant and substantial with high negligence, the unwarrantable failure finding on the ground control citation stood, and the special assessments totaling $15,400 were upheld.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1001 and 77.1000
• Outcome: Both citations affirmed in all respects, including S&S, high negligence, unwarrantable failure on Citation No. 8195670, and special assessments of $6,800 and $8,600.
• Key point: A ground control plan is binding as written; running short of blasting supplies does not excuse skipping a required pre-split, and the certified blaster's knowledge is the operator's knowledge.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE
ROAD

PITTSBURGH, PA
15220

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

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

KENTUCKY
FUEL CORPORATION,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2014-706

A.C.
No. 15-18363-356746

Mine:
Bevins Branch Surface Mine

DECISION AND
ORDER

Appearances:               C.
Renita Hollins, Esq., U.S. Department of Labor, Office of the Solicitor, Nashville,
TN, for the Secretary

James F. Bowman,
Representative, Midway, WV, for the Respondent

Before:                                    Judge
Steele

I.          Statement of the Case

This
proceeding is before me upon a petition for assessment of civil penalties under    
§ 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d).  Following an
inspection of Respondent’s mine, an MSHA inspector issued Citation No. 8195668
for Respondent’s failure to safely strip the highwall in violation of 30 C.F.R.
§ 77.1001. Additionally, the inspector issued Citation No. 8195670 for the
Respondent’s failure to follow a ground control plan for the safe control of a
highwall in violation of 30 C.F.R. § 77.1000. A hearing was held in South Charleston,
WV on March 14, 2016. At hearing, the Respondent contested both citations, all
of the designations for the citations, and the special assessments.

This Court affirms Citation
Nos. 8195668 and 8195670 in all respects, including the special assessment penalties
totaling $15,400.00.

II.        Procedural History

On March 17,
2014, a 104(d)(1) citation and a 104(a) citation were issued at Kentucky Fuel
Corporation (“Respondent” or “Kentucky Fuel”), Bevins Branch Surface Mine. On
March 14, 2016, a hearing was held in South Charleston, WV. After the hearing,
the parties submitted Post Hearing Briefs, which have been fully considered.

III.       Stipulations

The parties submitted stipulations in
their prehearing reports. The following stipulations were submitted
individually by both parties and will be treated as joint stipulations.

1.         Jurisdiction
exists because Kentucky Fuel is an operator of a mine as defined in section
3(d) of the Mine Act, 30 U.S.C. § 802(D), and the products of the subject mine
entered into the stream of commerce or the operations or products thereof
affected commerce within the meaning and scope of section 4 of the Mine Act, 30
U.S.C. § 803.

2.         The administrative law judge
has authority to hear this case and issue a decision.

3.         The
proposed penalty will not affect Kentucky Fuel Corporation’s ability to remain
in business.[1]

4.         A
copy of Citations 8195668 and 8195670 were served on Kentucky Fuel Corporation,
by a duly authorized representative of the Secretary.

5.         Respondent
operates Bevins Branch Surface mine, Mine Identification Number 15-18363.

6.         Bevins Branch Surface Mine
produced 366,025 tons of coal in 2013.

7.         Respondent abated the
citations involved herein in a timely manner and in good faith.

Sec’y Prehearing Rep. 1-2; Resp’t Prehearing
Rep. 3-4.[2]

IV.       Findings of Fact and
Conclusions of Law

The findings of fact are based on the
record as a whole. In resolving any conflicts in the testimony, I have taken
into consideration the interests of the witnesses, or lack thereof, and consistencies,
or inconsistencies, in each witness’s testimony and between the testimonies of
the witnesses. In evaluating the testimony of each witness, I have also relied
on his demeanor. Any failure to provide detail as to each witness’s testimony
is not to be deemed a failure on my part to have fully considered it. The fact
that some evidence is not discussed does not indicate that it was not
considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir.
2000)(Administrative Law Judge is not required to discuss all evidence and
failure to cite specific evidence does not mean it was not considered).

On March 17,
2014, MSHA Inspector Brian K. Robinson arrived at Bevins Branch Surface Mine
and notified the supervisor and foreman that he was on the job site to perform
an inspection. (Tr. 27-28). While at the mine, Inspector Robinson drove into
the mid-level right side contour pit area and made visual observation of the
site. (Tr. 28-29). While there, he observed large boulders that were loose at
the top of the highwall, in violation of § 77.1001. (Tr. 29). The wall was
measured to be 70 feet at the highest point by a Trupulse Rangefinder, which
Inspector Robinson calibrated and has used frequently in the past. (Tr. 45). Inspector
Robinson further testified that two 993K end loaders were loading the 777 model
rock trucks from underneath the highwall. (Tr. 29, 31). The end loaders had a
reach of 30ft. (Tr. 66). The rock trucks transported material to a different
location, where the trucks were emptied, to uncover the mined coal. (Tr. 29).

Subsequently, Inspector
Robinson issued Citation No. 8195668 for a violation of       § 77.1001. (Tr.
30). While conducting his inspection, Robinson spoke with a foreman, William
Bevins, who indicated that he knew the inspector would not approve of the
highwall condition and that he was planning to send over an excavator to fix
the condition. (Tr. 38). This violation was designated as Significant and
Substantial (“S&S”) and reasonably likely to cause a permanently disabling
injury to one miner, with high negligence.[3]
(Tr. 39-41). A special assessment was also issued for this violation. (Sec’y
Ex-P1). [4]
 This condition was terminated by the loose material being broken down with a
bulldozer and an excavator. (Tr. 43).

After issuing
Citation No. 8195668, Inspector Robinson continued his inspection by travelling
to the lower active coal pit. (GX-P2, P3). There he saw the highwalls were shattered
and cracked, exposing rocks that were not properly scaled.[5] (Tr. 93-94,
107-09). This condition was visible along the entire 300-foot length of the
wall, and Inspector Robinson believed this created a risk of crushing injuries
to miners. (Tr. 107-09; GX-P2, P3). Inspector Robinson testified that he observed
miners on foot and miners working in end loaders directly next to the highwall.
(Tr. 105-06). Inspector Robinson estimated this condition to have existed three
to four days because of the extensive length of the condition across the wall. (Tr.
110-11).

Inspector
Robinson also testified that he had a discussion with the only certified
blaster at the mine, Josh Matheny.[6]
(Tr. 90-92). During this conversation, Inspector Robinson asked Matheny if he
knew that the wall was supposed to be pre-split according to the ground control
plan. (Tr. 91-92; PX-6). According to Inspector Robinson, Matheny conceded that
everyone knew that the wall needed to be pre-split, but that there were
insufficient ammonium nitrate and fuel oil (ANFO) and gas bags for
pre-splitting. (Tr. 92). Further, Inspector Robinson testified that the ground
control plan requires “[i]f highwalls are pre-split the slope will be greater
than ninety degrees. If highwalls are not pre-split the slope will be
one-hundred and ten degrees for cast blasting.” (Tr. 100; GX-P6). No evidence
was brought forward that cast blasting was used at the mine, and Inspector
Robinson testified that “it was obvious [the highwall] was 90-plus” degrees. (Tr.
119).

As a result of
this conversation with Matheny, his observations, and the ground control plan requirements,
Inspector Robinson issued Citation No. 8195670 for failing to follow the ground
control plan in violation of § 77.1000. (Tr. 91-92). This violation was designated
Significant and Substantial (“S&S”), reasonably likely to cause a
permanently disabling injury to one miner, with high negligence and an
unwarrantable failure. (Tr. 106-12). This violation was also specially assessed
because Inspector Robinson wanted to “get [Respondent’s] attention”, so that it
would comply with highwall safety requirements. (Tr. 113-14).

Mark Wooten, a
licensed professional engineer for Premium Coal Company, Inc, (“Premium Coal”)
testified about his knowledge of ground control plans.[7] (Tr. 148). He
testified that he worked with Mr. Smith, who created the ground control plan at
issue.[8]
(Tr. 149). After reviewing the ground control plan, which has a blasting plan, Wooten
testified that it wouldn’t be possible to know whether to pre-split a highwall until
after the production shots. (Tr. 159-60). He testified that pre-splitting was
not required because on the blasting plan in the notes section it states that
“[p]re-split holes are to be utilized as conditions dictate.” (Tr. 158-60; GX-P6,
9). Additionally, Wooten testified that the blasting plan indicates the first
step in production shot blasting was to pre-split. (Tr. 170; See GX-P5).
Wooten testified that the blasting plan shows an example of the order in which
production shots and pre-splitting may occur. (Tr. 179-181). He stated that the
lines were not necessarily shot sequentially; however, the blasting plan was
annotated sequentially, and “pre-split line” was labeled “1st.” (Tr. 170-72; See
GX-P6). He also testified that he was unaware if cast blasting was ever used at
Bevins Branch Surface Mine as an alternative to production shot blasting. (173-74).

Wooten further
testified that a jagged wall with protruding rocks does not necessarily indicate
a highwall is unsafe. (Tr. 175). But Wooten did agree in his testimony that the
ground control plan was developed to ensure safety while blasting. (Tr. 178).

Mark Huffman,
the Director of Health Safety and Human Resources for Bluestone Industries,
worked at Kentucky Fuel in March 2014, when the citations in this proceeding
were issued.[9]
 (Tr. 181-84). He testified that pre-split shots could not be blasted after the
production shots, and that cast blasting was not used at the time the citation
was issued. (Tr. 198). When the citations were issued on March 17, 2014, he was
not at Bevins Branch Surface Mine, and he did not view the highwall until one
or two days later. (Tr. 212-13). At that time, he believed the wall involved in
Citation No. 8195668 to be approximately 50 feet high. (Tr. 191).

V.        Contentions of the Parties

The Secretary
contends that Respondent violated § 77.1001 in Citation No. 8195668 and that
the citation was S&S, reasonably likely to result in a permanently
disabling injury to one miner, and the operator acted with high negligence. (Sec’y
Br. at 2). The Respondent argues that it did not violate § 77.1001 and contests
all of the Secretary’s designations and the special assessment. (Resp’t Br. at
5-11). Respondent argues it did not violate § 77.1001 because there was no
highwall, instead only shot overburden, and there was a bench, which it argues
indicates that the wall was properly stripped for safety. (Resp’t Br. at 5-8). Additionally,
Respondent contends that the violation was not S&S because the boulders
were not likely to reach the miners working in end loaders below and cause an
injury. (Id. at 9-10). Respondent also argues that it was not highly
negligent because the foreman’s comments indicating he was directing a rock
truck and excavator to fix the condition was not an admittance of aggravated
conduct, but rather an additional precaution. (Id. at 10).

Further, the Secretary
contends that Respondent violated § 77.1000 in Citation No. 8195670 and that
the citation was S&S, reasonably likely to result in a permanently
disabling injury to one miner, with an unwarrantable failure and high
negligence. (Sec’y Br. at 3). Respondent argues that it did not violate § 77.1000
and disagrees with all of the designations and the special assessment. (Resp’t
Br. 11-16). Respondent contends that the ground control plan was open to
interpretation and there was no evidence that the wall was not pre-split. (Id.
at 11-13). Further, Respondent argues the violation was not S&S because the
wall was not unsafe even if it was jagged. (Id. at 14). The Respondent
argues the operator was not highly negligent because the blaster that the
inspector spoke to was not an agent of the operator. (Id. at 14-15). Also,
Respondent argues the special assessment is not appropriate because it was
merely issued to be punitive, which is unreasonable and speculative. (Id.
at 16).

VI.       Discussion

A.        Burden
of Proof and Standard of Proof

The
Secretary bears the burden of proof by a preponderance of the evidence for Mine
Act violations.[10] Jim
Walter Res., Inc., 28 FMSHRC 983, 992 (Dec. 2006); RAG Cumberland Resources,
Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Jim Walter Res., Inc., 9
FMSHRC 903, 907 (May 1987). Each element of a citation must be proven by a preponderance
of the evidence. In re: Contests of Respirable Dust Sample Alteration
Citations: Keystone Mining Corp., 17 FMSHRC 872, 878 (Aug. 2008).

The Commission has held 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.’” RAG Cumberland Resources
Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), quoting Concrete Pipe
& Products of California, Inc. v. Constr. Laborers Pension Trust for S.
California, 508 U.S. 602, 622 (1993).

B.        Citation
No. 8195668

Citation No. 8195668 was issued
for an alleged violation of § 77.1001 which requires: “Loose hazardous material
shall be stripped for a safe distance from the top of pit or highwalls, and the
loose unconsolidated material shall be sloped to the angle of repose, or
barriers, baffle boards, screens, or other devices be provided that afford equivalent
protection.” 30 C.F.R.      § 77.1001

During Inspector Robinson’s March
17, 2014, inspection at Bevins Branch Surface Mine, he observed two 993K end
loaders working beneath a highwall at the mid-level right side contour pit.[11] (Tr. 29). Inspector
Robinson observed the end loaders working beneath the highwall that had loose
unconsolidated material and boulders on top. (Tr. 31). He wrote a     § 77.1001
citation as a result of his observations of the highwall. In section 8 of the
Citation, “Condition or Practice,” Robinson wrote: “Loose Hazardous Material is
not being stripped for a safe distance at the active Mid-Level Right Side of Contour
breakdown Pit Area Highwall… Large Boulders rest atop of this material at the
Highwall.”[12]
(GX-P1).

Inspector
Robinson testified that he observed boulders and loose material that were not
stripped from the highwall. (Tr. 31). The highwall was 70 feet high, as
measured by a Trupulse Rangefinder.[13]
(Tr. 44-46). He also observed two end loaders working beneath this highwall. (Tr.
29). The reach of the end loaders were likely only 30 feet, even though the
Respondent suggested it could ramp up 70 feet, in its questioning of Inspector
Robinson. (Tr. 66). There was no other testimony or evidence to support
Respondent’s claim regarding the reach of the end loaders. And it was clear
that the highwall could not have been safely stripped by an end loader with
only a 30-foot reach. (See Tr. 66). Inspector Robinson found this to be
dangerous because it could have resulted in loose material falling on the
miners working in the end loaders below, posing a risk of a crushing injury. Thus,
Inspector Robinson’s observation of the unsecured boulders on top of the
highwall with end loaders working below demonstrated a § 77.1001 violation.

The Respondent’s witness Wooten,
a licensed professional engineer, never saw the conditions and has no direct
knowledge to dispute Inspector Robinson’s testimony. Huffman, the Director of
Health Safety and Human Resources at the time, also did not observe the
conditions of the highwall on the day this citation was issued. As a result,
this Court finds that the Secretary has met its burden in proving that a § 77.1001
violation occurred.

1.         The
Violation was Significant and Substantial and Reasonably Likely to Result in a
Permanently Disabling Injury to One (1) Person.                                                                  

Section
104(d)(1) of the Mine Act defines Significant and Substantial (“S&S”) as a
violation “of such nature as could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or health hazard.” 30
U.S.C. § 814(d)(1). The Commission has held that a violation is S&S “if,
based on the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature.” Cement Div., Nat'l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). An S&S violation must be supported by the
circumstances surrounding the violative condition. Texasgulf, Inc., 10
FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007
(Dec. 1987).

In Mathies
the Commission set forth a four-prong test to determine a S&S violation. National
Gypsum. Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984). To prove an S&S
violation, the Secretary must show: “(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard—that is, a measure of
danger to safety—contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.”
Id. at 3-4.

Further, an
S&S determination should be analyzed in the context of “continued normal
mining operations.” McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1990-91
(citing U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). When
assuming continued mining operations, it must be considered without any
assumption of abatement. Black Beauty Coal Co., 34 FMSHRC
1733, 1740 (Aug. 2012), aff'd sub nom. Peabody Midwest Mining, LLC
v. FMSHRC, 762 F.3d 611 (7th Cir. 2014).

In the instant
case, the first prong has been satisfied as the Secretary has proven that a   §
77.1001 violation occurred due to loose and unconsolidated boulders on the
highwall. (Tr. 27).

Miners were also
using end loaders at the bottom of the wall, which had loose boulders. These
loose boulders posed a discrete safety hazard because the boulders could have
fallen and caused a crushing injury, as there were no barriers to prevent the boulders
from rolling off the wall. (See Tr. 29, 31). Therefore, the second prong
has been met because the Respondent’s failure to strip the highwall contributed
to a discrete safety hazard of loose falling boulders.

The third prong
of the test, which requires a reasonable likelihood that the hazard will result
in an injury, was also satisfied. The “Secretary need not prove a
reasonable likelihood that the violation itself will cause injury.” Musser
Engineering, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010). Instead, it is only
required that the hazard would be reasonably likely to contribute to an injury.
Consolidation Coal Co., 6 FMSHRC 189, 193 (Feb. 1984).
[14] The hazard here
was the presence of loose and falling boulders from the highwall. These loose
boulders could easily have fallen onto a miner and cause a serious injury to
miners working below.

The injury that
could have occured from a rock or other material falling from a 70-foot
highwall was a crushing injury. (Tr. 40). A crushing injury could permanently
disable or even potentially kill an individual. Therefore, the fourth prong has
been demonstrated because it was reasonably likely that a serious crushing
injury could occur from a highwall with loose material that was not barricaded.
Consequently, all four prongs of the Mathies test have been proven by
the Secretary, and the S&S designation for Citation No. 8195668 is
affirmed.

The gravity
analysis focuses on factors such as the likelihood of an injury, the severity
of an injury, and the number of miners potentially injured. For Citation No. 8195668,
the gravity was reasonably likely to result in a permanently disabling injury to
one miner. (GX-P1). The injury to one miner has been demonstrated because
Inspector Robinson testified that he saw miners working in end loaders below
the highwall, where rocks could have fallen on them.  (Tr. 29, 31). This
violation involved a highwall with loose unconsolidated material that could
have fallen on a miner below. (GX-P1). The wall was approximately 70 feet high,
and a large boulder falling from that height could cause a serious crushing
injury that could permanently disable an individual. (Tr. 40). Thus, the
gravity of reasonably likely to result in a permanently disabling injury to one
person is also affirmed.

2.         The Violation
was the Result of High Negligence.

Negligence is
not defined in the Mine Act. MSHA regulations provide that violative conduct is
properly designated as “high negligence” when “the operator knew or should have
known of a violative condition or practice, and there are no mitigating
circumstances.” 30 C.F.R. § 100.3(d), Table X. The Commission has held that
Administrative Law Judges are not required to apply the Part 100 negligence
definition and may instead use a traditional negligence analysis. Brody
Mining, LLC, 37 FMSHRC 1687, 1703 (Aug. 2015); accord Mach
Mining, LLC, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). Additionally, “Commission
judges… may find ‘high negligence’ in spite of mitigating circumstances, or
moderate negligence, without identifying mitigating circumstances.” Brody,
37 FMSHRC at 1702-03; Mach Mining, 809 F.3d at 1263-64. High negligence
is “‘…an aggravated lack of care that is more than ordinary negligence.’” Brody,
37 FMSHRC at 1703, citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr.
1998). Accordingly “a Commission judge… may consider the totality of the
circumstances holistically.” Brody, 37 FMSHRC at 1702. An operator
is negligent if it fails to meet the requisite high standard of care under the
Mine Act. Id.

The negligence
for this citation was properly assessed as high. (Tr. 41; GX-P1). Section
77.1001 requires that loose and hazardous material be stripped from mine walls,
sloped to the angle of repose or barricaded to protect miners from injury. Respondent
did not meet this high standard of care by allowing loose unconsolidated
material and boulders to remain unsecured on the highwall. (Tr. 29). This
created a risk for any miner working underneath the highwall. Moreover,
Inspector Robinson testified that the foreman admitted that he knew the
highwall was not in good condition and that MSHA was not going to be satisfied
with the safety measures implemented at the highwall. (Tr. 38). Additionally,
there was no evidence of mitigating circumstances brought forth at hearing. The
Respondent showed an aggravated lack of care when it knowingly allowed the
condition to persist, but failed to abate it until an MSHA inspector was on
site. (See Tr. 38). Consequently, the high negligence evaluation is
affirmed.

C.        Citation
No. 8195670

Citation No.
8195670 was issued for a violation of § 77.1000. Under § 77.1000, it is
required that “[e]ach operator shall establish and follow a ground control plan
for the safe control of all highwalls, pits and spoil banks to be developed
after June 30, 1971, which shall be consistent with prudent engineering design
and will insure safe working conditions. The mining methods employed by the
operator shall be selected to insure highwall and spoil bank stability.” 30
C.F.R. § 77.1000.

This citation
was issued by Inspector Robinson after he observed that a highwall in the lower
active coal pit on the right contour was not pre-split as required by the
Respondent’s ground control plan. (GX-P3). Specifically, Inspector Robinson
spoke with the certified mine blaster Matheny who said that the highwall was
not pre-split because he did not have adequate materials. (Tr. 92). Neither party
has disputed that the highwall was not pre-split at hearing.[15] The ground
control plan on page nine shows the Blasting Plan, which lists the first blast
as the pre-split line. (GX-P6). Additionally, page four of the Blasting Plan describes
in the notes section that in the lower level coal seams, highwalls will be
pre-split with a slope greater than 90 degrees and do not need to be pre-split
for cast blasting at 110 degrees.[16]
(GX-P6). According to Inspector Robinson, the highwall was greater than 90
degrees, but not 110 degrees. (Tr. 100, 119). Inspector Robinson, Wooten, and
Huffman all testified that the mine did not use cast blasting, or they were
unaware that cast blasting was used, at the time the citation was issued. (Tr.
100, 173-74, 228). Thus, no evidence was brought forward that cast blasting was
used on this highwall. Therefore, Inspector Robinson concluded that the wall was
required to be pre-split, and it was evident to him via visual observation that
it had not been pre-split as required. (GX-P 4). The certified blaster also
agreed the wall was not pre-split. (Tr. 92).

Further, neither
of the Respondent’s witnesses was present when this citation was issued, so
they did not have direct knowledge of whether or not the highwall was
pre-split. Moreover, Huffman, the Director of Health Safety and Human Resources
testified that pre-split shots could not be blasted after the production shots.
(Tr. 198). Thus, any argument that the pre-splitting could have been performed
after the production shots does not hold weight. Since pre-splitting was
required by the ground control plan, and the operator failed to pre-split the
highwall at issue, the Respondent failed to follow the ground control plan in
violation of § 77.1000. (See GX-P3).

Due to the
Inspector’s observations, his testimony concerning his conversation with the
certified blaster Matheny, and Huffman’s testimony that pre-split shots must be
performed first when blasting, I find that the Secretary has met its burden of
proving a violation for Citation No. 8195670.

1.         The
Violation was S&S and Reasonably Likely to Result in a Permanently
Disabling Injury to One (1) Person.                                                                  

Inspector
Robinson assessed this violation as S&S. (GX-P3). Under Mathies, the
first prong was satisfied as there was a § 77.1000 violation when the
Respondent failed to follow the ground control plan requirement of
pre-splitting the highwall at issue. See discussion supra.

The second prong
was also satisfied as the failure to follow the ground control plan for safety
contributed to a discrete safety hazard of large rocks falling onto miners. The
failure to pre-split as required by the ground control plan created cracks, and
holes in the wall allowing for large rocks to protrude from the highwall. (Tr.
107-09).

Beneath the
highwall, Inspector Robinson observed an end loader loading coal haulage trucks
and blasters on foot loading holes for blasting along the wall. (Tr. 105-06). Therefore,
the third prong has been met because there was a reasonable likelihood that a
rock falling from a large 300-foot long highwall onto a blaster or a machine
operator would have caused a crushing injury. (Tr. 105-06). The miners below were
not adequately protected from the risk of rocks falling on them. This condition
was reasonably likely to cause an injury of a reasonably serious nature as
boulders falling from a highwall onto an individual’s head, arms, or legs could
crush organs and permanently disable someone, which satisfied the fourth prong.
As a result, Inspector Robinson properly found Citation No. 8195670 to be
S&S.

Respondent attempts to
argue, with the support of Wooten’s testimony, that a jagged wall that was not
pre-split may be safe. (Tr. 175; Resp’t Br. at 14). However, I find this
testimony to lack credibility when there was a ground control plan that
requires pre-splitting for safety. (GX-P6). Moreover, it is axiomatic that a
wall with protruding rocks, whether loose or not, is more likely to cause an
injury than a smooth wall.

The gravity
assessed here was reasonably likely to cause a permanently disabling injury to
one miner. Inspector Robinson testified that a highwall must be pre-split to
make a safer smoother wall for miners who work in close proximity to the wall. (Tr.
103). Pre-splitting the wall was a safety mechanism that was required by the ground
control plan. (GX-P6). Respondent’s witness Wooten agreed in his testimony that
the ground control plan was developed to ensure safety while blasting. (Tr.
178). Inspector Robinson testified that without pre-splitting, it was more
likely that large rocks from the wall could fall and hit people working below. (Tr.
107). This could crush a miner’s arm or leg, which could permanently disable an
individual. (Tr. 107). At any time, there could be two blasters, a spotter, and
coal loaders working beneath a highwall. (Tr. 107-08). Therefore, Inspector
Robinson said the risk of injury could be to one person because the rocks would
likely only be able to hit one person at a time. (Tr. 108). Due to the risk of
a large rocks falling from a 300-foot long wall with cracks and holes in it,
which could result in serious crushing injuries to an individual, I affirm the
gravity of reasonably likely to result in a permanently disabling injury to one
person.

2.         The Violation
was the Result of High Negligence.

Inspector
Robinson determined that the negligence for this citation should be evaluated
as high. (Tr. 111). The Respondent’s ground control plan required a highwall to
have a slope of 90-plus or 110 degrees. (GX-P6). In the notes on the ground
control plan, it stated that highwalls greater than 90 degrees will be
pre-split and highwalls greater than 110 degrees will be cast blasted. (Id.).
 Inspector Robinson testified that the wall was 90-plus degrees, not 110, and
required pre-splitting. (Tr. 110, 19).

Furthermore, Inspector
Robinson had a conversation with the Respondent’s certified blaster Matheny who
conceded that the wall should have been pre-split and that he did not have
adequate materials to properly pre-split the wall.[17] (Tr. 111).
 This conversation with the blaster indicates that the Respondent knew the
reasonable standard of care in highwall blasting to create the safest working environment
for miners. (See id.). Hence, the Respondent failed to exercise
the requisite high standard of care required under § 77.1001. This demonstrates
an aggravated lack of care by the Respondent.

Respondent made an argument
that Matheny was not an agent of the operator, and therefore, his negligence
cannot be attributed to the Respondent. (Resp’t Br. at 14-15).

Section 3(e) of the Mine Act defines an “agent” as “any person charged with
responsibility for the operation of all or a part of a … mine or the supervision
of the miners in a … mine[.]” 30 U.S.C. § 802(e). The Commission has held
that “the negligence of an operator's ‘agent’ is imputable to
the operator for penalty assessment and unwarrantable failure purposes.” Nelson
Quarries Inc., 31 FMSHRC 318, 328 (Mar. 2009) citing Whayne
Supply Co., 19 FMSHRC 447, 451 (Mar. 1997); Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194-97 (Feb. 1991); Southern Ohio
Coal Co., 4 FMSHRC 1459, 1463-64 (Aug. 1982). The Commission has held that
“[it] consider[s] factors such as the ability of the employee to direct the
workforce, whether the employee holds himself out as a person with supervisory
responsibilities and is so regarded by other miners, and whether the actions of
the employee in directing the workforce have an impact on health and safety at
the mine.” Nelson Quarries Inc., 31 FMSHRC 318, 328 (Mar. 2009) citing Ambrosia,
18 FMSHRC at 1553-54, 1560-61; Sec'y of Labor on behalf of Hyles
v. All American Asphalt, 21 FMSHRC 119, 130 (Feb. 1999) (holding that
leadmen who acted in a supervisory capacity and were in a position to affect
safety were agents of the operator to whom employees would logically voice
their complaints).

Matheny was the
only person allowed to blast at the mine because he was the only certified
blaster on site. (Tr. 90, 103-04).  He directed the workforce in blasting, and
his control over mine blasting had a direct impact on the safety at the mine. (Tr.
90-92). Therefore, he acted as an agent, and his knowledge of the condition can
be imputed to Kentucky Fuel. Accordingly, Respondent’s argument that the
blaster’s knowledge cannot be imputed on the Operator does not hold weight, and
the high negligence evaluation is affirmed.

3.         This
Violation was the Result of an Unwarrantable Failure.

The Commission has determined that an
“unwarrantable failure is aggravated conduct constituting more than ordinary
negligence.” Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013). An
unwarrantable failure can be demonstrated by a reckless disregard, intentional
misconduct, indifference, or a serious lack of reasonable care. Emery Mining
Corp., 9 FMSHRC 1997, 2003-04 (Dec. 1987).

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

Manalapan
Mining Co.,
35 FMSHRC at 293. All of the relevant Manalapan Mining factors, the
facts and circumstances of the case, and any mitigating circumstances must be
considered by this Court. IO Coal Co., Inc., 31 FMSHRC 1346, 1351 (Dec.
2009).

i.          The Extent
of the Violative Condition and the Length of the Time that the Violative Condition
Existed

The highwall was
hazardous, and it extended 300 feet. (Tr. 108-09). Inspector Robinson testified
that the absence of pre-splitting at the highwall had existed three to four
days. (Tr.110-11). He made this finding based on the holes and the size of the
area that had been drilled. (Tr. 110-11). Thus, the loose material along the 300-foot
wall and the length of time the condition existed weigh against the Respondent.

ii.         The Obviousness
of the Condition and Whether the Condition Posed a High Degree of Danger

The inspector
observed that there were holes drilled and that the wall was not pre-split,
which demonstrate the obviousness of the condition. (Tr. 109). This posed a
high degree of danger because the failure to pre-split the wall resulted in
loose material, which could have created the risk of crushing injuries. (Tr.
107). There were loose rocks, holes in the wall, and cracks which could have
easily created a hazard of a rock or other debris falling from a highwall onto
a miner working in an end loader below. (Tr. 93-94, 107-09). Therefore, the
condition was obvious, and it posed a high risk to miners working below.

iii.        The
Operator’s Knowledge of the Condition

Inspector
Robinson spoke with the certified blaster Matheny who conceded that everyone
knew that pre-splitting was required. (Tr. 91-92). Additionally, the ground
control plan, which the operator was required to create and submit to MSHA for
acknowledgement, requires pre-splitting. (See Tr. 150-51). Therefore, I
find that the Respondent knew or should have known that pre-splitting was not
being used according to the ground control plan because the condition could have
been readily observed. (See Tr. 109).

iv.        The
Operator’s Efforts in Abating the Condition

Respondent did
not attempt to abate the condition until after it knew the MSHA inspector was
on site. (Tr. 91-92; GX-P3). There was no evidence brought forward by the
Respondent demonstrating an attempt to correct condition prior to issuance of
the violation.

v.         The
Operator’s Notice that Greater Efforts were Necessary for Compliance

The certified
blaster admitted that everyone knew the highwalls were meant to be pre-split. (Tr.
91-92). However, he stated he did not have the proper materials to properly
blast the highwall. (See id.). The Operator also had the ground control
plan, which provides notice of blasting requirements. (GX-P6). As a result, the
Operator had notice that there should have been greater efforts to comply with
the ground control plan.

Consequently,
when considering all of the Manalapan Mining factors, the operator
demonstrated the requisite aggravated conduct for an unwarrantable failure. All
of the factors weigh against the Operator and demonstrate a serious lack of
reasonable care to comply with the pre-splitting requirement in the ground
control plan. (See GX-P6). Therefore, I affirm the unwarrantable failure
designation for Citation No. 8195670.

VII.     Special Assessments

Under 30 C.F.R.
§ 100.5 “(a) MSHA may elect to waive the regular assessment under   § 100.3 if
it determines that conditions warrant a special assessment. (b) when MSHA
determines that a special assessment is appropriate, the proposed penalty will
be based on the six criteria set forth in § 100.3(a). All findings shall be in
narrative form.” The civil penalty under § 100.3 is based on the criteria set
for the in § 110(i) of the Mine Act. This section provides:

In assessing
civil monetary penalties, the Commission shall consider the operator's history
of previous violations, the appropriateness of such penalty to the size of the
business of the operator charged, whether the operator was negligent, the
effect on the operator's ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the person charged in attempting
to achieve rapid compliance after notification of a violation. In proposing
civil penalties under this chapter, the Secretary may rely upon a summary
review of the information available to him and shall not be required to make
findings of fact concerning the above factors.

30 U.S.C. § 802(i).

The Respondent
was a large operator that produced 366,025 tons of coal in 2013 and had four § 77.1001
violations in the 18 months preceding the issuance of Citation No. 8195668.
(Stip. 6).  For this citation, Respondent was highly negligent as the highwall
was not properly stripped, and the foreman told Inspector Robinson that he knew
about the condition, but nothing was done to abate it. The parties stipulated
that these penalties will not affect the Operator’s ability to remain in
business. (Stip. 3). This citation was hazardous because of the loose unconsolidated
material on the highwalls. Therefore, this Court affirmed the designations of S&S
and reasonably likely to cause a permanently disabling injury to one miner. While
there was good-faith abatement in a reasonable amount of time, the remaining
statutory criteria weigh heavily against the Respondent. (Stip. 7). Accordingly,
the Secretary’s special assessment of $6,800.00 is affirmed.

Given that the
violative conduct in Citation No. 8195670 has been assessed as S&S and
reasonably likely to result in a permanently disabling injury to one miner, and
the high negligence and unwarrantable failure findings, and having considered
all of the statutory criteria in § 110(i), this Court finds the Secretary’s
originally assessed penalty to be appropriate. (GX-P3). Additionally, as the
same circumstances involving the mine size, ability to remain in business,
gravity, and compliance apply to this order, the proposed civil penalty of $8,600.00
is affirmed.

Inspector Robinson issued
these special assessments to deter the Respondent from continuing to knowingly
violate highwall safety standards. The admission of knowledge by a foreman and
the certified blaster of the respective violations at issue demonstrate an
aggravated lack of care. This knowledge of wrongdoing, yet indifference to safety
standards, poses a high risk of injury to miners, especially because the
violations at issue involve extensive safety standards.

VIII.    Conclusion

For the
foregoing reasons Citation No. 8195668 and Citation No. 8195670 will be affirmed
with all proposed designations. Consequently, it is ORDERED that
Respondent pay the Secretary of Labor the sum of $15,400.00 within 30 days of
the date of this Decision.[18]
Upon receipt of payment, this case is hereby DISMISSED.

/s/ William S.
Steele

William S.
Steele

Administrative
Law Judge

Distribution:
(Certified Mail)

C. Renita Hollins, Esq., Office of the
Solicitor, U.S. Department of Labor, 211 7th Avenue North,
Nashville, TN 37219

James F. Bowman, Kentucky Fuel
Corporation, P.O. Box 99, Midway, WV 25878

[1] This
stipulation was agreed to by both parties in their prehearing reports. Sec’y
Prehearing Rep. 1-2; Resp’t Prehearing Rep. 3-4.[1]
Thus, the error in the transcript suggesting the proposed penalty might affect
Kentucky Fuel’s ability to remain in business will be disregarded. (See
Tr. 5).

[2] Stipulations
will hereinafter be cited to as Stip. followed by the stipulation number.

[3] The Secretary’s
Post Hearing Brief and Citation No. 8195668 do not indicate this citation has
an unwarrantable failure designation. Therefore, the Inspector’s reference in
his testimony to this citation being assessed with an unwarrantable failure and
the Respondent’s Post Hearing Brief opposing an unwarrantable failure
designation appear to be in error. (See Tr. 40).

[4] The Secretary’s
exhibits will hereinafter be designated as GX followed by the exhibit number,
which in this case is P followed by a number.

[5] The conditions
for this citation were related to Citation No. 8195669 (not at issue in this
proceeding), which involved the same 300-foot highwall. (Tr. 93).

[6] Inspector
Robinson first testified that the blaster he spoke with was John Matheny, but
subsequently stated that the blaster’s name was Josh Matheny, and Josh was used
in the rest of the testimony. (Tr. 91).

[7] In January
2015, Wooten began working for Premium Coal, which was a subsidiary of the
company that owns Kentucky Fuel Corporation and Bevins Branch Surface Mine.
(Tr. 163).

[8] A ground
control plan must be created by an operator and submitted to MSHA for
acknowledgement. (Tr. 150-51).

[9] Bluestone
Industries was an affiliated company of Kentucky Fuel Corporation. (Tr. 181).

[10]Respondent
incorrectly contends the Secretary’s burden of proof is substantial evidence.
(Resp’t Br. at 8-14). The burden for violations is by a preponderance of the
evidence.

[11] Respondent
makes the argument in its post hearing brief that this violation could not have
occurred because there was no highwall. Respondent argues that the material at
issue was shot overburden being removed. (Resp’t Br. at 7-8). I find the
distinction to be irrelevant as       § 77.1001 requires loose material to be
stripped for a safe distance from the top of a pit or a highwall. The material
at issue appears to fall under either definition of being on top of the pit or
highwall. Additionally, Inspector Robinson repeatedly testified that there was
a highwall not properly stripped, and he was the only witness who was present
on the day the violation. (Tr. 30-32). Inspector Robinson was the most credible
witness as to the condition of the mine on the day this citation was issued. As
a result, this argument that there was no violation because no highwall existed
is not convincing.

[12] Respondent
contends the material was kept at the angle of repose and that a bench was
present, preventing a § 77.1001 hazard from existing. (Resp’t Br. at 6-7).
However, Inspector Robinson testified that this citation was issued because the
highwall was not stripped for safety and that there were loose rocks that posed
a hazard to miners below. As Inspector Robinson was the only witness present
when the citation was issued, I find his testimony to be the most credible, and
I find any argument concerning a bench or angle of repose by witnesses who were
not present to observe the conditions that day to be unpersuasive.

[13] Huffman, the
Director of Safety and Human Resources, estimated the highwall to be about 50 feet
high, but as he did not view the highwall until a day or two after the citation
was issued, Inspector Robinson’s 70-foot finding with a Trupulse Rangefinder was
more credible and relevant to the citation. Inspector Robinson was trained to
use the Trupulse Rangefinder and he has successfully used it for measurement
prior to these citations being issued. (Tr. 44-46).

[14] Recent circuit
court decisions have further discussed the importance of the third prong in the
S&S analysis. See Eagle Creek Mining, LLC., 2016 WL 2956689 at *3-7
(May 2016)(ALJ)(discussing the traditional S&S analysis and the effect of
recent Fourth and Seventh Circuit decisions).

[15] While
Respondent briefly suggested in its post hearing brief that the highwall could
have been pre-split, Respondent failed to bring forward any evidence to support
a finding that the wall was indeed pre-split. (Resp’t Br. at 13). Accordingly,
I find this argument unpersuasive.

[16] On this same
page there was a handwritten note about a fireclay highwall. (GX-P6). Both
parties mention this highwall, but no evidence was brought forth as to who
wrote this note or when it was written.  Additionally, Respondent argues the
Secretary does not prove the fireclay highwall was one of the walls involved in
the violations. (Resp’t Br. at 12). However, there was no consensus as to
whether the highwall at issue was the fireclay highwall. As a result, the
validity of this handwritten note is ultimately irrelevant.

[17] Respondent
attempted to put a burden on the inspector to check purchase orders or the
blasting log to see if proper supplies existed for pre-splitting. (Tr. 135;
Resp’t Br. at 15.)  This Court finds this argument unpersuasive as it was not
significant whether the proper materials existed for this citation. Rather it
is only relevant that the material was not used in compliance with the ground
control plan and the operator was aware of it.

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