Secretary of Labor v. Kentucky Fuel Corporation

Read the official release (fmshrc.gov)

Plain-English summary

At Kentucky Fuel's Beech Creek Surface Mine, a mechanic worked beneath an unblocked grease truck and struck its starter with a hammer while another miner sat in the cab. The truck started and rolled backward about two feet, causing several broken ribs and a punctured lung; the mechanic later recovered and returned to work. Judge William S. Steele affirmed the admitted violation of 30 C.F.R. § 77.404(c), found it significant and substantial with a fatal injury reasonably likely, and upheld high negligence because the operator's blocking materials, training, supervision, and truck condition fell short. After MSHA kept the truck under a section 103(k) control order, mine personnel reattached wheels and removed parts even though an earlier request to modify the order had been denied. The judge affirmed that violation as reckless disregard, finding that personnel knew the modification process and did the work anyway. He assessed $52,500 for the blocking violation and $3,000 for violating the control order, for a total of $55,500. The Commission later directed review only of the high-negligence finding on the blocking citation and affirmed it.

Decision snapshot

• Cited standard and order: 30 C.F.R. § 77.404(c) and the control authority in 30 U.S.C. § 813(k)
• Outcome: Citation Nos. 8299655 and 8299679 were affirmed as issued, and total penalties of $55,500 were assessed.
• Subsequent review: The Commission affirmed the high-negligence finding for Citation No. 8299655 in kent-2015-383-commission.
• Key point: High negligence may rest on inadequate blocking materials, training, and supervision even when a rank-and-file mechanic commits the immediate violation.

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 Nos. KENT 2015-383

A.C. No. 15-19475-375208

Mine: Beech Creek Surface Mine

DECISION AND ORDER

Appearances:
              Thomas J. Motzny, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, Tennessee, for Petitioner

James F.
Bowman, on behalf of Kentucky Fuel Corporation, Midway, West Virginia, for
Respondent

Before:                        Judge
William S. Steele

I.                   
Statement of the
Case

This case concerns an injury
related to an alleged violation of 30 C.F.R. § 77.404(c), as well as the violation
of an associated 30 U.S.C. 813(k) Order. The case was the subject of a May 18,
2016 hearing in Pikeville, Kentucky. A mechanic lying underneath a grease and
oil truck attempted to start the stalled vehicle by banging on the starter with
a hammer, while another miner in the cab of the truck was at the wheel
assisting the mechanic. When the truck started, it rolled backward and over the
mechanic, who suffered a punctured lung, several broken ribs, and was airlifted
to the hospital. The Respondent was issued multiple citations arising out of
the accident, but only two remain at issue here. The first, Citation No.
8299655, alleges that the Respondent failed to block the truck against motion
in violation of 30 C.F.R. Section 77.404(c). The second, Citation No. 8299679,
alleges that, following the accident, the Respondent allowed work to be done on
the grease and oil truck in violation of the 103(k) Order No. 8289927.

II.                
Stipulations

The Secretary of Labor and the
respondent, Kentucky Fuel Corporation, jointly stipulate to the following facts
as not being in dispute:

1. The respondent
   is subject to the Federal Mine Safety and Health Act of 1977 and to the jurisdiction
   of the Federal Mine Safety and Health Review Commission.

2. The
   presiding Administrative Law Judge has the authority to hear this case and
   issue a decision.

3. Kentucky
   Fuel Corporation is an “operator” as that word is defined in Section 3(d) of
   the Mine Act, 30 U.S.C. Section 803(d), at the mine where the citations
   contested in this matter were issued.

4. The
   respondent has an effect upon commerce within the meaning of Section 4 of the
   Federal Mine Safety and Health Act of 1977.

5. The
   respondent has mine ID 15-19475.

6.   The
citations in this docket are complete, authentic, and admissible.

7. The
   respondent mined 114,647 tons of coal in 2013 and 148,741 tons of coal in 2014.

8. The
   citations in this docket were properly served on the respondent by a duly
   authorized representative of the Secretary on the dates stated therein.

9. The
   penalties proposed in this docket would not affect the respondent’s ability to
   remain in business.

JX-1. [1]

III.             
Law and Regulations

Burden of Proof and
Standard of Proof

The burden of persuasion is upon
the Secretary to prove the gravamen of a violation by a preponderance of the
evidence. Jim Walter Resources, 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). This includes every element of
the citation. In re: Contests of Respirable Dust Sample Alteration
Citations: Keystone Mining Corp., 17 FMSHRC 872, 878 (Aug. 2008).

Commission precedents have 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).

The United States Supreme Court has
held that “ [b]efore any such burden can be satisfied in the first
instance, the factfinder must evaluate the raw evidence, finding it to be
sufficiently reliable and sufficiently probative to demonstrate the truth of
the asserted proposition with the requisite degree of certainty.” Concrete Pipe & Products of California, Inc.
v. Constr. Laborers Pension Trust for S. California , 508 U.S. 602, 622
(1993). The assessment of evidence is a process of weighing, rather than mere
counting: “[T]here is a distinction between civil and criminal cases in respect
to the degree or quantum of evidence necessary to justify the [trier of fact]
in finding their verdict. In civil cases their duty is to weigh the evidence
carefully, and to find for the party in whose favor it preponderates.” Lilienthal's
Tobacco v. United States , 97 U.S. 237, 266 (1877).

Assessment of Credibility

As trier of fact, this Court is free to accept or reject, in
whole or in part, the testimony of any witness. In resolving any conflicts in
testimony, this Court has taken into consideration the demeanor of witnesses,
their interests in the case’s outcome, or lack thereof, consistencies or
inconsistencies in each witness’s testimony, and any other corroborative or
conflicting evidence of record. Any failure to provide detail as to each
witness’s testimony is not to be deemed a failure on the Court’s part to have
fully considered it. The fact that some evidence is not discussed does not
indicate that it was not considered. See Craig v. Apfel , 212 F.3d 433,
436 (8th Cir. 2000) (administrative law judge is not required to discuss all
evidence and failure to cite specific evidence does not mean it was not
considered).

REGULATIONS

30 C.F.R. § 77.404(c), “ Machinery and equipment; operation
and maintenance ,” specifies:

(c) Repairs
or maintenance shall not be performed on machinery until the power is off and
the machinery is blocked against motion, except where machinery motion is
necessary to make adjustments.

30 C.F.R. § 77.404(c).

Section 103(j) of the Mine Act, “ Accident notification; rescue and recovery activities ,” provides that:

In
the event of any accident occurring in any coal or other mine, the operator
shall notify the Secretary thereof and shall take appropriate measures to
prevent the destruction of any evidence which would assist in investigating the
cause or causes thereof. For purposes of the preceding sentence, the
notification required shall be provided by the operator within 15 minutes of
the time at which the operator realizes that the death of an individual at the
mine, or an injury or entrapment of an individual at the mine which has a
reasonable potential to cause death, has occurred. In the event of any accident
occurring in a coal or other mine, where rescue and recovery work is necessary,
the Secretary or an authorized representative of the Secretary shall take
whatever action he deems appropriate to protect the life of any person, and he
may, if he deems it appropriate, supervise and direct the rescue and recovery
activities in such mine.

30
U.S.C. § 813(j).

Section 103(k) of the Mine Act, “ Safety orders; recovery
plans ,” provides that:

In
the event of any accident occurring in a coal or other mine, an authorized
representative of the Secretary, when present, may issue such orders as he deems
appropriate to insure the safety of any person in the coal or other mine, and
the operator of such mine shall obtain the approval of such representative, in
consultation with appropriate State representatives, when feasible, of any plan
to recover any person in such mine or to recover the coal or other mine or
return affected areas of such mine to normal.

30 U.S.C. § 813(k).

IV.             
Summary of Testimony and Evidence

The Rollover

On September 23, 2014, at about 8:30 p.m., Cody Dove, a
rank-and-file miner employed by Kentucky Fuel Corporation at its Beech Creek
Mine, discovered that his red Autocar Grease Truck would not start. Tr. 19, S.
Ex. 1, S. Ex. 3. Dove called out for a mechanic, Jeremy Hensley, who arrived
and asked Dove to try and start the truck while he was down at the front wheel
of the truck. Tr. 19. This entailed Hensley lying horizontally underneath the
vehicle, with his body just behind the driver’s side front wheel and his legs
sticking out from underneath the vehicle. Tr. 20, S. Ex. 6. Using a hammer, the
mechanic began to bang on the starter of the truck, which is located underneath
the vehicle. Tr. 20-1. Inspector Robinson [2]
testified that banging on the starter will, in some cases, start a truck up
because “starters, sometimes they stop in a bad spot . . . sometimes you can
bang them with a hammer and it’ll move them just a little bit to get to a good
place on them and [it’ll] start.” Tr. 20.

As a result of the mechanic striking the starter with the
hammer, the truck started. S. Ex. 3, Tr. 20. Immediately afterward, the
driver’s side front tire rolled over the mechanic, who came within an inch of
being completely rolled. Tr. 20. The rollover caused multiple rib fractures and
Hensley’s lung was punctured. Tr. 30. Inspector Wolford [3]
represented that the operator of the truck told him that the truck was in
reverse at the time of the accident. [4]
Tr. 37. The mechanic was subsequently airlifted to receive medical attention.
Tr. 30. He made a complete recovery and returned to work at the mine in less
than six months. Tr. 30, 11.

Inspector Ralph Fannin verbally issued Section 103(j) Order No.
8289927 that evening at approximately 9:35 pm to Steve Ritz, foreman on site.
S. Ex. 1. This stopped all work at the mine immediately. Tr. 92-3, S. Ex. 1. At
approximately 11:15 pm that evening, Fannin modified the 103(j) Order to a
written 103(k) Order. S. Ex. 1, Tr. 92. The 103(k) Order was modified the next
day, September 24, 2014, at approximately 3:30 pm, to release all portions of
the mine from the Order except the red Autocar grease truck that ran over the mechanic
and the mechanic’s personal blue International truck. [5]
S. Ex. 1, Tr. 93. The Order was again modified on September 25, 2014, at around
3:00 pm, to release the mechanic’s personal blue International truck. S. Ex. 1,
Tr. 94.

Mark Huffman, employed at the time of the accident as Director
of Health and Safety at the Beech Creek Surface Mine, was at home on the night
of September 23, 2014. [6]
Tr. 135. Huffman was called by Steve Ritz, foreman on site at the time. [7]
Tr. 135, Tr. 147. The phone call was short and relayed that an employee had
been injured by a truck that had rolled back on the employee. Tr. 136.

Unsure of the severity of the employee’s injuries, Huffman immediately
called the Mine Safety and Health Administration (MSHA) and the Kentucky Office
of Mine Safety and Licensing to report the accident. Tr. 136. After notifying
MSHA and the Kentucky Office, Huffman placed a third call to Pat Graham, his
superior and Vice President in charge of Health and Safety, relaying what
details he had of the accident once more. Tr. 136.

By this time, Graham had already spoken to the mine
superintendent, Perry Rider, regarding the accident. Tr. 136. Graham, upon
hearing that the mechanic was talking to other miners, suggested to Rider that
the incident was not a reportable accident. Tr. 136. Graham subsequently
traveled to the mine after speaking with Huffman. Tr. 139. Huffman directed
that the accident site be preserved in accordance with the Mine Act, then went
to the hospital to see the injured employee. Tr. 137-8. The accident had
occurred late in the day, too late to begin work in earnest, and it was decided
the accident investigation would begin instead the next day. Tr. 138, S. Ex. 3.

The Accident Reconstruction
and Investigation

Two inspectors involved in the
accident investigation testified at hearing, as well as a representative of the
Respondent who had conducted his own investigation of the accident.

Inspector Brian Robinson was
briefed on September 24th, the day after the accident, and notified he would be
participating in the accident investigation. Tr. 17. On September 24, Robinson
and other MSHA personnel used the Phelps field office to review the mine file and
coordinate their efforts. Tr. 18. As designated lead investigator, Robinson
then traveled to the mine and assigned tasks for each member of his team in
order to begin the investigation. Tr. 18. Robinson also took statements from
Steve Ritz, foreman on site at the time of the accident, and Nicholas Dove, the
driver of the truck at the time of the accident. Tr. 18-9, 147. It was decided
Inspector Melvin Wolford would supervise the truck inspection. Tr. 18.

In their statements to Inspector
Robinson, Ritz maintained the truck was not blocked against motion at the time
of the accident, whereas Dove maintained the truck was blocked against motion.
Tr. 20-1. At hearing, Jim Bowman, the Respondent’s representative, offered that
the Respondent would stipulate the vehicle was not blocked against motion. Tr.

21. Steve Ritz told Inspector Robinson that a crib block was placed to block
    the truck against motion after the accident, but before the arrival of
    inspectors. Tr. 21.

In the course of the investigation, MSHA inspectors took
multiple photographs of various portions of the affected truck, as well as the
area of the accident generally. [8]
Tr. 19, S. Exs. 5-17.The first photo, according to Inspector Robinson, depicts
the area of the accident. Tr. 19, S. Ex. 5. The second photo depicts the
accident scene, including the hammer used to start the truck. Tr. 20; S. Ex. 6.
Robinson described the second photo as showing the victim’s position as he lay beneath
the truck. Tr. 20. The third and fourth photos depict the rear of the truck and
its condition. Tr. 21. S. Ex. 7, 8.

The fifth photograph depicts the wheels of the truck blocked
with chock blocks, which were placed there by MSHA personnel after their
arrival. Tr. 22, S. Ex. 9. The sixth photograph depicts one of the rear wheels,
showing how far the vehicle traveled after being started by the mechanic. Tr.
22, S. Ex. 10. Inspector Robinson asserted at hearing that the ruler placed in
the frame of the photograph suggested the truck moved backwards approximately 2
feet before becoming stopped by the mechanic’s body. Tr. 23. The seventh
photograph depicts the front wheel demonstrating that it also moved backwards. Tr.
22, S. Ex. 11.

The eighth photograph depicts the starter on the affected
truck. Tr. 23, S. Ex. 12. With a pen, Inspector Robinson circled places where
the hammer struck and knocked mud off the starter. Tr. 24. The ninth photograph
depicts the gross vehicle weight rating (GVR) of the truck, which is 48,000
pounds. Tr. 23, S. Ex. 13.

On December 1, 2014, Inspector Robinson issued Citation No.
8300622 on the affected vehicle for “not being maintained in a safe operating
condition.” [9]
Tr. 25. Among the deficiencies alleged by the citation was a film or coating on
the right rear and left front tandem, caused by oil and grease, that prevented
the brake shoe from gripping the brake drum. Tr. 25. Two of the four parking brake
units were rated as deficient, making the parking brake only 50% effective. Tr.
25.

Further, the backup alarm on the truck, designed to audibly
warn those behind a truck when the truck is reversing, was unplugged. Tr. 26.

Robinson testified at hearing that if the parking brake had
been adequate, absent any grease or oil, one could strike the starter from beneath
the truck, and start the truck, and the truck would not move. Tr. 26. Further,
Robinson testified that if the backup alarm had been operational, the victim
would have been aware the vehicle was reversing and might have moved out of the
way. Tr. 28.

Robinson also issued Citation No. 8299655, alleging that the
Respondent “failed to block the affected grease truck from motion before
getting under the truck to work on the starter,” in violation of 30 C.F.R.
Section 77.404(c). S. Ex. 3, T. 29. The citation also alleges that “suitable
wheel chocks sited for the equipment being used on the job was not available at
the mine site when this accident occurred.” S. Ex. 3. The citation’s gravity
was marked “occurred,” and the injury determined to be “lost work days,
restricted duty,” because the mechanic had actually been injured and lost work
days as a result. Tr. 29-30.

The negligence on the citation was rated “high,” because,
according to Inspector Robinson, during his investigation and interviews,
personnel could not identify where wheel chocks were stored, and told him that
rocks and crib blocks were used. [10]
Tr. 30. Robinson testified that a crib block or rock can be sufficient to
satisfy the standard, but not always. Tr. 31. Robinson explained that, in this case,
the diameter of the tires made it such that a single crib block was not enough
to chock the wheels of the truck. Tr. 31.

At hearing, safety director Huffman testified that the mechanic
kept wood crib blocks on his vehicle at all times. Tr. 146. Huffman reported
personally seeing these blocks. Tr. 146-7. Huffman also contended wood blocks
were very effective in blocking a truck, and, depending on the configuration, a
number of crib blocks could block a Caterpillar 994 haul truck. Tr. 149, 161-2.

Inspectors attempted to reconstruct the accident itself the day
after, September 24, 2014. Tr. 38-40. The inspector in charge of the truck,
Melvin Wolford, performed a number of tests on the vehicle and its components.
Tr. 61. A reconstruction involved testing the parking brake, putting the truck
in reverse and hitting the starter. [11]
Tr. 37-8. This was performed by putting chock blocks back “a couple feet,”
placing the truck in reverse, and starting the truck with the parking brake
engaged. Tr. 71. The truck started and moved, despite the parking brake being
engaged. Wolford testified at hearing that the parking brake “wasn’t sufficient
to hold the truck.” Tr. 71.

Wolford inspected the vehicle, noting the position of the gear
shifter and air pressures, and going underneath the truck and measuring brake
strokes. Tr. 64. Wolford also examined the condition of the brakes, steering
components, oil drums, brake canisters, and other parts of the truck. Tr. 64-5.
Wolford observed a number of deficiencies on the truck. Tr. 64. Among these
were steps and ladders bent on the truck, oil-covered walkways, malfunctioning
brake canisters, suspension components with defective leaf springs, and grease
contamination on two of the four brake drums. Tr. 65. A brake chamber suffered
from an air leak, discovered when Wolford performed an audible test of the
brakes to listen for any air pressure leaks. Tr. 65.

Like Robinson, Wolford documented his findings with
photographs. Wolford’s first photograph depicts, according to Wolford, grease
and oil contamination on one of the truck’s brakes. Tr. 66-7; S. Ex. 14.
Wolford scratched on the surface of the brake to show the extent of the grease
buildup, testifying that the buildup would not have occurred recently. Tr. 67.
Wolford testified that dry braking surfaces are essential in order for a brake
to properly function. Tr. 66-7. Wolford’s second photograph is a picture of a
brake drum visibly caked with grease or oil and similarly marked with a sharp
object by Wolford to show the extent of the buildup. Tr. 67-8, S. Ex. 15. The
brake drum shoe that was depicted is activated when the standard surface brake
is engaged, but it is also activated when the parking brake is thrown. Tr. 68.
Similarly, Wolford’s third photograph shows a buildup of oil and grease on one
of the truck’s braking shoes. Tr. 68-9, S. Ex. 16. Wolford testified that oil
and grease contamination on braking surfaces reduces the amount of friction
within the brakes, in turn affecting the ability of the brakes to properly stop
the vehicle from moving. Tr. 68.

Wolford’s fourth photograph depicts a wheel on the driver’s
side of the truck, with the wheel assembly and brake drums removed, showing oil
contamination on the uncovered brake shoes. Tr. 69, S. Ex. 17.

At hearing, Wolford testified that that the conditions he
observed were also likely to be observed during a preoperational examination.
Tr. 87. Wolford noted that a preoperational shift is performed on the truck
twice a day. Tr. 87.

The Respondent also performed its own investigation into the
accident. Tr. 138. Safety Director Mark Huffman checked both the service and
parking brakes, the low air buzzers, and the warning and audible alarms on the
vehicle. Tr. 139. The truck’s parking brake was tested with the vehicle in
forward gear at least twice. Both times the truck did not move. Tr. 139.
Huffman contended that the result of the tests was that the service and park
brakes were both working properly. Tr. 140. The Respondent’s own investigation
of the truck found no deficiencies except for a broken spring in a brake
canister. Tr. 151.         

The Alleged Violation of
the 103(k) Order

Inspector Fannin’s 103(k) Order
on the truck remained in force following the accident investigation. Tr. 94. The
103(k) Order was modified multiple times after it was issued, including to
allow equipment to be examined and to allow the operator to fill a diesel fuel
tank. S. Ex. 1. A 103(k) Order is modified when an operator requests for a
modification and provides sufficient reasoning to justify why the modification
would not affect the primary purpose of the 103(k) Order. Tr. 95-6. If the
modification is deemed appropriate, inspectors then travel on-site, review the 103(k)
Order, modify it, and give the operator an updated 103(k) Order with the
included modification. Tr. 96.

On November 7, 2014, Inspector
Robinson traveled to the mine site. Tr. 96. Meeting a foreman and a mechanic at
an access road, Robinson was surprised to hear from the mechanic that the mechanic
had put the wheels and tires back on the sequestered truck and intended to
adjust its brakes. Tr. 97. This was unusual as any work performed on the truck
would require a modification of the 103(k) Order, and typically the Inspector
in charge would do the modifying. Tr. 97.

Robinson tried to learn who had given the miners permission to
perform work on the sequestered vehicle. Robinson asked mine superintendent Perry
Rider who had given the order to perform work, and Rider identified Mark
Huffman, the mine’s safety manager. Tr. 97. Robinson called Huffman on speaker
phone in the presence of Rider and Huffman denied remembering doing so. Tr. 97.
(At hearing, Huffman also denied authorizing any work to be performed on the
vehicle.) Tr. 158. Still with Inspector Robinson at the mine site, Rider then
suggested it may have been MSHA Inspector Dustin Rutherford who gave them
permission to work on the vehicle. Tr. 97. Dustin Rutherford was working at the
nearby Phelps field office, and reached by phone there, denied permitting work
to be done on the truck. Tr. 97. At hearing Robinson testified that he believed
Rider was the person who gave the order for work to be performed on the
vehicle. Tr. 100.

Once at the mine site, Robinson compared the photographs he had
of the truck taken on September 24 with the condition of the vehicle in front
of him on November 7. Tr. 97-8. He noted multiple differences between the
condition of the truck on September 24 as compared to the condition on November

7. Among the things that had been modified or removed, two ladders had been
   taken off the side of the truck, a fuel hose reel had been removed, and multiple
   wheels and tires had been put back on. Tr. 99, S. Ex. 2.

As a result, Inspector Robinson issued Citation No. 8299679. S.
Ex. 2. He assessed the likelihood of injury as “none,” and expected injury as
“no lost workdays,” because the truck was immobile at the time. Tr. 100-1.
Robinson assessed the negligence as “reckless disregard.” Tr. 101. This was due
to the fact that Robinson learned from Inspector Rutherford that the Respondent
had requested and been denied a modification the 103(k) Order prior to
Robinson’s discovery of the violation. Tr. 101.

Robinson testified that the operator was well-aware of the
procedure that modifying a 103(k) Order entails. Tr. 102-3, 130. Inspector
Robinson testified that personnel knew that he was the lead investigator and
therefore primarily responsible for its modification. Tr. 130. At hearing,
Huffman testified that he did ask for a modification of the 103(k) Order but
was unable to provide documentation supporting his testimony. Tr. 161.

The 103(k) Order was terminated when the vehicle was removed
from the mine site by the operator’s decision. Tr. 103.

V.                
Findings of Fact and Conclusions of Law

Citation
No. 8299655

A.     Contentions of
the Parties

The Secretary contends that Kentucky Fuel Corporation violated
30 C.F.R. Section 77.404(c). Sec’y’s Post-Hearing Br., 3. The Secretary further
contends that Citation No. 8299655 was properly designated as Significant and
Substantial (S&S), as the violation contributed to the risk of being
crushed by unintended motion of a truck, that such an injury was reasonably
likely to occur and that such an injury was of a reasonably serious nature.
Id., at 4. The Secretary further maintains that Citation No. 8299655 was
properly designated as high negligence, as the failure of the operator to
properly supervise, train, and discipline employees contributed to the
accident. Id., at 5. For evidence in support of the proposition, the Secretary
notes the failure of the operator to discipline any miner involved in the
accident, the alleged absence of suitable wheel chocks on the mine site, the
truck’s individual safety defects, and the failure of mine management to block
the truck after the accident had occurred. Id., 6-8.

The Respondent stipulated that a violation of a mandatory
safety standard did occur in this case. Resp’t’s Post-Hearing Br., at 6. The
Respondent contends that the Secretary failed to sustain his burden of proof
that Citation No. 8299655 was the result of the operator’s high negligence. Id.,

5. In support of this argument the Respondent cites the long-standing
   proposition that the conduct of rank-and-file miners is generally not imputable
   to the operator in determining negligence for penalty purposes. Id., 6. The
   Respondent also contends that Mr. Hensley was not directly supervised by any
   member of management and acted on his own initiative. Id., at 6. The Respondent
   notes that the sole foreman at the mine site at the time was far away and only
   reachable by radio contact. Id. Therefore, the Respondent argues, the operator
   did not have knowledge of the violation and the negligence was improperly
   designated as “High.” Id. The Respondent contends that the operator provided
   wooden crib blocks for use to block trucks against motion, and that wooden crib
   blocks are an adequate type of blocking material. Id., at 8-9.

B.      The
Secretary Has Carried His Burden of Proving a Violation By a Preponderance of
the Evidence

As stated supra ,
the Respondent stipulated to a violation of 30 C.F.R. § 77.404(c). Resp’t’s
Post-Hearing Br., at 6. The regulation specifies that “repairs or maintenance
shall not be performed on machinery unless the power is off and the machinery
is blocked against motion, except where machinery motion is necessary to make
adjustments.” 30 C.F.R. § 77.404(c).

It is undisputed
that there was a failure to block the truck against motion. Subsequently, the
truck moved backward, rolling over and injuring a miner, who was engaged in
“repairs or maintenance” at the time. Tr. 19-21. This Court therefore finds
that the Secretary has carried his burden of proving a violation of 30 C.F.R. §
77.404(c) by a preponderance of the evidence. Beyond the Respondent’s own
stipulation there is ample evidence to substantiate the violation’s existence,
as discussed supra .

C.     The Violation
was Reasonably Likely to Cause a Fatality and was Properly Designated
Significant and Substantial

The Secretary assessed the violation as reasonably likely to
cause a fatality and Significant and Substantial (S&S).

The Commission’s recent decision in ICG Illinois, LLC , __
FMSHRC __, slip op. at 3-4, LAKE 2013-160, elaborated on the traditional
four-part S&S test:

The
Commission has recognized that a violation is S&S if, based upon the
particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to by the violation will result in an
injury or illness of a reasonably serious nature. See Cement Div., Nat’l
Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies
Coal Co. , 6 FMSHRC at 3-4 (Jan. 1984), the Commission further explained:

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

6 FMSHRC
1, 3-4, (Jan. 1984), (footnote omitted); accord Buck Creek Coal,
Inc.., v. FMSHRC , 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc.,
v. Secretary of Labor , 861 F. 2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria). In conducting the Mathies analysis, the focus now generally
centers on the interplay between the second and third steps. Newtown Energy,
Inc. , __ FMSHRC __, slip op. at 5, No. WEVA 2011-283 (Aug. 29, 2016).

The
second step of Mathies addressed the contribution of the violation to a
discrete safety hazard, i.e., the extent to which the violation increases the
likelihood of occurrence of the particular hazard against which the mandatory
standard is directed. Newtown , slip op. at 5, citing Knox Creek Coal
Corp ., 811 F.3d 148, 162-63. (4th Cir. 2016) (citing Black Beauty Coal
Co. , 34 FMSHRC 1733, 1741 n. 12 (Aug. 2012)). At this stage, it is
essential that the Judge adequately define the hazard to which the violation
allegedly contributes. A clear description of the hazard at issue provides
context when determining the relative likelihood that the violation contributes
to a hazard, and will also frame the potential source of injury for purposes of
determining gravity in the third step of Mathies . The starting point for
determining the hazard is the regulation cited by MSHA; the “hazard,” for
purposes of the Mathies analysis, is the danger which the cited safety
standard is intended to prevent. Newtown , slip op. at 6.

Having
clearly defined the hazard, the next task in analyzing the second step of Mathies
is for the judge to determine whether the Secretary has proven that the
violation contributed to that hazard. That means the second step requires a
determination of 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 . We
recognize that “reasonable likelihood” is not an exact standard measured in
percentages, but rather a matter of degree, an evaluation of risk with a
particular focus on the facts and circumstances presented. Id., at 7.

At
this stage, the focus shifts from the violation to the hazard. The third and
fourth steps are primarily concerned with gravity, i.e., whether the hazard
identified in step two would be reasonably likely to result in serious injury. See
Cumberland Coal Res., LP , 33 FMSHRC 2357, 2364-66 (Oct. 2011) (citing Musser
Eng’g, Inc., & PBS Coals, Inc. , 32 FMSHRC 1257, 1281 (Oct. 2010); Knox
Creek , 811 F.3d at 162. If the Judge concludes, based upon the evidence,
that the violation sufficiently contributes to the hazard identified at step
two, the Judge then assumed such occurrence and determines at step three
whether, based upon the particular facts surrounding the violation, the
occurrence of that hazard would be reasonably likely to result in an injury. At
step four, the Judge determines whether any resultant injury would be reasonably
likely to be reasonably serious.

ICG Illinois, LLC , __ FMSHRC __,
slip op. at 3-4, LAKE 2013-160 (Oct. 21, 2016) (footnotes omitted).

This Court finds that the Secretary has proven an underlying
violation of a mandatory safety standard. Mathies , 6 FMSHRC at 3-4
(footnote omitted), see supra .

The second step “addresses the extent to which the violation
contributes to a particular hazard. This step is primarily concerned with the
likelihood of the occurrence of the hazard against which a mandatory safety
standard is directed.” Newtown Energy , Inc ., slip op. at 5. The
Commission in Newtown, Inc ., observed that “it is essential for the
Judge to adequately define the particular hazard to which the violation
allegedly contributes.” Newtown, Inc ., at 6. The hazard, according to Newtown,
Inc. , is defined “in terms of the prospective danger the cited safety
standard is intended to prevent.” Id.

The hazard that
30 C.F.R. § 77.404(c) was promulgated to guard against, plainly, is injury to a
miner by heavy machinery that has not been blocked against motion. In other
words, getting crushed by a truck is made significantly more likely by a
failure to block that truck against motion. Such an injury did occur in this
case, which is an illustration that this contemplated hazard is more than a
hypothetical concern. Thus this Court finds that this violation was reasonably
likely to lead to the hazard described supra .

The third step concerns the gravity, or reasonable likelihood
that the hazard contributed to will result in an injury. Given the Commission’s
instruction that this third step requires a nuanced examination of the relevant
facts peculiar to this case, the Court now considers the factual situation
vis-à-vis the reasonable likelihood that this hazard would contribute to an
injury.

The following facts in the record are uncontested: that a miner
was beneath the truck performing maintenance when it was not blocked against
motion, that the truck moved while the maintenance was being performed, that
the truck ran over the miner, and that the miner had to be airlifted to the
hospital. Tr. 12, Tr. 20, Tr. 30, Tr. 41.

Regarding the severity of the miner’s injuries, Mark Huffman, director
of health and safety at the Beech Creek Surface mine, testified that “if [a
truck] rolled all the way over them, yes, it could [kill a miner].” Tr. 154. Brian
Robinson, an inspector with nine years’ experience at the time of citation
testified that the victim was “within an inch of being completely rolled,” and
if that had occurred, the consequences would’ve been “probably fatal.” Tr. 30.
As it happened, the miner suffered cracked ribs and a punctured lung. Tr. 154.

In the instant matter, the truck was not blocked against
motion. This violation led to the increased likelihood that the foreseeable
hazard, getting run over by the truck, would manifest. The particular facts in
this case also require consideration of the miner’s location underneath the
vehicle, which put the miner at obvious risk of being run over. When the truck
did start, the miner was run over. Both the Secretary and Respondent concede
that if the truck had moved backward a few more inches, the miner would likely have
been killed.

Therefore, this Court finds it was reasonably likely that the
hazard contemplated would lead to a reasonably serious injury. Indeed, in this
instance, a reasonably serious injury did occur. The miner was fortunate that
he sustained injuries less than fatal. This Court finds that the most likely
injury to result from being run over by a truck to be a fatality. S. Ex. 13. As
a result, the third and fourth steps of Mathies have been satisfied. The
violation was properly designated Significant and Substantial (S&S).

D. The Violation was the Result of the Respondent’s High
Negligence

Section 110(i)
of the Mine Act authorizes the Commission to assess penalties for violations of
the Act, and includes the operator’s negligence as one of the criteria the
Commission is required to consider in assessing a penalty. To start the
process, MSHA proposes a penalty pursuant to section 105(a) of the Act, 30
U.S.C. § 815(a). MSHA has published regulations explaining its role in the
penalty process, including how it arrives at proposed penalty amounts. See 30
C.F.R. Part 100.

The Part 100 regulations address how MSHA calculates most
proposed penalties in light of the statutory criteria the Commission must
consider, and explains how MSHA views each of the criteria. See 30
C.F.R. § 100.3. With regards to the negligence criteria, MSHA has adopted a
formulaic approach, categorizing negligence into five different levels, from
“no” negligence to “reckless disregard,” based on the existence of a mitigating
circumstance, or multiple such circumstances, for the violation. 30 C.F.R. § 100.3
(d); see generally Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3106
(Dec. 2014) (Comm’r Cohen, concurring.) [12]

The Commission has recently explained that judges are not
required to apply the level of negligence definitions in Part 100 and may
evaluate negligence from the starting point of a traditional negligence
analysis [13]
rather than the Part 100 definitions. Brody Mining, LLC , 37 FMSHRC 1687,
1701 (Aug. 2015); accord Mach Mining, LLC v. Sec’y of Labor , 804
F.3d 1259, 1263-4 (D.C. Cir. 2016).

Moreover, the Commission in Brody held that judges in
making their negligence determinations were not to be limited to an evaluation
of potential mitigating circumstances but should instead consider “the totality
of the circumstances holistically.” Brody , 37 FMSHRC at 1702.

In determining the existence and degree of negligence
associated with an alleged violation, a Commission judge must consider the duty
of care accompanying the mandatory standard at issue.

Negligence is not defined in the Mine Act. The Commission has,
however held:

“[e]ach
mandatory standard . . . carries with it an accompanying duty of care to avoid
violations of the standard, and an operator’s failure to meet the appropriate
duty can lead to a finding of negligence if a violation of the standard occurs.”
A.H. Smith Stone Co. , 5 FMSHRC 13, 15 (Jan. 1983). In determining
whether an operator met its duty of care, we consider what actions would have
been taken under the same circumstances by a reasonably prudent person familiar
with the mining industry, the relevant facts, and the protective purpose of the
regulation. See generally U.S. Steel Corp. , 6 FMSHRC 1908, 1910 (Aug.
1984).

JWR,
36 FMSHRC at 1975; see, e.g., id. at 1976-77 (requiring Secretary to
show that operator failed to take specific action required by standard
violated); Spartan Mining Co. , 30 FMSHRC 699, 708 (Aug. 2008)
(negligence inquiry circumscribed by scope of duties imposed by regulation
violated.)

Brody , 37 FMSHRC at 1702.

Traditionally, the Commission has held that the conduct of a
rank-and-file miner cannot be imputed to the operator for penalty purposes
within the context of negligence. Fort Scott
Fertilizer-Cullor, Inc. , 17 FMSHRC 1112
(July 1995). The Commission observed in its recent decision, Leeco, Inc., 38
FMSHRC ___ No. KENT 2012-166 (July 18, 2016), determining an operator’s
negligence includes considerations beyond whether that operator had actual
knowledge of a violation:

In
cases where a rank-and-file miner has violated the Act or its mandatory
standards, the Commission examines the operator's supervision, training, and
disciplining of its employees to determine whether the operator had taken
reasonable steps necessary to prevent the rank-and-file miner's violative
conduct. Southern Ohio Coal Co. , 4 FMSHRC 1459, 1464 (Aug. 1982)
(“SOCCO”), citing Nacco Mining Co. , 3 FMSHRC 848, 850-51 (Apr. 1981).
The Commission also considers the foreseeability of the miner's conduct and the
risks involved when determining whether the operator was negligent. A. H.
Smith , 5 FMSHRC at 15, citing SOCCO , 4 FMSHRC at 1463-64; Nacco ,
3 FMSHRC at 850-51.

Leeco,
Inc., at 3.

To determine if
the operator has met its duty of care, the Court considers what a reasonably
prudent person, familiar with the mining industry, the relevant facts, and the
protective purpose of the 30 C.F.R. § 77.404(c), would have done. Brody
Mining, LLC , 37 FMSHRC 1687, 1702 (Aug. 2015).

1. The
   Respondent’s Supervision, Training, and Provision of Materials Failed to Meet
   the Required Standard of Care

The Court examines first the operator’s supervision, training,
and disciplining to determine whether the operator had taken reasonable steps
to prevent the rank-and-file miner’s violative conduct. The Court then examines
the foreseeability of the miner’s violative conduct, given the condition of the
truck, as well as the apparent absence of proper blocking materials (or proper
training on blocking techniques). Finally, the Court concludes by finding that,
under Brody ’s reasonably prudent person standard, the operator’s conduct
was a product of its own high negligence. The Court can find no mitigating
circumstances to balance the negligence determination.

The supervision and training of miners, a factor of
consideration under Leeco, Inc ., in this instance relates to the
supervision and training the miners received in the performance of blocking
vehicles against motion. Leeco, Inc. , 3.

Regarding supervision, this Court notes that one foreman, Steve
Ritz, was on-site during the evening shift. Resp’t’s Post-Hearing Br., 7
However, Respondent’s assertion that Kentucky Fuel Corporation could not
predict the mechanic’s conduct goes too far. Resp’t’s Post-Hearing Br., 7. The
Respondent’s deficiencies in either training or supply of materials for use in
blocking, as well as the truck’s damaged brakes and inoperative safety features,
made the mechanic’s conduct reasonably foreseeable.

The Respondent’s conduct in this case suggests a deficiency
either in the supply of training and/or materials regarding the blocking of
vehicles against motion. It is undisputed that the Respondent failed to block
the truck against motion. It is also undisputed that an accident subsequently
occurred as a result of such. Arriving on the scene of the accident, Steve
Ritz, the sole mine foreman on site at the time, rescued the mechanic from
under the truck, arresting the truck’s movement with a single crib block. Tr.
20-21. The Court finds that blocking a truck capable of a gross-weight rating
of 48,000 pounds with a single crib block is unsafe, and essentially a
continuing violation of 30 C.F.R. § 77.404(c). This is because the diameter of
the tires of the truck in question were too large for a single crib block to
effectively arrest the truck’s motion, according to Inspector Robinson’s
persuasive testimony. Tr. 31.

Following this, Pat Graham, a member of mine management, visited
the accident scene without directing that proper blocking materials be put
down. As the Solicitor notes in his brief, “no member of mine management
adequately blocked the truck even after the accident occurred.” Sec’y’s
Post-Hearing Br., at 6.

This is highly persuasive evidence that even the Respondent’s
own management were not properly trained in the blocking of vehicles against
motion. The Court rejects the Respondent’s contention that there was no
evidence in the record of improper training regarding blocking procedures with
the above information in mind. Resp’t’s Post-Hearing Br., at 8.

In its brief the
Respondent argues that wooden crib blocks are a time-tested blocking material
and rightly points out that the regulation does not require wheel chocks to be
employed as blocking material. Resp’t’s Post-Hearing Br., at 9. Whether or not
wooden crib blocks can be an adequate source of support to block a truck
against motion is not a question before this Court. Nor is the question of
whether 30 C.F.R. § 77.404(c) requires the use of wheel chocks on every mine
site. While 30 C.F.R. § 77.404(c) does not specify what kinds of materials are
necessary, it does require that in order for work to be performed, the vehicle
must be powered off, and blocked against motion.

The Respondent’s contention that wooden crib blocks are an
adequate form of support is too broad. It may be true that in some cases, with
proper training and the right crib blocks, crib blocks can be used to satisfy
30 C.F.R. § 77.404(c)’s requirements. However, that question is not before this
Court.

In the instant case, both the material (one crib block, or a
rock, it is unclear), as well as the training involved in placing these
materials, were inadequate. Tr. 20-1. Wheel chocks are almost always likely to
fall in the category of safe blocking materials; crib blocks, rocks, and other
ad hoc materials, if deployed improperly as a result of poor training, are
inappropriate.

Examining the materials and techniques used to block vehicles
against motion, as well as the defective conditions of the vehicle in question,
the Court finds that the mechanic’s conduct was a reasonably foreseeable result
of the Respondent’s conduct.

The evidence suggests that if chock blocks were available on
the mine site, they were not readily available to the mine mechanic. The
mechanic in this case traveled with crib blocks in his truck and possibly used
rock to block the red Autocar grease truck. Tr. 31. Thus, if they were
available on the mine site, wheel chocks were not practically available to the
mechanic, or the mechanic was not properly trained in their use. The
responsibility of the operator is the same: supplying proper training and
materials is part of the Respondent’s high duty of care. At hearing, the Court
heard persuasive testimony from Inspector Robinson that wheel chocks are on
nearly every mine site he visits. Tr. 49. Inspector Robinson also testified
that wheel chocks are easy to transport and deploy. Tr. 49. Finally, Inspector
Robinson testified that a miner would not commonly use rocks instead of wheel chocks.
Tr. 50.

Testimony offered at hearing by Mark Huffman suggested that
mechanics at the mine routinely carry crib blocks to use in the back of their
truck. Tr. 153. Huffman also testified that he witnessed crib blocks in the rear
of the mechanic’s truck. Tr. 153. If this were true, then why would a mechanic
choose to block a truck with a rock when he could just as easily use a safer
crib block? Or, if the truck was actually unblocked, why would a mine mechanic
choose to leave the truck unblocked with blocking materials so conveniently at
hand?

The mechanic’s conduct in this case suggests the absence of readily
available blocking material on the mine site, or the absence of proper training
on blocking techniques.

Beyond the operator’s training and materials, the Court
considers the mine mechanic’s own interests. Choosing to block a truck against
motion with rocks is less safe, and exposes one to greater risk, than using
chock blocks or crib blocks. In order for the Respondent’s position to be credible,
the Court would have to accept that the mechanic willingly exposed himself to
fatal injury when materials may have been at hand that could’ve substantially
mitigated this risk.

While the presence of wheel chocks on a mine site may not be
required by 30 C.F.R. § 77.404(c), plainly the training and materials supplied
in this case were inadequate to meet the requirements of the safety standard
and fell far short of the operator’s high duty of care under Brody .

The operator’s discipline of the mechanic’s violative conduct
consisted of an admonishment, according to the Respondent’s brief. Resp’t’s
Post-Hearing Br., 7. The Respondent’s representative argues that the mine
mechanic was sufficiently punished by his injuries in his brief. Resp’t’s
Post-Hearing Br., 7. There is no more evidence in the record regarding the
disciplining of the mine mechanic.

2. The
   Mechanic’s Conduct Was Reasonably Foreseeable

By examining in toto the operator’s training, provision
of materials, and discipline of errant miners, the Court finds that the
Respondent cannot defend against the Secretary’s negligence determinations simply
because its sole foreman was not present when the accident occurred. This is
due not just to the failure in either training and/or the provision of
materials, but also due to the foreseeability of the mechanic’s conduct.

Taking the specific deficiencies of the truck together with the
inadequate training and/or materials provided to the miners in this case, the
Court finds that the mechanic’s conduct was reasonably foreseeable. A
reasonably prudent person, familiar with the peculiar facts and circumstances
of this case as well as the protective purpose of the 30 C.F.R. § 77.404(c),
would have foreseen the mechanic’s conduct as a possibility and moved to
prevent it. Brody Mining, LLC , 37 FMSHRC 1687, 1702 (Aug. 2015) (finding
that determining whether an operator has met its duty of care requires
considering the actions that a reasonably prudent person, familiar with the
mining industry, the relevant facts, and the protective purpose of the
regulation, would take in the same circumstances).

Part of why this accident was reasonably foreseeable is due to
the bad condition of the truck in question. The tests performed by the
Secretary and the tests performed by the Respondent, as described supra ,
produced different conclusions regarding the safety and functionality of some
of the truck’s key safety features: its backup alarm, its parking brake, and
its service brake. Tr. 64-6, Tr. 139-140. In assessing the validity of the
tests conducted by both parties, the Court finds the results of the Secretary’s
tests to be more credible than the results of the Respondent. The Court finds
that the truck was in such a deficient state that a reasonably prudent person,
familiar with the mining industry, the protective purpose of the regulation,
and the peculiar facts of this case, would have repaired the numerous
deficiencies in the vehicle before returning it to work. Brody , at 1702.

The Court finds the Secretary’s tests to be more credible
primarily due to methodology. The Secretary’s witnesses offered more detail,
described infra , and presented independent corroboration of their
findings in the form of photographs. Tr. 64-6, S. Ex. 5-17.

The methodology of the Respondent’s testing is less clear, and
its results were unsupported by any evidence beyond testimony. Indeed, based on
the testimony, it is difficult to determine whether the Respondent’s tests
found no deficiencies, or if the test results were not explained in detail. For
example, Mr. Huffman, the Respondent’s witness who was in charge of accident
reconstruction, testified at hearing:

We
checked both the service and the park brake… we checked the low air buzzers,
the warning and audible alarms on it. We checked the truck with the park brake
set in the forward and reverse positions. We tried to pull it forward, pull it
out backwards, and stall the engines. We did that with both the service brake
and with the park brake set . . . the truck didn’t move.

Tr. 139.

It unclear from the testimony offered here whether “checking”
the warning and audible alarms on the vehicle confirmed they were operational.
It is also unclear whether the brake chambers were examined beyond checking the
low air buzzers; Inspector Wolford’s own tests revealed an air leak within the
brake chamber. Tr. 65. The Respondent, in describing the testing, did not
detail the grade of the slope, the condition of the truck and its parts during
the test, and the weight of the truck itself during the test. Ultimately the
Respondent’s witness testifies that the parking brake and service brake were
“working properly.” [14]
Tr. 140.

But as Inspector Wolford testified at hearing, merely having
the brakes work properly does not necessarily mean a truck’s braking system
is working properly. Bad braking components, oil and grease contamination, and
air leakage could render a working brake effectively inoperative. Tr. 68. The
paucity of description regarding the condition and function of both brakes
renders much of Huffman’s testimony merely conclusory statements. This
testimony is difficult to reconcile with the Respondent’s conduct with regard
to a previous citation arising out of the same facts and circumstances.

As the Secretary notes in his brief, Citation No. 8300622 was
issued for various defects associated with the vehicle. Among these defects were
the unplugged back-up alarm and the oil and grease build-up on the rear brakes.
Sec’y’s Post-Hearing Br., 7. The Respondent did not contest this citation.

The Secretary’s photographic exhibits in this case appear to
depict brakes covered in a thick build-up of grease and dirt. S. Ex. 14, 15,

16. The Respondent’s description of the ‘check’ of the back-up alarm does not
    clarify whether it was operational. Further, the thick build-up of grease and
    dirt visible in the Secretary’s photographs apparently had no effect on the
    truck’s braking capacity during the Respondent’s tests. Altogether, the
    Respondent’s testing lacks sufficient indicia of reliability to persuade.

The tests performed by the MSHA inspectors possess greater
indicia of reliability, and are therefore more credible. In his description of
the testing performed, Inspector Wolford identified not only what he tested,
but what he determined from the testing. Tr. 64-6, 70. This is not so of the
Respondent’s testimony, where details essential for credibility determination
were not introduced into evidence. Moreover, Wolford tested the truck in a
reenactment of the accident, placing the parking brake on and the gear in
reverse, and as a result reproduced the same outcome as occurred in the
accident: the truck pulled through its brakes on the slope and moved backward
once started. Tr. 71.

The decision to not perform a so-called “function test” does
not affect the Court’s credibility calculus. As noted infra , a function
test as described by the Respondent’s representative, Jim Bowman, would require
the tester to repair defects that had made a material difference in the truck’s
performance in order for the vehicle to travel to a testable slope. To perform
such a test would require altering the condition of the truck, which would
create testing difficulties.

The Secretary’s witnesses, both experienced inspectors, were
supported in their testimony by the photographic evidence described infra .
The Respondent’s tests are not similarly supported by independent evidence.

A truck with a malfunctioning parking brake, no working back up
alarm, and two of its four brake drums caked in grease is far more likely to
slip its brakes and move of its own accord. Tr. 65, 67. Once in motion, the
lack of a back-up alarm would expose miners to the risk of being run over. Tr.

28. Preventing and remediating these dangerous defects was part of the
    Respondent’s duty of care.

It is a long-standing principle of Commission caselaw that the
Mine Act’s strict liability regime is meant to encourage greater operator
vigilance in locating and correcting health and safety violations. See, e.g., Rock
of Ages Corp. v. Sec'y of Labor , 170 F.3d 148, 155 (2nd Cir. 1999). Over
time, the operator’s conduct allowed the truck’s condition to degrade until it
was unsafe. The operator knew or should have known the truck was unsafe. The
training and supply of blocking materials was inadequate. The operator knew or
should have known this.

Accordingly, this Court finds a reasonably prudent person,
familiar with 30 C.F.R. § 77.404(c) and the facts and circumstances of this
situation, would have provided proper blocking training and materials.

Citation No. 8299655 was properly assessed as High negligence.

Citation No. 8299679

A. Contentions of the Parties

The Secretary contends the
underlying 103(k) Order was validly issued. Further, the Secretary contends
that the 103(k) Order was violated. The Secretary contends there are no mitigating
circumstances for the violation. The Secretary contends that the Respondent
displayed reckless disregard in violating the 103(k) Order.

The Respondent contends that the Secretary failed to prove a
violation of Section 103(k) by substantial evidence. The Respondent contends
that the initial 103(j) Order issued in this matter was not validly issued. [15]
The Respondent contends that the accident did not have the reasonable potential
to cause a fatality. The Respondent contends that the accident was therefore
not a reportable one under the Mine Act. Further, the Respondent contends that
the Secretary failed to prove, if a violation did occur, that that violation was
one of reckless disregard by substantial evidence.

B. The Underlying (k) Order was Valid

To challenge the citation’s
validity, the Respondent disputes whether a qualifying accident occurred in
this matter. The Respondent also attacks the validity of the 103(k) Order
because it “exceeded the authority granted MSHA.” Resp’t’s Post-Hearing Br., 13.

As noted supra , the period of time between when
Inspector Ralph Fannin issued his 103 (j) Order on September 23, 2014, and when
he modified that order into a 103(k) Order, was approximately 90 minutes. [16]
S. Ex. 1. Section 103(k) of the Mine Act provides that “in the event of any
accident occurring in a coal or other mine, an authorized representative of the
Secretary, when present, may issue such orders as he deems appropriate to
insure the safety of any person in the coal or other mine.” 30 U.S.C. § 803(k).

There is no dispute that Inspector Fannin qualified as an
“authorized representative of the Secretary” when he issued his 103(k) Order.

The Respondent argues in its brief that no qualifying accident
occurred in this matter, as there is no way to reasonably conclude the accident
required rescue or recovery work. Resp’t’s Post-Hearing Br., 10. In support of
this position the Respondent contends that the Secretary failed to introduce
any evidence of labored breathing or severe pain. Id, at 11. The Respondent
further argues that there should be an inference drawn, in the absence of
hospital records, that those records would not support a finding of a
life-threatening injury. Id.

These arguments fundamentally misconstrue Commission precedent.
A truck rolled over a mechanic, shattering multiple ribs and puncturing a lung.
This was an accident that had a reasonable potential to cause death: indeed,
the miner was lucky to survive such a rollover. There will not be any
inferences drawn regarding records not admitted by this Court. Even if the
Respondent was correct in arguing that this accident did not, on its face,
present a danger to a miner’s life, it would still be incorrect in its
definition of qualifying accident, according to Commission precedent.

The definition of accident, as relevant for 103(k) purposes,
was articulated by the Commission in Revelation Energy, LLC, 35 FMSHRC
3333 (Nov. 2013). In Revelation Energy , the Respondent propelled a
two-ton rock off the mine property while performing blasting operations. The
rock rolled through a residential yard and came to rest near a local home. Id.,
at 3334-5. No one was injured. Id. The Respondent argued in that case that the
blasting incident did not constitute an accident for Section 103(k) purposes,
as it did not fit within the definition of accident set forth in Section 3(k)
of the Mine Act or 30 C.F.R. § 50.2(h). [17]
Id., at 3335-6.

The Commission rejected that argument, reasoning that the list
provided in 30 C.F.R. § 50.2(h) was designed to be non-exhaustive, as it begins
the list with the word, “includes.” Id., at 3337. Instead, the Commission reasoned
that:

the
plain meaning of “accident” in section 3(k) includes more than the specific
events enumerated in section 3(k) and that the scope of section 3(k)’s
definition of “accident” is ambiguous. We accord deference to the Secretary’s
reasonable interpretation of “accident” as including events that are similar in
nature to, or have a similar potential for injury or death as, the events
specifically listed in section 3(k).

Revelation Energy , LLC ,
at 3336.

This Court finds that an accident did take place that falls
within the scope described by the Commission in Revelation Energy , LLC ,
as this accident had a similar potential for injury or death as ones described
in 30 C.F.R. § 50.2(h).

The Respondent’s apparent confusion of 103(j) and 103(k)
control orders necessitates some explanation of the differences between the two
types of control orders. 103(j) and 103(k) Orders are both typically described
as control orders in Commission decisions. See, e.g., Small Mine Development ,
37 FMSHRC 1892 (Sept. 2015) (referring to 103(j) orders as “control orders,”); Pocahontas
Coal Co. , 38 FMSHRC 157 (Feb. 2016) (referring to 103(k) orders as “control
orders.”)

The Commission has stated that “Section 103(k) … empowers an
authorized representative of the Secretary to issue such orders as he deems
appropriate to insure the safety of any person in a mine in the event of an
‘accident’ at the mine.” Revelation Energy , at 3336. Continuing, the
Commission observed that “Section 103(k) constitutes a broad grant of
discretionary authority to the Secretary to protect miners in the event of a
mine accident.” Id., at 3338. [18]
The Commission quotes the Senate Report, detailing that “[t]he grant of
authority . . . in Section [103(k)] to issue orders is intended to provide the
Secretary with flexibility in responding to accident situations.” Revelation
Energy , 35 FMSHRC 3333, 3338, citing S. Rep. No. 181, at 29 (1977), reprinted
in Senate Subcomm. On Labor, Comm. On Human Res., Legislative History of
the Federal Mine Safety and Health Act of 1977 at 617 (1978). [19]

In contrast, 103 (j) Orders are strictly cabined to those
circumstances involving active rescue and recovery of miners. Indeed, the
Commission has found that 103 (j) Orders are invalid “in the absence of rescue
and recovery work.” Big Ridge Inc ., 37 FMSHRC 1860, 1864 (Sept. 2015). In
other words, “the Secretary’s authority to issue any section 103(j) control
order … occurs in the event of an accident where there is ‘rescue and recovery
work.’” Id. In other circumstances concerning safety, if the Secretary of Labor
or his agent seeks to control a mine under the Act, the proper vehicle is the
103(k), not the 103(j), Order. There is no “rescue and recovery” requirement
for 103(k) control orders.

The Respondent’s brief contains the following line of argument:

A
103(j) Order gives MSHA authority to take control of rescue and recovery work
to see that the work is performed safely and miners are not put at risk. There
is no evidence that the operator should have been limited in immediately
releasing Mr. Hensley from the grip of the tire. When MSHA issues a 103 (j)
Order there should be some rescue or recovery work that needs to be performed.

Resp’t’s Post-Hearing Br., 10.

It must be noted that Citation No. 8299679 alleges a violation
of Section 103(k) of the Mine Act. S. Ex. 2. The Secretary has not alleged a
violation of Section 103(j) of the Mine Act. [20]

In essence, the Respondent asks this Court to invalidate a 103(k)
Order because it would be invalid if it were a 103(j) Order. But the rescue and
recovery requirement applied to 103(j) Orders is not relevant toward
determining the validity of this 103(k) Order.

On this basis, the Respondent’s argument that the Secretary’s
failure to perform rescue or recovery work vitiates the 103(k) Order in this
case is not relevant. While similar, 103(j) and 103(k) Orders are distinct from
one another and concern separate legislative goals.

Under 103(k), MSHA possesses plenary power to issue orders
after an accident to protect the safety of all persons in the affected area. This
103(k) Order was a proper exercise of the Secretary’s broad discretionary
authority. It was issued consistent with the primary purpose of the Mine Act:
safeguarding the health and safety of the nation’s miners.

This Court finds the 103(k) Order in this matter was lawfully
issued by a duly authorized representative of the Secretary after a qualifying accident.

C.     The Respondent
Violated the Terms of the (k) Order

On September 25, 2014, the 103(k) Order at issue before the
Court was modified to release the blue International mechanic’s truck; the same
103(k) Order stated that “the red Autocar grease truck #7175 still remains
under the affected 103(k) Order.” S. Ex. 1.

When Inspector Robinson returned to the mine on November 7,
2014, he was informed by a mine mechanic that wheels and tires had been
reattached to the grease truck. Tr. 96-7. Robinson, as MSHA’s designated
accident inspector for this matter, would typically permit or deny 103(k) Order
modifications. Tr. 97. In an effort to get to the bottom of this apparent 103(k)
Order violation, Robinson was told first that Mark Huffman, safety director of
the mine, had permitted work to be done on the affected vehicle. Tr. 97. Mark
Huffman was not authorized to issue, modify, or disregard 103(k) Orders. Mark
Huffman denied authorizing the work. Robinson was then told that the anonymous
authorizer was possibly Inspector Dustin Rutherford. Tr. 97. Inspector
Rutherford, while authorized to issue and modify 103(k) Orders, denied allowing
work to be done on the truck. Tr. 97.

At hearing, Inspector Robinson testified that, in conversation
with Inspector Dustin Rutherford, he learned that Rutherford had denied the
Respondent’s verbal request to modify the 103(k) Order some time earlier. Tr.
101.

Beyond the multiple tires and wheels reattached to the vehicle,
a grease drum, two ladders, and a fuel hose were removed. S. Ex. 2., Tr. 98. At
hearing, the Respondent offered no evidence to suggest that MSHA personnel had
permitted this work to be done. The Respondent offered no evidence of
mitigation or justification for the actions of the operator and its agents. The
fact that personnel at Beech Creek sought to justify their actions by claiming
an Inspector had authorized those actions demonstrates they were aware of the
procedures for modifying a 103(k) Order. It appears that the operator’s agents,
perhaps frustrated over the truck’s lengthy sequestration under the control
order, simply cannibalized the truck for parts.

The Respondent therefore violated the terms of the 103(k) Order.

D.     The Violation
was Properly Designated as “Reckless Disregard.”

“Reckless disregard” is described in Part 100 as constituting
those circumstances where “[t]he operator displayed conduct which exhibits the
absence of the slightest degree of care.” 30 C.F.R. § 100.3.

Judge McCarthy summarized Judge Paez’s analysis of the words
“reckless disregard” in the absence of any statutory definition:

As Judge Paez recently noted in   Stillhouse Mining ,
supra, Slip op. at 7, the term “reckless” is commonly understood as “without
thinking or caring about the consequences of an action [or inaction],”   citing The New Oxford American
Dictionary 1414 (Erin McKean ed., 2d ed. 2005). As a legal term, “reckless”
conduct is “[c]haracterized by the creation of a substantial and unjustifiable
risk of harm to others and by a conscious (and sometimes deliberate) disregard
or indifference to that risk; heedless; rash …. more than mere negligence: it
is a gross deviation from what a reasonable person would do.”   Black's Law Dictionary  1298 (8th ed. 2004). The term “disregard” is
commonly understood as “to treat without fitting respect or attention: to treat
as unworthy of regard or notice: to give no thought to: pay no attention
to.  Webster's Third New International Dictionary (Unabridged)  665 (1993). I note that for civil penalty
purposes,  30 C.F.R. §100.3 , Table X,
defines “reckless disregard” as “conduct which exhibits the absence of the
slightest degree of care.”

Pine Ridge Coal , 33 FMSHRC 987, 1027 at
n. 42 (Apr. 2011).

The Secretary’s evidence in support of its reckless disregard
designation is persuasive. First, the Secretary argues that an inspector
verbally refused a request to modify a 103(k) Order but work was nevertheless
performed on the sequestered vehicle. Sec’y’s Post-Hearing Br., 12. The
Secretary argues the negligence here is aggravated by the ease with which an
unsatisfied Respondent could seek out a modification from the inspector. Id.,
at 13.

In DQ Fire & Explosion , the Commission found that an
operator’s actual knowledge of a violation of a 103(k) Order, and failure to
act in compliance with federal regulations and orders, constituted high
negligence. [21]
DQ Fire & Explosion , 36 FMSHRC 3090, 3096-7 (Dec. 2014), aff’d ,
632 F. App'x 622, 625 (D.C. Cir., 2015). In this case, there is evidence in the
record that the Respondent’s agents knew how to modify a 103(k) Order. Tr. 129-130.
Moreover, when Inspector Robinson arrived on the mine site on November 7, 2014,
he met Terry Young, the mine mechanic, and foreman Bernie Harper. Tr.

96. A foreman’s presence, and apparent supervision, of the violation of a 103(k)
    Order is evidence that the operator, through its agent, was aware of work being
    done on the sequestered vehicle.

The 103(k) Order, already having been modified in the past at
the request of Kentucky Fuel Corporation personnel, is itself evidence that the
Respondent was familiar with the procedures for modifying a 103(k) Order.
Nevertheless, after a request for modification was denied, work was still
performed. If the Respondent was concerned that the terms of the 103(k) Order
were overly burdensome, a formal request to modify the 103(k) Order would have
been a logical next step. There is no evidence the Respondent sought to modify
the 103(k) Order through written communication. The Respondent’s actions
suggest another decision was made. In the words of Inspector Robinson, “They
asked, and we said ‘No,’ and they did it anyway.” Tr. 101.

The fact that work was performed after a requested
modification was denied is indicative of reckless disregard, perhaps even “a
conscious (and sometimes deliberate) disregard.” Black's Law Dictionary  1298 (8th ed. 2004) . The operator’s
inability to name who authorized work on the sequestered vehicle,
despite a mine foreman’s knowledge of the performance of that work, is evidence
the operator failed to exhibit even “the slightest degree of care.” 30 C.F.R. §
100.3.

This Court finds the violation was one of reckless disregard.

VI.             
Penalty

The Act requires that the Commission consider the following
statutory criteria when assessing a civil penalty: (1) the operator’s history
of previous violations; (2) the appropriateness of the penalty to the size of
the business; (3) the operator’s negligence; (4) the operator’s ability to stay
in business; (5) the gravity of the violation; and (6) any good-faith
compliance after notice of the violation. Douglas R. Rushford Trucking ,
22 FMSHRC 598, 600 (May 2000); 30 U.S.C. § 820(i). The Commission is not required
to give equal weight to each of the criteria, but must provide an explanation
for any substantial divergence from the proposed penalty based on such
criteria. Spartan Mining Co. , 30 FMSHRC 699, 723 (Aug. 2008).

The Secretary proposed two special assessments in this matter.
For Citation No. 8299679, the Secretary proposed a penalty of $3,000. Sec’y’s
Post-Hearing Br., 14. For Citation No. 8299655, the Secretary proposed a
penalty of $52,500. The Court finds that the Secretary’s penalty assessments are
fair and necessary in this case. The Court examines both of the penalty
assessments through the statutory list of criteria provided in Section 110(i)
of the Mine Act.

Citation No. 8299655

History
of previous violations

The Secretary notes that while the mine has seen no past
violations of 30 C.F.R. § 77.404(c) of the Mine Act, the mine did have 18
violations of 30 C.F.R. § 77.404(a) in the fifteen months prior to the issuance
of the citations in this case. Sec’y’s Post-Hearing Br., 14. This factor is
aggravating, as 30 C.F.R. § 77.404(a) concerns the proper maintenance of
vehicles, and improper maintenance of a vehicle exacerbated the risk in this
violation.

The size of the operator

As the Secretary notes in his brief, the Respondent stipulated
that it mined 114,647 tons of coal in 2013 and 148,741 tons of coal in 2014 at
this mine. J.X. 1.

Negligence

The operator’s negligence in violating 30 C.F.R. § 77.404(c)
was high, as described supra . This is a significantly aggravating
factor, given the apparently mine-wide deficiencies in training in and or
supply of proper blocking materials. This Court also considers the length of
time it would take for the truck’s deficiencies to accumulate to the point as
depicted in the Secretary’s photographs.

Effect of penalties on operator’s
ability to remain in business

As the Secretary notes in his brief, the operator has
stipulated the penalties in this case will not affect the operator’s ability to
remain in business. This is a neutral factor.

Gravity

The gravity of Citation No. 8299655 was assessed as “reasonably
likely to cause a fatality.” See infra . The miner’s actual injuries in
this case do not constitute mitigation, as the condition of the vehicle, as
well as the deficient training and or supply of blocking materials, made a
fatal injury more likely than the actual injury suffered by the mechanic. Both
the Secretary and the Respondent’s witnesses testified that being completely
rolled over by a truck has a “reasonable potential to cause death.” The fact
that the mechanic was not completely rolled over was a matter of happenstance
and the gravity in this citation is a significantly aggravating factor.

The operator’s efforts at good faith
abatement

The record is bare of evidence that the Respondent moved in
good faith to abate these citations before MSHA’s intervention.

Citation No. 8299679

History
of previous violations

The Secretary notes that the mine has seen no past violations
of Section 103(k) of the Mine Act. Sec’y’s Post-Hearing Br., 14. This is a
neutral factor.

The size of the operator

As the Secretary notes in his brief, the Respondent stipulated
that it mined 114,647 tons of coal in 2013 and 148,741 tons of coal in 2014 at
this mine. J.X. 1.

Negligence

The operator’s negligence in violating Section 103(k) of the
Mine Act was evaluated properly as reckless disregard. Two possibilities
obtain: either the Respondent’s management ordered miners to disregard a 103(k)
Order, or mine management was so unconcerned with the requirements of the 103(k)
Order that it allowed work to be done. Regardless, the operator’s conduct was
inexcusable and no reasonable mitigation was offered by the Respondent to alter
the negligence calculus. This is a significantly aggravating factor.

Effect of penalties on operator’s
ability to remain in business

As the Secretary notes in his brief, the operator has
stipulated the penalties in this case will not affect the operator’s ability to
remain in business. This is a neutral factor.

Gravity

The gravity of Citation No. 8299679 was rated as “No Lost
Workdays” as no miner was injured, or reasonably could have been injured, when the
Respondent violated the 103(k) Order. Nevertheless as the Secretary notes in
his brief, the Respondent’s violation “could have compromised MSHA’s
investigation into the accident.” Sec’y’s Post-Hearing Br., at 15. The purpose
of 103(k) is, at least partially, to preserve evidence of a violation for
future or continuing investigation. S. Rep. No. 95-181, at 29. The gravity of
the Respondent’s violation, therefore, is aggravating.

The operator’s efforts at good faith
abatement

The record is bare of evidence that the Respondent moved in
good faith to abate these citations before MSHA’s intervention.

Delinquency

The Secretary’s brief offers a somewhat novel argument for
applying another criterion of assessment to the penalties in this case. The
Secretary argues that in order to deter future violations, when analyzing
special assessments, the Commission is not restricted to the criteria contained
within 110(i). Sec’y’s Post-Hearing Br., 16-7. Noting that Kentucky Fuel
Corporation has been delinquent in paying a large number of final citations and
orders, the Secretary argues that this pattern of delinquency should act as an
aggravating factor. Id., at 17, citing Kentucky Fuel Corporation ,
38 FMSHRC 632 (Apr., 2016) and West Alabama Sand & Gravel, Inc., 38
FMSHRC 1532 (June 28, 2016). According to the Secretary’s evidence, the
Respondent owes at least $8,000 in delinquent payments for violations that
became final orders over two years ago. Sec’y’s Post-Hearing Br., at 17.

The Commission recently described the operator’s history of payment
of penalties as “abysmal.” Kentucky Fuel Corporation , 38 FMSHRC 632, at

633. (Apr. 2016). In that decision the Commission noted that the operator had
     an outstanding penalty balance of $351,696.00. Id.

In his brief, the Secretary
contrasts the language of Sec’y o/b/o Johnson v. Jim Walter Res., Inc., 18
FMSHRC 841 (June 1996), and Black Beauty Coal Co ., 34 FMSHRC 1856 (Aug.
2012). Sec’y’s Post-Hearing Br., at 16.

In Sec’y o/b/o Johnson v. Jim Walter Res., Inc ., the
Commission held that “the judge abused his discretion . . . in basing the
assessment, in part, upon JWR’s alleged delinquency in the payment of
penalties. An operator’s delinquency in payment of penalties is not one of the
criteria set forth in section 110(i) for consideration in the assessment of
penalties.” Sec’y o/b/o Johnson v. Jim Walter Res., Inc ., 18 FMSHRC 841,
at 850 (June 1996).

In Black Beauty Coal Co ., however, the Commission
reasoned that “[s]imply put, we refuse to require our Judges to apply blinders
. . . and to ignore the central and most obvious purpose of civil penalties –
to ensure operator compliance with safety measures – when deciding whether such
penalties are appropriate. Deterrence is a principle basic to and underlying
the entire statutory scheme of imposing civil penalties.” Black Beauty Coal
Co ., 34 FMSHRC 1856, at 1869 (Aug. 2012).

The Court agrees with Judge Feldman that including delinquency
of payment when considering the Secretary’s penalty assessment is consistent
with the protective purpose of the Mine Act. West Alabama Sand & Gravel,
Inc. , 38 FMSHRC 1532, at 1540 (June 2016). The Court also agrees with Judge
Feldman’s reasoning that refusing to consider the broader deterrent purpose of
civil penalties is an elevation of form over substance, and inconsistent with
the original purpose of civil penalties. Id. In Black Beauty Coal Co. ,
the Commission rejected the elevation of form over substance, and reminded ALJs
that “the central and most obvious purpose of civil penalties” is to ensure
operator compliance. Black Beauty Coal Co ., at 1869. As Judge Feldman
reasoned, consideration of delinquency during a penalty assessment may induce
operators’ toward further compliance:

I
am cognizant that increasing the civil penalty in view of West Alabama's
pattern of delinquency raises an obvious question: How will raising the civil
penalty foster compliance in view of West Alabama's apparent disinclination to
pay? Encouraging compliance is a two-step process. As noted, compliance is
achieved through the payment of civil penalties. Thus, step one involves
motivating delinquent mine operators to pay civil penalties by increasing
future assessed penalties that, if not paid, become a debt owed to the federal
government, collectable through an action brought by the Department of Justice.
In step two, by encouraging the payment of civil penalties, the Mine Act's goal
of deterrence and future compliance hopefully will be achieved.

West Alabama Sand & Gravel, Inc. ,
at 1540.

This Court will not close
the door on considering delinquency in payment for penalty purposes in a future
decision. However, the Secretary’s penalty assessments are fair without
considering Kentucky Fuel Corporation’s history of delinquency in payment. The
gravity of Citation No. 8299655 was significantly aggravating. The negligence
exhibited by the Respondent in each of these citations was inexcusably high,
but in particular, Citation No. 8299679 was the product of reckless disregard.
In both cases, the addition of another aggravating factor is unnecessary. The
Court therefore did not consider delinquency of payment in affirming the
Secretary’s penalty assessments.

VII.          
Order to Pay

Citation No. 8299655 is affirmed as issued. Citation No.
8299679 is affirmed as issued.

Accordingly, it is hereby ORDERED that the operator pay
a penalty of $55,500.00 within 30 days of the issuance of this order. [22]

/s/ William S. Steele

William S. Steele

Admini strative
Law Judge    

Distribution:

Thomas J. Motzny, Esq., Office of the
Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville,
TN 37219

James F. Bowman, Litigation
Representative, P.O. Box 99, Midway, West Virginia, 25878

[1]
The joint stipulations in this case are labeled JX-1. The Secretary’s Exhibits
are labeled S. Ex. The Respondent did not submit exhibits for consideration.

[2]
Brian Robinson was a surface specialist with MSHA. Tr. 13-4. Prior to this
position, he was a general surface CMI for his first five years with MSHA. Tr.

14. Robinson had been employed variously as a highwall miner, electrician,
    foreman, and equipment operator in mining operations for almost 12 years when
    he began work at MSHA in October of 2006. Tr. 14-5. Robinson has certifications
    in low, medium, and high voltage electrical “cards,” as well as a foreman’s
    certification. Tr. 15.

[3]
Melvin Wolford is a surface specialist in the Pikeville, Kentucky field office
and began work for MSHA in 2006. Tr. 62-3. Prior to that, Wolford had roughly
10 years of mining experience, beginning his career in 1995 before moving on to
Massey New Ridge Mining, where he worked as a highwall miner and equipment
operator. Tr. 61-2. While at Massey Wolford had the opportunity to operate and
work on bulldozers, loaders, and rock trucks and left in 2000 to take work at
Nice Winter Coal Group. Tr. 62. Wolford continued as an equipment operator,
acquiring his foreman’s card in 2005. Tr. 63.

[4]
At hearing, Inspector Wolford ruled out the possibility that the truck was out
of gear, in forward gear, or neutral at the time of the accident. Tr. 82. “If
it would have been in neutral or would not have been in gear or would have been
in forward gear, the truck would have went forward instead of backwards and
went up on the guy.” Tr. 82. Inspectors did not test whether the vehicle would
remain stationary if the truck was shifted into neutral and then started. Tr.
83-5.

[5]
At hearing, Inspector Robinson testified that the blue truck was also
sequestered under the 103(k) Order as it was the mechanic’s personal vehicle,
supplied privately by him, and not the focus of any investigative work. Tr.
106-7.

[6]
Huffman was employed by Blue Stone Industries, another mine operator, at the
time of hearing. Tr. 133. He had 11 years of mining experience and a number of
professional certifications, including in mine rescue, as an electrician, a
surface and underground miner, as a first class mine foreman, MSHA instructor,
and as a certified dust sampler. Tr. 133-4. At the time of the accident,
Huffman had been Director of Health and Safety at Beech Creek, working for
Kentucky Fuel Corporation. Tr. 134-5. Part of his duties included independent
accident investigations. Tr. 134-5.

[7]
At hearing, Huffman testified that Ritz was in the mine office at the time of
the accident and was not in a position to observe the accident itself. Tr. 147.

[8]
The Respondent’s representative, James Bowman, objected at hearing to the
admission of Secretary’s Exhibits 3-17. The Respondent admitted that “[i]t
certainly is the truck. It represents what was there,” but the identity of the
photographer was unknown. Tr. 88. Based on the Respondent’s own admission, the
photographs are a faithful representation of the vehicle and its situation
around the time of the accident. The Court admitted the photographs into
evidence at hearing. Tr. 88-9.

[9]
Despite multiple alleged deficiencies with the truck’s condition, Robinson
issued one citation with multiple deficiencies listed on it, rather than
multiple individual citations. Tr. 25. Citation No. 8300622 is not before the
Court.

[10]
Asked by the Solicitor how common manufactured wheel chocks are in surface
mines, Robinson testified that they were on just about every mine-site he
visited, located usually on mechanic’s trucks for easy access. Tr. 49. Robinson
also testified that it is the company’s responsibility to purchase and supply
wheel chocks. Tr. 49.

[11]
Asked why this test was performed, Inspector Wolford explained that in order to
perform a more traditional test, MSHA would be required to correct all the
deficiencies on the brake system. To do so would’ve rendered the test itself of
negligible investigatory value, as the test was designed to determine if the
truck, in the condition it was in at the time of accident, would pull through
its parking brakes in similar circumstances. Tr. 78.

[12]
See also § 100.3, Table X- Negligence, which provides for 0 penalty
points where there is “no negligence” (the operator exercised diligence and
could not have known of the violative condition or practice); 10 penalty points
for “low negligence” (the operator knew or should have known of the violative
condition or practice, but there are considerable mitigating circumstances); 20
penalty points for “moderate negligence,” (the operator knew or should have
known of the violative condition or practice but there are mitigating
circumstances); 35 penalty points for “high negligence” (the operator knew or
should have known of the violative condition or practice and there are no
mitigating circumstances); 50 points for “reckless disregard” (the operator
displayed conduct which exhibits the absence of the slightest degree of care).

[13]
Under a traditional negligence analysis the operator is negligent if it fails
to meet the requisite standard of care – a standard of care that is high
under the Mine Act. Brody , at 1702.

[14]
Huffman could not recall any additional defects on the truck at hearing, but
for a broken spring. Tr. 151.

[15]
The Respondent’s representative, in a section of the Post-Hearing Brief titled
“The Secretary failed to sustain her burden of proving by substantial evidence
that Citation No. 8299679 was a violation of Section 103(k),” appears to
conflate 103(j) and 103(k) control orders in his brief. The Respondent’s
representative cites throughout to Big Ridge , Inc ., 37 FMSHRC
1860 (Sept. 2015), in support of his assertion that “[w]hen MSHA issues a 103
(j) Order there should be some rescue or recovery work that needs to be
performed . . . there was no rescue or recovery work performed[.]” Resp’t’s
Post-Hearing Br., 10. In Big Ridge, Inc ., the Commission ruled that the
definition of “accident” under sections 103(j) and 103(k) is to be found in Revelation
Energy , discussed infra . The Respondent failed to address the
Commission’s explicit rejection of its argument regarding the definition of
accidents, despite citing to the decision in support of the proposition that
the 103(k) Order in this case did not concern the rescue or recovery of miners.

[16] Within this
time period Inspector Fannin permitted work to be done on an unrelated vehicle
suggesting that the operator and its agents were well aware- even within hours of
a control order’s issue- of the procedures regarding control orders. Tr. 92-3.

[17]
30 C.F.R. § 50.2(h), also known as the “dirty dozen,” contains a non-exhaustive
list of twelve types of reportable accidents.

[18]
Citing to the opinion of Miller Mining Co. v. FMSHRC , the Commission
quotes the 9th Circuit’s reasoning that “Section 103(k) gives MSHA plenary
power to make post-accident orders for the protection and safety of all
persons.” Revelation Energy, LLC , 35 FMSHRC 3333, citing Miller
Mining Co. v. FMSHRC , 713 F.2d 487, 490 (9th Cir. 1983).

[19]
The Senate Report continues, “Further, the circumstances surrounding the
accident may be such that [an] order necessary to preserve evidence may be
appropriate. It is intended that by preventing possible destruction of
evidence, the Secretary may be better able to determine the cause of the
accident and thereby prevent the future occurrence of a similar accident.” S.
Rep. No. 95-181, at 29.

In other words, the Respondent’s contention that the
103(k) Order was improper due to the length of time it was in place conflicts
with the legislative aims of the 103(k) Order, which include the preservation
of evidence.

[20] 103(j) Orders
are not predicates of 103(k) Orders. Even if the (j) Order were invalid, it
would have no bearing on the validity of the 103(k) Order. This point was made
clear in Jim Walter Resources , 37 FMSHRC 1868 (Sept. 2015), by the
Commission: “ JWR further challenges the section  103 ( k )
order on the basis that the Mine Act does not permit the Secretary to convert a
section  103 ( j ) order to a section  103 ( k )
order. The Mine Act permits an inspector present at the mine to issue
a  103 ( k ) order to protect persons in the mine. We will not exalt
form over substance by finding a  103 ( k )
order invalid because it was issued as a conversion of a  103 ( j )
order. Thus, although we determine that the section  103 ( j )
order is invalid, the (k) order meets all the requirements of the Mine Act and
is an independently valid order .” Jim Walter
Resources, Inc. ,
37 FMSHRC 1868, at 1871 (Sept. 2015), emphasis added.

[21]
DQ Fire & Explosion also saw the Commission consider whether an
alleged informal process of modification could mitigate a Respondent’s
negligence in violating a 103(k) Order. In that case, the Commission affirmed
the ALJ’s reasoning that DQ offered no evidence why a belief in an alleged
informal modification process was reasonable. DQ Fire & Explosion ,
at 3094. The Respondent argues in its brief that because Inspector Robinson
apparently allowed work to be done on the affected truck once during accident
reconstruction without a formal modification, the Respondent’s agents were
justified in later violating the 103(k) Order. Resp’t’s Post-Hearing Br., 12.

It is not clear from the transcript whether what
Robinson did constituted a modification of the 103(k) Order. Tr. 120-2. The
Respondent argues that because the violation of the 103(k) Order did not change
the scene of the truck at time of accident, it was therefore reasonable for the
operator’s agents to violate that Order. Resp’t’s Post-Hearing Br., 12. This
rationale was apparently derived from Robinson’s willingness to remove tires
from the truck on September 24 without a 103(k) Order modification, in order to
facilitate accident investigation. Tr. 120. However, the 103(k) Order was
modified numerous times on September 24, according to Inspector Robinson. Tr.
93-4. It is unreasonable to assume that the multiple modifications on September
24 were trumped by a single alleged informal modification made on the same day.
The Respondent could not reasonably rely on this single day occurrence to
justify violating the 103(k) Order.

[22]
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