Secretary of Labor v. Kentucky Fuel Corporation

Plain-English summary

Kentucky Fuel Corporation operated the Beech Creek Surface Mine, where a mechanic worked beneath an autocar grease truck without blocking it against motion. The truck started and rolled about two feet, causing several broken ribs and a punctured lung; the mechanic later recovered fully. MSHA cited the company under 30 C.F.R. § 77.404(c), designated the violation as significant and substantial and highly negligent, and proposed a $52,500 penalty. Only the negligence finding was before the Commission. The Commission affirmed high negligence because Kentucky Fuel failed to provide effective wheel chocks, making noncompliance and a resulting accident foreseeable. Commissioner Young concurred in the result and also relied on inadequate brakes, materials, training, and supervision.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.404(c)
• Outcome: The Commission affirmed the high-negligence finding, leaving the Judge's $52,500 penalty undisturbed.
• Key point: An operator's failure to provide suitable blocking materials can independently support high negligence when that failure makes a violation and accident foreseeable.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY
OF LABOR,                            :        

MINE SAFETY AND HEALTH                  :                                

ADMINISTRATION (MSHA)                     :         Docket No. KENT
2015-383

:                         

v.                                              
:                                      

:                                                        

KENTUCKY FUEL CORPORATION          :

BEFORE: Althen, Acting Chairman; Jordan, Young, and Cohen,
Commissioners

DECISION

BY: Althen, Acting Chairman; Jordan and Cohen, Commissioners

This proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). The
case involves an accident at Kentucky Fuel Corporation’s Beech Creek Surface
Mine, in which a truck rolled backward and injured a mechanic who was working
on the vehicle. The Department of Labor’s Mine Safety and Health Administration
(“MSHA”) issued Kentucky Fuel a citation alleging a failure to block machinery
against motion while conducting repairs, in violation of 30 C.F.R. § 77.404(c). [1]

MSHA designated the alleged violation as significant
and substantial (“S&S”) [2]
and the result of high negligence, and the Secretary of Labor (“Secretary”) proposed
a specially assessed penalty of $52,500. After a hearing on the merits, an
Administrative Law Judge issued a decision affirming the citation as issued and
assessing the proposed penalty. 38 FMSHRC 2905 (Dec. 2016) (ALJ).

The only issue before the Commission is the negligence
determination. [3]
We affirm in result the Judge’s finding of high negligence. The Judge
reasonably found that Kentucky Fuel failed to provide materials necessary for
the miner to comply with the mandatory safety standard.

I.

Factual and Procedural
Background

A.    
Accident and Subsequent MSHA Investigation

On the evening of September 23, 2014, the driver of an
autocar grease truck at Kentucky Fuel’s Beech Creek Mine discovered that the
vehicle would not start and called for a mechanic. When the mechanic arrived,
he lay down under the truck behind the driver’s side front wheel and asked the
driver (who was still in the cab) to try starting the truck. Although crib
blocks apparently were available, the miner did not place any between or on
either side of the tires. The starter would not turn over, so the mechanic hit
the starter with a hammer to move it into a better position. The truck
immediately started, and rolled back approximately two feet; the front tire
rolled into the mechanic, causing several broken ribs and a punctured lung. The
mechanic was airlifted to a hospital. He eventually recovered fully and
returned to work. Only the driver and the mechanic were present at the time of
the accident. Tr. 19-24, 30.

Kentucky Fuel conceded that the truck was not blocked
against motion when the accident occurred. Tr. 21. Shortly afterward, foreman
Steve Ritz placed wooden crib blocks between the truck’s rear tires. Kentucky
Fuel’s Vice President of Health and Safety, Pat Graham, visited the accident
site later that evening to preserve the scene, leaving the crib blocks in place.
MSHA Inspectors arrived on site the next day and replaced the crib blocks with
wheel chocks. Tr. 19-24, 30.

After an investigation, MSHA Inspector Brian Robinson
issued Citation No. 8299655. The citation alleges that the mechanic failed to
block the truck against motion before conducting repairs, and designates the violation
as highly negligent. The citation notes that suitable wheel chocks were not
available at the mine and had to be provided by MSHA. Gov. Ex. 3. At the
hearing, Robinson testified that the high negligence designation was due to
Kentucky Fuel’s failure to provide proper blocking materials, i.e., wheel
chocks. He conceded that crib blocks may be sufficient for certain types of
vehicles, but stated that wheel chocks were required to properly block this
type of truck against motion. The truck at issue had large tires and a gross
weight vehicle rating of 48,000 pounds. Robinson explained that curved wheel
chocks better distribute weight and energy, while crib blocks (which have 90
degree angles) are “apt to scoot” when used to block a truck of this weight and
tire diameter. Tr. 30-32, 45-46; see Gov. Exs. 6, 9 (photographs of crib
blocks and wheel chocks).

Robinson testified that wheel chocks are extremely common
on surface mines, yet were not available at this mine. He did not see any wheel
chocks on-site, and when interviewed, mine personnel did not know where wheel
chocks were located. He concluded that, since the necessary tools to properly block
the truck (wheel chocks) were not available, Kentucky Fuel should have foreseen
the mechanic’s failure to properly block the truck. Tr. 30-31, 41-42, 49, 59. He
stated that the citation was intended to “get [miners] the supplies they need
to do the jobs properly.” Tr. 44-45.

Mark Huffman, Kentucky Fuel’s Director of Health and
Safety, did not confirm or deny the absence of wheel chocks; instead, he stated
that wooden crib blocks were available at the mine and can effectively block
trucks against motion when deployed properly. Tr. 149, 152, 161. He also
testified that the foreman had no reason to expect the mechanic to fail to
block the truck against motion, because the mechanic was properly trained. Tr.
147-48.

Meanwhile, MSHA Inspector Melvin Wolford examined the
truck. He testified that the brakes set and released properly, but had several
deficiencies that would have prevented the truck from stopping under accident
conditions, as well as an inoperative backup alarm. [4] Wolford
conducted a “function” test of the truck and found that when the conditions of
the accident were replicated, the brakes did not hold. Tr. 64-71. Conversely, Huffman
testified that Kentucky Fuel’s own inspection of the truck revealed only a
broken spring on a brake canister, and that a “pull-through” test established
that the brakes were working properly. Tr. 139-40, 151.

B.     
Judge’s Decision and Arguments on Appeal

The Judge affirmed the citation in its entirety. He
noted that Kentucky Fuel stipulated to the violation, and found that the
violation was S&S because the failure to block against motion increased the
likelihood of a fatal crushing injury. 38 FMSHRC at 2916, 2918. Kentucky Fuel
does not contest the violation or S&S designation.

The Judge also concluded that the violation was
attributable to high negligence.      Crediting Inspector Robinson’s testimony,
the Judge found that wooden crib blocks were insufficient for this type of
vehicle, and that proper blocking materials (wheel chocks) were not readily available.
He also found that Ritz and Graham’s reliance on crib blocks rather than wheel
chocks was persuasive evidence that mine personnel were not trained in proper
blocking techniques. Finding that the training and materials supplied by
Kentucky Fuel were plainly inadequate to meet the requirements of the safety
standard, the Judge concluded that Kentucky Fuel’s conduct fell far short of
its duty of care. Id. at 2919-22. The Judge also credited the
inspectors’ testimony regarding the condition of the truck’s braking system and
found that Kentucky Fuel failed to meet its duty of care by failing to remedy
these defects. Taking the deficiencies of the truck together with the
inadequate training and materials, the Judge concluded that the mechanic’s conduct
was reasonably foreseeable and that Kentucky Fuel had been highly negligent. Id.
at 2923-25. Based on aggravating factors including high negligence and high
gravity, the Judge assessed a penalty of $52,500, the amount proposed by the
Secretary.

In its petition for discretionary review, Kentucky
Fuel claims that the record shows no evidence of improper training,
supervision, or discipline, and therefore the Judge’s finding of high
negligence is not supported by substantial evidence. PDR at 3-6. Kentucky Fuel
also contests the Judge’s factual finding regarding the insufficiency of crib
blocks and states that the issue of blocking material is irrelevant to the
negligence analysis. Id. at 6.

II.

Disposition

The issue in this matter is whether the Judge erred in
concluding that the mechanic’s failure to block the truck against motion while
conducting repairs was attributable to high negligence on the part of Kentucky
Fuel. The Commission applies the substantial evidence test when reviewing a
Judge’s conclusion regarding an operator’s negligence. See, e.g. , Jim
Walter Resources, Inc. , 36 FMSHRC 1972, 1976 (Aug. 2014). “Substantial
evidence” means “such relevant evidence as a reasonable mind might accept as
adequate to support [the Judge’s] conclusion.” Rochester & Pittsburgh
Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229 (1938) ).
As discussed further below, the record supports a finding that Kentucky Fuel’s
failure to provide effective blocking materials constituted a significant
breach of its duty of care in this instance. [5]
Accordingly, we affirm the Judge’s high negligence determination.

The Commission employs a traditional negligence analysis,
under which an operator is negligent if it fails to meet the requisite standard
of care accompanying the mandatory standard at issue. The Commission considers
“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 regulations.” Knight Hawk Coal, LLC ,
38 FMSHRC 2361, 2367 (Sept. 2016), citing Mach Mining, LLC v. Sec’y of
Labor , 809 F.3d
1259, 1263-65 (D.C. Cir. 2016) . The “gravamen of high negligence is
that it ‘suggests an aggravated lack of care.’” Brody Mining, LLC , 37
FMSHRC 1687, 1703 (Aug. 2015) (citation omitted).  

Although the conduct of a rank-and-file miner is not
imputable to the operator for negligence purposes, “[t]he fact that a violation
was committed by a non-supervisory employee does not necessarily shield an
operator from being deemed negligent.” A.H. Smith Stone Co. , 5 FMSHRC
13, 15-16 (Jan. 1983). To determine whether the operator has met its duty of
care in such circumstances, we look at whether the operator has taken
reasonable steps to prevent the rank-and-file miner’s violative conduct. Knight
Hawk , 38 FMSHRC at 2369. For example, “we look to such considerations as
the foreseeability of the miner’s conduct, the risks involved, and the
operator’s supervising, training, and disciplining of its employees to prevent
violations of the standard [at] issue.” A.H. Smith Stone , 5 FMSHRC at
15-16.

Here, the Judge determined based on the record that
the materials needed to properly block the vehicle against motion were not
available at the mine site, mine personnel had not been adequately trained in blocking
techniques, and the truck’s brake system was not adequately maintained. Based
on these findings, he concluded that the mechanic’s violative conduct was
foreseeable, and that Kentucky Fuel’s conduct fell far short of its duty of care.
38 FMSHRC at 2919-25. Without addressing the issues of truck maintenance or
training, we find that the record supports the Judge’s findings regarding the
unavailability of effective blocking materials and the foreseeability of the
mechanic’s conduct. [6]
On these narrow grounds, we conclude that substantial evidence supports a
finding of high negligence. [7]

The record supports the Judge’s factual finding that
materials necessary for compliance were not available to the mechanic. Inspector
Robinson testified that the truck was too large (in both weight and tire
diameter) to be effectively blocked against motion by a crib block. He
explained that, given the difference in shape and resulting difference in
weight distribution, a crib block would be “apt to scoot” while a wheel chock
would hold the vehicle. Tr. 31-32. The Judge found that a crib block could not
effectively block a truck of this type. 38 FMSHRC at 2921. The Judge found Inspector
Robinson’s testimony in this regard to be “persuasive.” Id. Conversely, Safety
Director Huffman stated more generally that properly configured crib blocks can
be very effective at blocking vehicles against motion. Tr. 149. A Judge’s
credibility determinations are entitled to great weight and may not be overturned
lightly. Island Creek Coal Co. , 14 FMSHRC 1537, 1541 (Sept. 1992). There
is no basis here to overturn the Judge’s decision to credit Inspector Robinson
regarding the efficacy of various blocking materials. Substantial evidence
supports the Judge’s finding that wheel chocks (or something more than crib
blocks) were necessary to effectively block this type of vehicle against
motion. [8]

The Judge also found that wheel chocks were not
available to the mechanic, and substantial evidence supports that finding. Inspector
Robinson testified that wheel chocks were not present at the mine; he did not
see any on-site, and mine personnel interviewed by the inspector did not know
where wheel chocks were located. Tr. 30-31, 41-42, 49, 59. When Safety Director
Huffman was asked whether there were wheel chocks on the property, he did not
answer directly, stating only that crib blocks were available. Tr. 152-53. Considering
the testimony of Inspector Robinson and Safety Director Huffman, the record reasonably
supports a finding that wheel chocks were not available.

Taken together, these facts support a finding that Kentucky
Fuel was highly negligent. As Inspector Robinson noted, operators are responsible
for supplying miners with safety equipment. Tr. 49. We look to the actions of a
reasonably prudent operator to determine duty of care. Knight Hawk , 38
FMSHRC at 2367. A reasonably prudent operator would provide materials necessary
for compliance with safety standards; the record here shows that Kentucky Fuel failed
to do so. Moreover, this was a particularly significant breach of the
operator’s duty of care. Failing to provide materials necessary for compliance means
that a miner cannot comply with the safety standard. Kentucky Fuel’s
failure to ensure that proper blocking materials were available rendered the mechanic’s
violative conduct reasonably foreseeable.  This reasonably supports a finding
that Kentucky Fuel was highly negligent in failing to provide materials necessary
for compliance with the standard.

We reject Kentucky Fuel’s argument that the issue of
blocking material is irrelevant to the negligence analysis. PDR at 6. The
standard requires vehicles to be effectively blocked against motion
while repairs are conducted. See supra note 5. The availability of
proper materials to comply with the standard, i.e., materials adequate to
effectively block the vehicle against motion, is clearly relevant to whether
the operator met its duty of care. If an operator fails to supply the materials
that a reasonably prudent operator would have supplied to ensure the truck is
performing safely, it cannot avoid responsibility when a miner uses inadequate
or no materials. [9]

With respect to Kentucky Fuel’s argument that there is
no specific evidence to support a finding of inadequate training, supervision,
or discipline, the outcome in this case flows naturally from the absence of
sufficient blocking materials and is not dependent upon adverse findings on
these issues. [10]
Considering the totality of circumstances, Kentucky Fuel’s failure to provide
effective blocking materials is fully sufficient under the substantial evidence
test to sustain a finding of high negligence. In light of the absence of
materials the Judge reasonably found essential for safe performance of the
work, the best trained and supervised mechanic could not have performed the job
safely. [11]

As a final matter, we acknowledge the seriousness of
the mechanic’s actions in failing to use any material to block the truck
against motion while conducting repairs. However, that does not negate Kentucky
Fuel’s failure to meet its duty of care. The issue in this matter is whether
Kentucky Fuel was highly negligent in failing to take reasonable steps to
prevent the mechanic’s violative conduct. The record supports a finding that
due to Kentucky Fuel’s actions, the mechanic could not have properly
blocked the truck against motion, regardless of his intentions.

In sum, substantial evidence supports the Judge’s factual
findings that wheel chocks were necessary for compliance with the safety
standard in this instance, yet Kentucky Fuel failed to ensure that they were
available. This failure rendered the mechanic’s violative conduct reasonably foreseeable.
Given the importance of providing materials necessary for compliance, the
record reasonably supports the Judge’s finding that Kentucky Fuel fell far
short of its duty of care, i.e., it displayed the “aggravated” lack of care
required for high negligence. Based on the evidence regarding Kentucky Fuel’s
failure to provide proper blocking materials, we find that substantial evidence
supports the Judge’s conclusion regarding high negligence.

III.

Conclusion

For the foregoing reasons, we affirm the
Judge’s determination that Citation No. 8299655 was attributable to high
negligence.

/s/
William I. Althen

William
I. Althen, Acting Chairman

/s/
Mary Lu Jordan

Mary
Lu Jordan, Commissioner

/s/
Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

Commissioner Young, concurring in the result:

I agree that the Judge’s decision should be affirmed,
but I disagree with the reasoning. We have noted that negligence is determined
holistically. Having approved of that formulation, we cannot unbundle the
Judge’s decision from his reasoning, as the majority has done, because the
Judge has given no specific weight to any of the conditions he found noteworthy
in finding high negligence here.

The Judge properly noted that
the Commission is not bound by MSHA’s Part 100 negligence formula. 38 FMSHRC at
2919-20. However, the Judge’s high negligence determination did not rest on the
sole basis asserted by the majority, the failure to provide proper materials
for blocking truck wheels during maintenance. Instead, the Judge relied upon a
variety of factors to support his conclusion.

If the mere failure to provide wheel chocks was sufficient
to persuade the Judge, one assumes he would have said so, rather than
expounding for several pages on other conditions that he deemed relevant. In
particular, the Judge dedicates nearly half of his negligence discussion to the
condition of the truck and its impact on the “foreseeability” of the
rank-and-file miner’s violation of the standard requiring the equipment to be
braked against movement.

The Judge’s focus is on the foreseeability
of the accident. But the negligence adheres to the violation itself—i.e., the
failure to block the truck against movement. This does not mean that the
condition of the truck is irrelevant to the violation. But the Judge—in a
departure from an otherwise exemplary opinion—appears to have misunderstood the
Secretary’s rationale for including the truck’s condition in its argument on
this violation.

In fact, the Judge himself questioned the
relevance of the Secretary’s evidence about the condition of the truck, which
was the subject of a distinct and uncontested citation for failure to properly
maintain the truck. Tr. 26-27. In response, counsel for the Secretary explained
that the condition of the truck made it more likely that the truck would move
because the brakes were incapable of holding it. Tr. 27. Counsel for the
Secretary said that “because the truck was in bad condition to begin with, that
it wasn’t just the—the failure to block it was maybe the last step in the chain
which caused the injury.” Tr. 27.

Thus, the Secretary made clear that the
condition of the brakes was a factor in the accident. However, the failure of
the brakes in the accident also materially contributed to the violation. We
know that the standard was violated here—not merely because the operator
conceded the violation, but because the truck was demonstrably not blocked from
unsafe movement when it rolled onto the mechanic working beneath it.

Thus, the brakes and their condition were
integral to the standard, and their poor maintenance and condition contributed
to the violation. This is the point the Secretary was trying to make. The evidence
of record supported the theory. The inspector testified that if the brakes had
been properly maintained, they would have held the truck, and that testing of
the same model under similar conditions confirmed this. The inspector also
tested the brakes of the truck at issue and found that they would not hold the
truck.

The very purpose of the truck’s braking system is to
prevent the truck from moving—to “block it against movement.” See U.S.
Dep’t of the Interior, Dictionary of Mining, Mineral and Related Terms
133 (1968) (“Brake” defined as a “device (as a block or band applied to the rim
of a wheel) to arrest the motion of a vehicle, a machine, or other mechanism
and usually employing some form of friction. A device for slowing, stopping,
and holding an object.”) (internal citations omitted). The failure of the
brakes to do so here is evidence of a violation of the standard.

This is crucial because the failure to
properly maintain or inspect the brakes reflected a broader and more troubling
lack of regard for safety. The majority focuses exclusively on the behavior of
the rank-and-file mechanic, but the condition of the brakes and the absence of
proper training and supervision are failures attributable to mine management.

Just as important, the condition of the brakes greatly
amplified the danger to anyone working beneath the truck, in combination with
the failure to use wheel chocks, a secondary device that would become relevant
only if the brakes failed to hold the vehicle. It is the convergence of these
failures that created a foreseeable deadly hazard here, and while the Judge
does not say that, the Secretary argued it distinctly. This convergence is
essential to the finding of high negligence, because without all of the elements
it might not be possible to discern the boundary between moderate and high
negligence here. We are essentially finding de novo that the failure to
provide necessary safety equipment is itself enough to constitute high
negligence without any consideration of the other circumstances cited by the
Judge.

I therefore also disagree with the majority’s exclusion of
training and supervision as relevant factors in the negligence assessment. Again,
the Judge found them relevant, and the record supports his decision to consider
an apparent lack of supervision and training. The record fails to provide any
evidence concerning the operator’s training, supervision, or familiarity with
wheel chocks—despite the fact that the inspector testified that chocks are used
at nearly every mine he inspects.

While the operator argues that the Secretary
introduced no evidence concerning its training or supervision in the use of
wheel chocks, it is noteworthy that a member of mine management used a crib
block and a large rock to block the truck’s wheels after the accident, and the
operator’s own representatives doggedly insisted at hearing that crib blocks
would have been sufficient. The operator cannot logically insist that the
Secretary further prove something it has essentially admitted, by deed and by
word, in the aftermath of the accident and on the record at the hearing. [12]

Taking all of the circumstances into account,
then, the conclusion of high negligence is supported by both the relative
indifference to the condition of the truck’s brakes and the general
carelessness regarding the proper use of materials to ensure the truck would be
blocked against movement. The operator’s imputable actions include not only the
failure to provide rank-and-file miners with the tools needed to work safely,
but a lack of focus on conditions such as the inspection and maintenance of the
truck’s brakes and the provision of training and supervision in proper
maintenance techniques, which were generally within management’s scope of
control.

The distinction between moderate and high
negligence is often legally significant. The fact that the operator not only
failed to properly maintain the primary system designed to prevent the truck
here from moving while miners worked beneath it, but also failed to provide or
ensure the use of proper secondary devices, created a high degree of danger and
evinces high negligence. While the Judge did not perfectly express the
relationship between the distinct breaches in the operator’s duty, he did
account for all of them in holding the operator to be highly negligent. We
should affirm him on that basis.

/s/
Michael G. Young

Michael
G. Young, Commissioner

[1] The
standard states: “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).

Docket No. KENT
2015-383 also contains a second citation related to these events, issued
pursuant to section 103(k) of the Mine Act. 30 U.S.C. § 813(k). This second
citation was affirmed by the Judge and is not contested on appeal.

[2]
The S&S terminology is taken from section 104(d)(1) of the Act, which
distinguishes as more serious any violation that “could significantly and
substantially contribute to the cause and effect of a . . . mine safety or
health hazard.” 30 U.S.C. § 814(d)(1).

[3]
Kentucky Fuel petitioned for review of the specially assessed penalty, as well
as the Judge’s negligence determination. The Commission accepted review of the
negligence issue, but denied review of the penalty issue.

[4]
These deficiencies were documented in a citation (not contested here) which
alleges a failure to maintain the truck in safe operating condition. Tr. 25-26.
The deficiencies included malfunctioning brake canisters, grease contamination
on two of the brake drums, and an air leak in a brake chamber. Tr. 64-65.

[5] An inherent
element of the standard at issue is that the machinery be effectively blocked
against motion. To hold otherwise would run contrary to the plain meaning and
purpose of the standard, which is to prevent motion while repairs are
conducted. Cf. Western Fuels-Utah, Inc. , 19 FMSHRC 994, 998-99
(June 1997) (holding that a statute that requires conveyor belts to be
“equipped” with slippage and sequence switches plainly requires that the
switches be functional).

[6] While there may
be some question as to whether the Judge properly considered the condition of
the truck in his negligence analysis, we need not address that issue. On
appeal, Kentucky Fuel has not challenged (or indeed mentioned) the Judge’s
finding regarding the truck’s condition and its effect on the negligence
determination. Regardless, the issue is not determinative.

[7] Commissioner
Cohen agrees with Commissioner Young’s concurring opinion that in analyzing the
foreseeability of the accident, the Judge considered the condition of the truck’s
braking system. Commissioner Cohen further agrees with Commissioner Young’s
conclusion that the very poor condition of the brakes made it more likely that
the truck would move because the brakes were incapable of holding it. Hence,
Commissioner Cohen agrees that the inadequate maintenance of the truck’s brakes
was relevant to the citation issued for failing to block the truck against
motion, and to the degree of Kentucky Fuel’s negligence in this matter. Nevertheless,
Commissioner Cohen joins the majority opinion because Kentucky Fuel’s failure
to provide adequate materials to block the truck against motion in the form of
wheel chocks is sufficient, by itself, to establish high negligence.

[8]
The Judge explicitly did not find that crib blocks are always inadequate
to block a truck against motion. 38 FMSHRC at 2921. Neither do we. As Inspector
Robinson and the Judge acknowledged, properly configured crib blocks may be
sufficient to satisfy the requirements of the standard in some situations. Id. ;
Tr. 46. We affirm the Judge’s finding that wooden crib blocks were insufficient
in this instance , given the type of truck at issue and the inspector’s
persuasive testimony.

[9]
Acting Chairman Althen observes that in this case the Judge was persuaded by
the inspector’s testimony that “wheel chocks are on nearly every mine site he
visits,” 38 FMSHRC at 2922 (quoting Tr. 49), and Kentucky Fuel did not argue in
its PDR that a reasonable operator would not have known that wheel chocks were necessary
to block the autocar grease truck against motion. Therefore, we do not deal
with an argument that supplying chocks for blocking movement of this type of
truck was not an action that 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. One may imagine a case in
which an operator would argue that it reasonably did not and reasonably should
not have known that certain material or equipment was necessary. Such circumstances
would raise different negligence and/or fair notice issues. Cf., e.g. , Hecla
Ltd. , 38 FMSHRC 2117, 2126 (Aug. 2016) (holding that an operator’s failure
to perform a geomechanical analysis was not a violation where a reasonably
prudent operator would not have known that such an analysis was required).

[10]
Kentucky Fuel suggests that direct evidence such as training records was
required. However, the Commission has held that the substantial evidence
standard “may be met by reasonable inferences drawn from indirect evidence.” Mid-Continent
Res., Inc. , 6 FMSHRC 1132, 1138 (May 1984); see also Black Beauty Coal
Co. , 703 F.3d 553, 560-62 (D.C. Cir. 2012) (finding inadequate training
based solely on indirect evidence). Inferences are “permissible provided they
are inherently reasonable and there is a logical and rational connection
between the evidentiary facts and the ultimate fact inferred.” Mid-Continent
Res. , 6 FMSHRC at 1138.

[11]
The evidence regarding supervision was essentially limited to an observation
that the foreman was not present when the accident occurred, which the Judge found
to be an inadequate defense. Regarding discipline, although Kentucky Fuel’s
Post-Hearing Brief claimed that the mechanic was admonished, there was no
actual evidence of this in the record. 38 FMSHRC at 2923.

[12]
In this regard, I generally agree with Acting Chairman Althen’s observations in
footnote 9, supra , concerning the availability of wheel chocks and the
operator’s neglect in failing to provide them. I further note that Inspector
Robinson testified that crib blocks might be adequate in some circumstances
(Tr. 45-46), but would have been insufficient here due to the size and weight
of the truck (Tr. 31-32). The suitability of available materials that may be
used to block trucks against motion during maintenance should be evaluated on a
case-by-case basis, and that was properly done here by the inspector and the
Judge.