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

Plain-English summary

A tree fell from above a surface mine highwall onto a truck traveling below, killing one miner and seriously injuring another. MSHA alleged that Nally & Hamilton's on-shift examinations failed to identify, report, and correct the tree hazard, but the judge vacated the order because the land above the highwall was not an active working area. The Commission reversed, holding that an examination of an active haul road must use vantage points reasonably necessary to detect foreseeable hazards that could enter that working area from outside it. Because an inspection from the road could not reveal the trees' condition and proximity to the edge, the examination was inadequate. The case was remanded to decide the S&S and unwarrantable-failure designations and assess a penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 77.1713(a)
• Outcome: The vacatur was reversed, a violation was established, and the case was remanded for gravity, unwarrantable-failure, and penalty findings.
• Key point: An on-shift examination must be capable of finding foreseeable hazards to an active working area, even when the hazardous condition originates outside that area.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

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

WASHINGTON, DC
20004-1710

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH       

ADMINISTRATION
(MSHA)

v.

NALLY
& HAMILTON ENTERPRISES,

INC.

Docket
No. KENT 2022-0079

Docket
No. KENT 2022-0084

BEFORE:
Jordan, Chair; Baker and Marvit, Commissioners

DECISION

BY
THE COMMISSION:

These matters, arising under the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2024) (“Mine
Act”), concern a decision of an Administrative Law Judge to vacate an order issued
by the Secretary of Labor’s Mine Safety and Health Administration (“MSHA”) to
Nally & Hamilton Enterprises, Inc. (“Nally & Hamilton”) for an alleged failure
to comply with a mandatory on-shift examination requirement. The order was
issued following an accident at a surface coal mine in which a tree fell from
the edge of a highwall and crushed a truck traveling below. One miner was killed,
and a second miner was seriously injured.

The order cites the mandatory safety
standard at 30 C.F.R. § 77.1713(a), which states that “[a]t least once during
each working shift . . . each active working area [of a surface coal mine] . .
. shall be examined by a certified person . . . for hazardous conditions and
any hazardous conditions noted during such examinations shall be reported to
the operator and shall be corrected by the operator.” After a hearing on the
merits, the Judge found that the operator did not violate the safety standard. The
Judge concluded that the area above the highwall where the trees were located
was not an active working area at the time of the accident. Thus, the operator
had no duty to examine the trees from the top of the highwall. He concluded
that an examination conducted solely from the vantage point of the main mine
road complied with the requirement of § 77.1713(a). Furthermore, because an
examiner could only be required to report hazards that could be observed from
the main mine road, and because the danger the trees created could not be perceived
from the main mine road, the Judge held the failure to report that hazard did
not constitute a violation of the inspection requirement in § 77.1713. 46
FMSHRC 209, 231 (Apr. 2024) (ALJ). Accordingly, the Judge vacated the order.

The
Secretary filed a petition for review, which the Commission granted. For the
reasons which follow, we reverse the Judge and conclude that an adequate
examination under

§
77.1713(a) must be capable of detecting conditions that could pose a danger to
miners in the active working areas. In other words, at this mine, an adequate
on shift examination had to be capable of assessing whether or not the stand of
trees located on top of the highwall created a danger to miners traveling on
the main haul road below.

I.

Factual and
Procedural Background

The accident occurred on January 11, 2022,
at Nally & Hamilton’s Colmar Surface Mine in Bell County, Kentucky. Two
miners were traveling in a truck carrying blasting materials on the mine’s main
haul road when a tree fell from the highwall and crushed the truck, killing one
miner and seriously injuring the other. The tree on top of the highwall was
approximately 67 feet tall. The highwall itself was adjacent to the haul road and
was approximately 50 feet tall. 46 FMSHRC at 210-14. The fallen tree had been
one of a small group of trees left standing between the edge of the highwall
and an access road farther back from the edge. At the bottom of the highwall,
material intended for reclamation formed an approximately 53-foot-wide berm
between the base of the wall and the main haul road. The access road atop the
highwall was no longer used regularly, and pit mining in the area below had
concluded a few months prior to the accident. However, the main haul road was
still traveled daily. Id.  

A
provision of the mine’s approved ground control plan requires that “[u]nless a
drop bench is provided, trees and other vegetation will need to be removed a
safe distance from the top of the highwall.” Ex. S-7 at 5. The operator was
aware of the plan’s requirements. Tr. I:193-94. Witnesses agreed that the tree
stand was “close” or “fairly close” to the edge of the highwall. Ex. S-10; Tr.
I:59 (dozer operator John Brown testified that he could see from the road that
the trees were “close” to the edge); Tr. II:38-39 (Dayne Willis, consulting
engineer agreed that the trees were “fairly close” to the edge); Tr. I:87 (MSHA
inspector Silas Brock testified that the tree was “right on the edge”); Tr. I:191
(Foreman Jody Brock testified that the tree was “back five or six feet”). Foreman
Brock, the mine’s regular MSHA inspector David Faulkner, and the injured miner,
Joshua Pendleton, testified that the stand of trees did not attract notice or
raise concerns prior to the incident. Tr. I:37-38, 191, 213-19; II:78.

On-shift examination reports for the 11 days
leading up to the accident marked the highwall as “stable.” Ex. S-6. Foreman
Brock explained that he would glance up at the highwall from the road as part
of his regular on-shift examination of the area to check for loose rocks or
material leaning over the wall but conceded that he paid more attention to
active working areas.

As
a result of the accident, MSHA issued Order No. 9138189, alleging a failure to
“identify, report, and correct the trees that created hazardous highwall
conditions” in on-shift examinations conducted between January 1-11, 2022. Ex.
S-2. The violation was designated as significant and substantial, attributable
to high negligence, and the result of an unwarrantable failure to comply with a
mandatory standard. [1]
Id. After the hearing, the Judge vacated the order, concluding that
“[t]here was no duty to include the area above the highwall in the operator’s
daily on-shift examinations, and there is no credible record evidence showing
that the danger here could or should have been perceived from the main mine
road where miners regularly travel[ed].” 46 FMSHRC at 230.

II.

Disposition

Section
77.1713(a) governs the on-shift examination requirement for surface coal mines
and requires that a certified person examine “each active working area” for
hazardous conditions at least once during each working shift, and that any such
hazardous conditions be reported and corrected. 30 C.F.R. § 77.1713(a). [2]

In confining the on-shift
examination requirement to active working areas, the Judge applied a narrow and
literal reading of the regulation. In this case, that approach winds up undermining
the very purpose of the standard.

Common sense dictates that the purpose of
the standard in question is to identify and correct hazardous conditions that
might harm miners in the active working areas. In most cases this goal is
accomplished by conducting an examination focused on potential hazards located
in those active working areas. However, sometimes miners cannot be assured of a safe
work environment unless the on-shift examination is expanded to include a
location that is outside the active working areas. Such is the situation in the
case at hand.

At this mine, at the top of a highwall
with no drop bench, there was a particular stand of trees that created a
potential hazard for miners traveling on the main haul road below. The operator
was aware of this potential danger, as its ground control plan specifically required
that “trees and other vegetation will need to be removed a safe distance from
the top of the highwall” unless a drop bench was provided. Ex. S-7 at 5; Tr. I
: 193-94. Whether the trees were a safe distance from the top of the highwall
could not be determined by an examination that was conducted solely from the
vantage point of the active working areas below. Such examination did not
include the top of the highwall, where the trees were located. Though there was
an access road at the top of the highwall behind the trees, the location was
not considered an active working area since miners did not work or travel there.
Although the trees were not located in an active working area, there was a
known danger that they could fall into the active working area, thereby posing
a direct threat to miners in the active working areas. This would include the
miners who traveled on the main haulage road adjacent to the bottom of the
highwall.

Foreman Brock explained that he conducted
his examination by glancing up at the highwall from the road below to check for
loose rocks or material leaning over the wall. Tr. I:189-90; Tr. II:66. Conducting
the examination this way is problematic because as the Judge concluded,
“evidence presented at the hearing establishes a reasonably prudent miner could
have not perceived the danger of the trees on the highwall from the vantage
point of the mine road.” 46 FMSHRC at 230.  

Whether and to what extent the trees posed
a danger could only be determined by an examination conducted from a vantage
point that allowed one to assess the condition of the trees and their proximity
to the edge of the highwall. Moreover, the record reveals that the potential
hazard posed by the trees was not a static situation. Rain and snow fell in the
subject area in the weeks leading up to the accident. Ex. 5-6. Witnesses
consistently testified to the destabilizing effect that such freeze/thaw cycles
can have on the integrity of the ground on and around highwalls: soil expands
and contracts as it freezes and thaws, which can create fissures, separate soil
from tree roots, and lead to mud slides. Tr. I:68-69, 182-84, 223; Tr.
II:43-44. The foreman conceded that highwalls are more susceptible to damage in
poor weather conditions and that he conducts a closer examination during the
winter months. Tr. I:183-84. Nevertheless, the Judge held that “the area above
the highwall where the trees were located is not an active working area under section
77.1713(a), and Respondent had no duty to examine the trees from the top of the
highwall.” 46 FMSHRC at 229.

The Judge explained that he reached his
decision “under the logic of Black Castle .” Id . at 229 (citing
Black Castle Mining Co ., 36 FMSHRC 323 (Feb. 2014)). We find Black
Castle to be inapposite to the case at hand. Unlike the instant case, Black
Castle ’s holding, restricting the examination to active work areas, did not
leave the miners in the active work area exposed to a potential hazard arising
from outside the active work area.

In Black Castle , a bulldozer ran
over and ruptured a buried unmarked gas line, fatally injuring the driver. MSHA
issued the operator a citation alleging that the unmarked gas line was a
hazardous condition which should have been reported and corrected as part of
the on-shift examination. The Commission affirmed the Judge’s decision to
vacate the citation, finding that the record supported the Judge’s conclusion
that the accident site was not an assigned work area and the operator had no
reason to anticipate that any miner would be in the proximity of the gas line. The Commission
found the operator had “no reason to anticipate” that miners would be in the
area where the accident occurred; therefore, it was not a working area and
examiners were not required to note whether that portion of the gas line was
adequately marked. 36 FMSHRC at 325-26. The Commission further held that if the
miner had not unforeseeably gone to this non-working area, the gas line would
have posed no risk to miners in the active working area. Id . at 326. Therefore, there
was no corresponding obligation to perform an on-shift examination of the site
for hazardous conditions.

We consider our decision in Sunbelt
Rentals, Inc. to be a more relevant precedent for the case at hand. 38
FMSHRC 1619 (Jul 2016). [3] In Sunbelt ,
a cement plant contracted with a company to perform annual maintenance of its
pre-heat tower. The maintenance company in turn contracted with another company
to erect scaffolding within the pre-heat tower. While an employee of the
scaffolding company was working in the tower, material fell from above, struck
him, and knocked him unconscious. During the accident investigation, an MSHA
inspector climbed an exterior staircase on the tower, looked through a door and
observed a build-up of material on the tower walls directly above the area
where the miner had been working. The on-shift examiner had not availed himself
of this perspective and thus did not identify the hazardous condition during
the examination.

The MSHA inspector issued citations
alleging failures to perform adequate on-shift examinations. The Commission held
that an examination “must be adequate in the sense that it identifies
conditions which may adversely affect safety and health that a reasonably
prudent competent examiner would recognize.” Id . at 1627. In a subsequent
decision after remand, the Commission held that when performing an on-shift
examination an examiner must use the vantage points that are “reasonably
necessary” to check the working area for hazards to miners—including, where
relevant, the hazard of objects falling from above. Sunbelt Rentals Inc. ,
42 FMSHRC 16, 24 (Jan. 2020) (separate opinion of Commissioners Young and
Althen, joined by Commissioner Jordan). An examination of a working area is
inadequate if it does not allow for the evaluation of all the potential hazards
to which miners in the active work areas might reasonably be expected to be
exposed.

As demonstrated by the circumstances of
the accident, conditions atop a highwall can create dangers for the miners working
or traveling on the haul road below. There is no dispute that the haul road is
an active work area that is regularly traveled. Tr. I:28. An adequate on-shift
examination of the haul road therefore must include an evaluation of potential
fall hazards from all vantage points reasonably necessary for the
discovery and correction of those hazards. See Sunbelt , 42 FMSHRC at 24.
Had that been done here, the operator would have identified and corrected the 67-foot-tall
tree located close to the edge of the highwall.  

Jody Brock, the mine foreman that conducted
the examination, conceded that he was tasked with removing trees that were too
close to the edge of the highwall. Tr. I:174. Furthermore, the witnesses agreed
that the subject stand of trees was either fairly close to the edge or at most
six feet away from the edge. See Ex. S-10; Tr. I:59; Tr. I:191; Tr.
II:38-39, 68.

Foreman Brock acknowledged that
freeze/thaw cycles were to be expected in January, and that he would look
“closer” at the highwall during freezing and thawing conditions because
material is more likely to fall. Tr. I:182-84. Indeed, such freeze/thaw cycles
had in fact occurred in the days and weeks preceding the accident. A reasonably
prudent examiner would have recognized (and sought to evaluate) the increased
hazard of material falling from the highwall onto miners in the working area
during the winter months.

Finally, as in Sunbelt , the
examiner’s vantage point here was insufficient to check for all hazards
imperiling the working area. 42 FMSHRC at 24. Foreman Brock conducted his
examination by observing the trees on the highwall from the haul road below. The
mine foreman conducted daily on-shift examinations of the area where the
accident occurred, which included glancing up at the highwall from the haul
road to check for loose rocks or vegetation leaning over the wall. Tr.
I:189-90; Tr. II:66. The Judge found that using this vantage point “a reasonably
prudent miner could have not perceived the danger of the trees on the highwall.” [4]
46 FMSHRC at 230; Tr. I:189-93. The examination reports did not identify the
hazardous conditions in the days leading up to the accident. Ex. S-6. However, for
the examination to be sufficient, the examination should have been conducted
from a vantage point capable of discovering this foreseeable hazard.

It is axiomatic that when interpreting
regulations, we take into account common sense, the purposes of statutes and
regulations, and the practical consequences of those interpretations. See
Condon v. Bowen , 853 F.2d 66, 72 (2nd Cir. 1988) (citations omitted); see
also Central Sand & Gravel Co. , 23 FMSHRC 250 (Mar. 2001) (holding that
a regulation must be read in accordance with the protective purposes of the
applicable safety standards and the Mine Act—to protect miners from hazards). [5]
We find guidance in the Commission’s previous holdings and determine that the
Judge engaged in an improperly narrow reading of the regulation, which would
lead to an absurd result.  

III.

Conclusion

For the reasons above, we find that a
violation of 30 C.F.R. § 77.1713(a) has been established. Accordingly, the
Judge’s decision vacating Order No. 9138189 is reversed. We remand for the
determination of whether the violation was significant and substantial and
caused by an unwarrantable failure to comply with the standard, and for the
assessment of a civil penalty after application of the factors set forth in
section 110(i) of the Mine Act, 30 U.S.C. § 820(i).

/s/
Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/
Moshe Z. Marvit

Moshe Z. Marvit,
Commissioner

Distribution:

Joseph
H. Mattingly, III, Esq.

Joseph
H. Mattingly III PLLC

P.O.
Box 104

W.
Main St.

Lebanon,
Kentucky 40033

[email protected]

S.
Thomas Hamilton, Esq.

Saltsman,
Willett, Deaton & Hamilton, P.S.C.

212
E. Stephen Foster Avenue

Bardstown,
Kentucky 40004

[email protected]

Jennifer
A. Ledig

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

200
Constitution Avenue NW, Suite N4428  

Washington,
DC 20210

[email protected]

Thomas
A. Paige, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Division
of Mine Safety and Health

200
Constitution Avenue NW, Suite N4428 

Washington,
DC 20210

[email protected]

Melanie
Garris

US
Department of Labor/MSHA

Office
of Assessments, Room N3454

200
Constitution Ave NW

Washington,
DC 20210

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Office
of the Chief Administrative Law Judge

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

Administrative
Law Judge Michael Young

Office
of the Chief Administrative Law Judge

Federal
Mine Safety & Health Review Commission

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

[1] The “significant
and substantial” and “unwarrantable failure” terminology is taken from section
104(d)(1) of the Mine 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” and establishes more severe sanctions
for any violation caused by “an unwarrantable failure of [an] operator to
comply with . . . mandatory health or safety standards.” 30 U.S.C. § 814(d)(1).

[2] “Active working
area” is not defined in the statute or regulations. However, as the Judge noted,
the Secretary has previously suggested that “active working area” should be
equated with “active workings,” which is defined in 30 C.F.R. § 77.2(a) as “any
place in a coal mine where miners are normally required to work or travel” (46
FMSHRC at 229 n.14). It appears the Judge treated the phrases as analogous and
we will also do so for the purposes of this opinion.

[3] We recognize that
Sunbelt Rentals, Inc . concerned a metal/nonmetal examination standard
(30 C.F.R. §56.18002(a)) rather than the surface coal standard at issue here. However,
for the purpose of determining an operator’s duty regarding examining hazards
in active workings, we believe the precedent in Sunbelt Rentals is
applicable. Commission case law supports, indeed dictates, such a parallel
construction of coal and metal/non-metal regulations. The Commission has found
that “[t]here is no logical reason why . . . coal mines would be subject to a
regulation designed to be less protective . . . than the regulation governing
other mines, and it would make little sense for MSHA or its predecessor agency
to have intended such a result.” Wolf Run Mining Co. , 32 FMSHRC 1669,
1682 (Dec. 2010); see also Solar Sources, Inc. , 37 FMSHRC 218, 221 (Feb.
2015).

The legislative history of the Mine Act
further confirms this approach. A fundamental purpose of the Act was to provide
a standard for safety for metal/non-metal miners as comprehensive and
protective as the standards provided for coal miners. The Senate Report on the
Mine Act notes that the Coal Act was more comprehensive in scope and reach than
the Metal Act. It states that one reason why enactment of the Mine Act was an
absolute necessity was that there would be “one statute for both coal and
metal/nonmetal mines, affording equal protection for all miners and a common
regulatory program for all operators.” S. Rep. No. 95-181, at 9 (1977),
reprinted in S. Subcomm. on Labor, Comm. on Human Res., Legis. History of the
Fed. Mine Safety and Health Act of 1977, at 597 (1978). Consequently, it would
be illogical and at odds with the purpose of the Mine Act to construe coal
regulations in a manner achieving less protection for coal miners than the
protection afforded metal/nonmetal miners.

[4] There was an
access road near the stand of trees atop the highwall. 46 FMSHRC at 210-14. Though
we do not lay out any specific requirements for how the examiner should have
conducted the examinations, other than to ensure he could reasonably perceive
hazards to miners, we note that if the examiner could not view the hazard from
the haul road he could have examined it from the access road above .

[5] Central Sand &
Gravel Co. , 23 FMSHRC 250 (Mar. 2001), involved a citation issued by MSHA
to the operator for a failure to maintain adequate clearance under a
high-voltage powerline in violation of the safety standard at 30 C.F.R. §
56.12045 (“[o]verhead high-potential powerlines shall be installed as specified
by the National Electrical Code.”). A sand and gravel stockpile stood 10 feet
higher than powerlines and the west side was less than 2 feet from the lines. The
citation was issued following the electrocution of an eleven-year-old child who
reached out and touched a powerline while playing on the stockpile, after
working-hours.

The Commission Judge determined that the
operator violated the safety standard and the NEC, which required clearance of
8 vertical feet and 5-1/2 horizontal feet.

On review before the Commission, the
operator argued that the literal terms of the safety standard only requires
that the overhead power lines “be installed” in accordance with the NEC. The
Commission rejected this construction finding that it “would negate much of
[the safety standard’s] protective intent” and “would lead to the plainly
absurd result of permitting mining operations to take place without adherence
to many provisions in the [Code] intended to safeguard persons from the obvious
post-installation hazards of overhead high-potential powerlines.” 23 FMSHRC at
254.