Secretary of Labor v. The Kraemer Company, LLC

Plain-English summary

The Kraemer Company operated a limestone quarry where miners used loaders and parked personal vehicles near a 40-foot highwall. MSHA cited the company under 30 C.F.R. § 56.3200 for allowing travel near cracked, loose, and unsupported ground without a barrier or warning. The Judge credited the inspector's observations, including tire tracks as close as 1.5 feet from the highwall, and found that falling material was reasonably likely to cause a serious or fatal injury. He affirmed the significant and substantial designation and found moderate negligence because the condition was obvious and extensive despite Kraemer's earlier scaling and examination efforts. Citation No. 8944483 was affirmed, and Kraemer was ordered to pay the proposed $330 penalty.

Decision snapshot

• Cited standard: 30 C.F.R. § 56.3200
• Outcome: Citation No. 8944483 was affirmed as S&S with moderate negligence, and a $330 penalty was assessed.
• Key point: An operator must take down or support hazardous highwall conditions, or keep miners out with warnings and barriers, before permitting travel in the area.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

March ­­29, 2018

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner,

v.

THE KRAEMER COMPANY LLC,

Respondent.

:     CIVIL PENALTY PROCEEDING

:

:     Docket No. LAKE 2017-222-M

:     A.C. No. 47-01724-433690

:

:

:     Mine: Plant #2

:

DECISION

Appearances:   Dan Venier, Conference and
Litigation Representative, and Jason Patterson, Esq., Office of the Solicitor, U.S.
Department of Labor, Chicago, Illinois, for Petitioner;

Tristan Gardner, The Kraemer
Company LLC, Plain, Wisconsin, for Respondent.

Before:                       Judge Paez

This Simplified Proceedings docket is
before me upon the Petition for the
Assessment of Civil Penalty filed by the Secretary of Labor pursuant to section
105 of the Federal Mine Safety and Health Act of 1977 (“Mine Act”),
30 U.S.C. § 815. [1] In dispute is
one section 104(a) citation issued to The Kraemer Company LLC (“Kraemer” or
“Respondent”). [2] To prevail,
the Secretary must prove any cited violation “by a preponderance of the
credible evidence.” In re: Contests of Respirable Dust Sample Alteration
Citations , 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek
Pocahontas Co. , 11 FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom. ,
Sec’y of Labor v. Keystone Coal Mining Corp. , 151 F.3d 1096, 1106–07 (D.C.
Cir. 1998). This burden of proof requires the Secretary to demonstrate that
“the existence of a fact is more probable than its nonexistence.” RAG
Cumberland Res. Corp. , 22 FMSHRC 1066, 1070 (Sept. 2000) (citations and
internal quotation marks omitted), aff’d , 272 F.3d 590 (D.C. Cir. 2001).

I.
 STATEMENT OF THE CASE

On November 15,
2016, the Secretary issued Citation No. 8944483 alleging Kraemer violated 30 C.F.R.
§ 56.3200 by failing to take down or support hazardous ground conditions. The
Secretary proposed a penalty of $330.00, which Kraemer timely contested. Chief
Administrative Law Judge Robert J. Lesnick assigned me this matter on July 12,
2017. Upon proper notice to the parties, I held a hearing on January 30, 2018,
in La Crosse, Wisconsin.

At the hearing, the parties
stipulated to the following items verbatim in a joint exhibit:

1. The
   Kraemer Company LLC is engaged in mining operations in the United States, and
   its mining operations affect interstate commerce.

2. The
   Kraemer Company LLC is the operator of the mine, MSHA I.D. No. 47-01724.

3. The
   Kraemer Company LLC is an “operator” as defined in Section 3(d) of the Federal
   Mine Safety and Health Act of 1977, as amended (Mine Act), 30 U.S.C. 803(d).

4. The
   Kraemer Company LLC is subject to the jurisdiction of the Federal Mine Safety
   and Health Act of 1977, 30 U.S.C. § 801 et seq.

5. The
   Administrative Law Judge has jurisdiction in this matter.

6. The
   subject citations and orders were properly served by a duly authorized
   representative of the Secretary upon an agent of The Kraemer Company LLC on the
   dates and places stated therein, and may be admitted into evidence for the
   purpose of establishing their issuance.

7. The
   exhibits to be offered by The Kraemer Company LLC and the Secretary are
   stipulated to be authentic but no stipulation is made as to their relevance or
   the truth of the matters asserted therein.

8. The
   assessed penalties, if affirmed, will not impair The Kraemer Company LLC’s
   ability to remain in business.

9. Mine
   Safety and Health Administration (MSHA) Inspector Peter P. Ackley was acting in
   his official capacity and as authorized representatives [sic] of the Secretary
   of Labor when aforesaid citations and orders were issued.

10. On November 15, 2016, MSHA
    Inspector Peter P. Ackley issued Citation Number 8944483 for a violation of 30
    C.F.R. § 56.3200, which requires:

Ground conditions
that create a hazard to persons shall be taken down or supported before other
work or travel is permitted in the affected area. Until corrective work is
completed, the area shall be posted with a warning against entry and, when left
unattended, a barrier shall be installed to impede unauthorized entry.

(Joint Ex. 1; Tr. 9:1–4.) The Secretary presented testimony
from MSHA Inspector Peter Ackley. Kraemer presented testimony from Safety and
Human Resources Manager Tristan Gardner. The parties made closing arguments at
the hearing in lieu of submitting post-hearing briefs.

II.  ISSUES

For Citation No. 8944483, the
Secretary asserts that Kraemer violated 30 C.F.R. § 56.3200 [3]
by failing to take down or support hazardous ground conditions as required by
the standard. (Tr. 10:6–25; Ex. S–1.) The Secretary asserts that the violation
should be upheld as significant and substantial (“S&S”), [4]
inasmuch as it was reasonably likely to result in a fatality, and resulted from
the operator’s moderate negligence. (Tr. 11:14–23.) Kraemer contests the fact
of the violation and challenges the Secretary’s negligence determination on the
grounds that there are mitigating factors. (Tr. 12:9–16, 73:6–13.)

Accordingly, the following
issues are before me: (1) whether Kraemer violated 30 C.F.R. § 56.3200 as
alleged in Citation No. 8944483; (2) if so, whether the violation was S&S
and reasonably likely to lead to a fatal injury; (3) whether Kraemer’s negligence
in committing the violation was “moderate;” and (4) whether the Secretary’s proposed
penalty against Kraemer is appropriate under section 110(i) of the Mine Act.

For the reasons set forth below, Citation No. 8944483
is AFFIRMED as written.

III.  FINDINGS OF
FACT

A.        Operations at Kraemer’s Plant #2

Kraemer has been operating the stone quarry at
Plant #2 for over 20 years in Sauk County, Wisconsin. (Tr. 51:9–19.) The quarry
is a large open pit, with a main road that enters the mine site near the top of
the 40-foot highwall at issue, on a very large bench up to 1,000 feet wide. (Tr.
52:8–23, 53:12–54:15; Ex. S–6.) The quarry access road slopes down towards the opposite
side of the pit where the miners work at a mobile plant that began operation
around September 2016, near a second highwall not presently at issue. (Tr. 52:8–23,
54:9–12; Ex. S–6.) The mine’s operations involve quarrying and crushing limestone
to smaller sizes for use in highway construction and other construction work. (Tr.
22:12–18, 51:12–19, 54:21–25.) Although the quarrying and crushing take place
on the pit floor, Kraemer occasionally stores finish material on the wide bench
at the top of the 40-foot highwall at issue. ( Id .) Workers at the mine
site routinely use heavy machinery, including multiple types of loaders. (Tr.
32:1–4; Ex. S–7.) Although all of the quarrying and crushing operations were occurring
elsewhere at the time of the inspection, miners habitually parked their
personal vehicles about 20 feet from the highwall at issue. (Tr. 24:12–14, 32:15–25,
56:4–20; Ex. S–6.)

B.        Inspection on November 15, 2016

On November 15, 2016, MSHA Inspector Peter
Ackley began a routine inspection of Plant #2, accompanied by a Kraemer foreman,
Dan Mick. [5] (Tr. 15:4–15;
Ex. S–1.) Ackley noticed and photographed conditions on the 40-foot highwall
that he believed to be hazardous. (Tr. 23:19–32; Exs. S–2, S–3, S–4, S–5, S–6.)
Ackley photographed a pile of material, approximately three feet by five feet, and
a boulder, approximately one foot in diameter, located at the base of the
highwall. (Tr. 20:2–8, Exs. S–2, S–4.) Ackley believed the material had fallen
from the highwall. (Tr. 18:22–24, 21:19–25, 23:24–24:1, 35:6–12.) Ackley also observed
tire tracks indicating vehicles had traveled within two feet of the highwall’s base.
(Tr. 32:15–25.) Consequently, Ackley issued Citation No. 8944483, which alleged:

Hazardous ground conditions were not taken down or supported before
travel was permitted by the base of the north highwall located by the boulder
pile. There was approximately 100 foot of highwall with no barrier to impede
access to the base of the highwall. The highwall was about 40 feet high and
composed of loose unconsolidated material. There were sections of rock cracked
and gaped, both horizontally and vertically at the section of the highwall
above where the loader has been traveling. This condition exposed the miners to
fatal impact or crushing injuries from falling rock. Loader had traveled the
[sic] next to the base under the loose material. Front end loader tracks were
observed running parallel to the high wall for about 60 feet and as close
as 1.5 feet to the toe. [6]

(Ex. S–1 at 1; Ex. R–2 at 2.)

Ackley designated the citation as S&S and reasonably
likely to lead to a fatal injury, and he characterized the violation as the
result of moderate negligence. (Tr. 64:4–15; Ex. S–1.) Ackley based his gravity
determination partially on the fact that the cited standard was one of MSHA’s
“rules to live by” due to the number of fatal incidents MSHA had reviewed in
the past five years at different mines. (Tr. 33:2–10; Exs. S–10, S–11, S–12,
S–13, S–14, S–15.) To abate the citation, Ackley had Kraemer install a berm 20
feet away from the base of the highwall to act as a barrier while Ackley
completed his inspection of the mine. (Ex. S–1.) Kraemer had no history of
documented falls or failures from the cited highwall, and prior to the
citation, in September 2016, Kraemer conducted scaling to remove loose material
from the highwall. (Tr. 58:21–60:5.)

IV.  PRINCIPLES OF
LAW

A.        Elements for S&S Violation

A violation is S&S “if, based
on the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co. , 3 FMSHRC
822, 825 (Apr. 1981). To establish a S&S violation, the Secretary must
prove: “(1) the underlying violation of a mandatory safety standard; (2) a
discrete safety hazard—that is, a measure of danger to safety—contributed to by
the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.” Mathies Coal Co. , 6
FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); see also Buck Creek Coal, Inc.
v. Fed. Mine Safety & Health Admin. , 52 F.3d 133, 135–36 (7th Cir.
1995) (affirming ALJ’s application of the Mathies criteria); Austin
Power, Inc. v. Sec’y of Labor , 861 F.2d 99, 104 (5th Cir. 1988) (approving
the Mathies criteria).

The Commission has recently
explained that in analyzing the second Mathies element, Commission
Judges must determine “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.” Newtown Energy,
Inc. , 38 FMSHRC 2033, 2038 (Aug. 2016). In evaluating the third Mathies
element, the Commission assumes the hazard identified in the second Mathies
element has been realized and determines whether that hazard is reasonably
likely to cause injury. Id. at 2045 (citing Knox Creek Coal Corp. v.
Sec’y of Labor , 811 F.3d 148, 161–62 (4th Cir. 2016); Peabody Midwest
Mining, LLC , 762 F.3d 611, 616 (7th Cir. 2014); Buck Creek Coal , 52
F.3d at 135). Finally, the Commission has specified that evaluation of the
reasonable likelihood of injury should be made assuming continued normal mining
operations. U.S. Steel Mining Co. , 7 FMSHRC 1125, 1130 (Aug. 1985)
(quoting U.S. Steel Mining Co. , 6 FMSHRC 1573, 1574 (July 1984)).

B.        Negligence

The Commission evaluates the degree
of negligence using “a traditional negligence analysis.” The American Coal
Co. , 39 FMSHRC 8, 14 (Jan. 2017) (quoting Mach Mining, LLC v. Sec’y of
Labor , 809 F.3d 1259, 1264 (D.C. Cir. 2016) (citation omitted)). Because
the Commission is not bound by the Secretary’s regulations addressing the
proposal of civil penalties set forth in 30 C.F.R. part 100, the
Commission and its Judges are not required to consider the negligence
definitions in 30 C.F.R. § 100.3(d). Id. (citing Mach Mining, LLC ,
809 F.3d at 1263–64). Under a traditional negligence analysis, an operator is
negligent if it fails to meet the requisite standard of care. Brody Mining,
LLC , 37 FMSHRC 1687, 1702 (Aug. 2015). In determining whether an operator
met its duty of care, 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
regulation. Id. at 1702 (citation omitted). In making a negligence
determination, a Commission Judge is not limited to an evaluation of allegedly
“mitigating” circumstances, but may consider the totality of the circumstances
holistically. Id.

V.  ADDITIONAL
FINDINGS OF FACT, ANALYSIS, AND

CONCLUSIONS OF LAW

A.        Citation No. 8944483: Hazardous Ground
Conditions

Kraemer denies that it violated section
56.3200 and challenges the Secretary’s gravity and negligence determinations. (Tr.
12:9–16, 73:6–13.) Kraemer contends that the level of negligence was mitigated
through their past proactive maintenance, repeated examinations of the
highwall’s condition, and commitment to maintaining a good safety record. (Tr.
58:14–60:13.)

1. Violation of Section 56.3200

To prove a violation of section
56.3200, the Secretary must demonstrate that Kraemer allowed hazardous ground
conditions to exist while miners traveled by its 40-foot highwall, with no
barrier or warning against entry to the area. Here, when Ackley issued Citation
No. 8944483, he observed a number of potentially hazardous conditions on the
highwall—no recent scaling of the highwall; cracked, gapping, and broken
material on the highwall; and material on the top ledge of the highwall that
could fall. (Tr. 17:1–21:25; Exs. S–2, S–3, S–4, S–5, S–6.) In addition, Ackley
took photographs of tire tracks running parallel to the highwall’s base for
approximately 60 feet and coming as close as 1.5 feet to the highwall. (Tr.
18:4–20:21; Exs. S–1, S–3, S–4, S–5.) Miners’ personal vehicles were also
parked approximately 20 feet from the highwall. (Tr. 42:23–43:11, 61:18–20; Ex.
S–6.) Kraemer does not dispute that there was no barrier or warning against
entry to the area cited near the highwall. Based on the facts above, I
therefore determine that Kraemer violated section 56.3200 by allowing hazardous
ground conditions to exist while miners traveled by the highwall with no
barrier or warning signs.

2.         S&S and Gravity

To establish the first element of
the Mathies test for an S&S violation, the Secretary must prove a
violation of a mandatory safety standard. My determination that Kraemer violated
section 56.3200 establishes the first element of an S&S violation.

Regarding the second Mathies element,
the Secretary must show that the violation created a reasonable likelihood the
hazard that section 56.3200 aims to prevent would occur. Section 56.3200
requires that operators take down or support hazardous ground conditions before
permitting work or travel in the area. 30 C.F.R. § 56.3200. The purpose of this
standard is to prevent the hazard of ground material striking miners or their
equipment, in this case from a highwall fall or failure. Here, the highwall had
loose and unsecured material present on the highwall which could have fallen
from the surface of the wall. [7] (Tr. 17:1–21:25.)
Ackley testified he was concerned that during “continued mining operations,
[miners] would be continually exposed to that area.” (Tr. 34:12–14.) Ackley
testified in detail about seven separate hazards that he observed on the
highwall. (Tr. 27:1–31:25; Exs. S–5, S–6.) Although Kraemer had conducted
scaling on the highwall in September 2016, no maintenance had been conducted
since to remove loose material during the seasonal rains or changes in
temperature between September and November 15. (Tr. 67:6–9.) I note that
Kraemer presented no witnesses with direct knowledge of the conditions in the
pit or highwall on the date of the inspection. I therefore credit Ackley’s
testimony based on his years of experience [8]
and his direct observations of the highwall at the time of the inspection. Based
on the facts above, I determine that the hazard of falling material was
reasonably likely to occur, thus satisfying the second element of Mathies .

Regarding the third Mathies
element, the Secretary must demonstrate a reasonable likelihood the hazard will
result in an injury. In analyzing the third element, I must assume the hazard
identified in the second Mathies element has been realized. Newtown
Energy, Inc. , 58 FMSHRC at 2045. With regard to this element, Kraemer
argues there was a lower likelihood of injury due to the fact that miners did
not park their personal vehicles within 20 feet of the highwall, and all work
was being done some distance away from the wall itself. (Tr. 42:12–20.) However,
the Secretary presented photographs demonstrating that two loaders passed within
1.5 feet of the wall at some point shortly before the inspection. (Tr.
18:4–20:21, 32:15–19; Exs. S–1, S–3, S–4, S–5.) Moreover, although Kraemer
parked vehicles 20 feet away from the highwall, there was no barrier to prevent
miners getting out of their vehicles after they parked from walking close to
the highwall. (Tr. 42:23–43:11, 61:18–20; Ex. S–6.) If loose material fell from
the highwall, a miner in the area might be struck by rock. Ackley photographed
material at the highwall’s base that he suggested had fallen from the highwall,
including an approximately one foot in diameter boulder. (Tr. 18:22–24, 20:2–8,
21:19–25, 23:24–24:1, 35:6–12, Exs. S–2, S–4.) Given the highwall’s condition
and the size of material that could have fallen, I conclude that the hazard of
falling material from the highwall could reasonably likely result in an injury,
thus satisfying the third Mathies element.

Finally, for the fourth Mathies
element, the Secretary must prove a reasonable likelihood that the resulting
injury will be of a reasonably serious nature. In this regard, Respondent
argues that there was no immediate risk of a catastrophic highwall failure
based on MSHA’s guidance on ground condition and Respondent’s examination. (Tr.
58:1–59:25; Exs. R–1, R–3 at 44.) Nevertheless, Ackley observed multiple
concerning indicators, such as broken and loose material, an unsecured boulder
one foot in diameter, and the presence of multiple cracks in the wall running
vertically and horizontally. (Tr. 17:1–18:25; Exs. S–1, S–3.) Should larger
pieces of rock or other material come loose from the 40-foot highwall, a severe
or fatal injury could result from the impact. Given these facts, I determine
that the injuries resulting from material falling from the highwall would be
reasonably serious, satisfying the fourth Mathies element.

Accordingly, the Secretary has
satisfied all four elements of the Mathies test. I therefore conclude
that Citation No. 8944483 was appropriately designated as S&S. For the same
reasons, I affirm the citation’s gravity designation as reasonably likely to
result in a fatal injury to one miner.

3. Negligence

The Secretary argues that Kraemer’s
actions constitute moderate negligence. (Tr. 33:14–21.) In support, the
Secretary asserts that Kraemer was aware of the conditions on the highwall and that
the violative condition was easily visible and had existed for weeks or months.
(Tr. 41:10–18.) In contrast, Kraemer argues that it diligently examined the
highwall for signs of hazards and did not believe the conditions to be
dangerous. (Tr. 58:1–59:25; Ex. R–1.) Further, Kraemer contends that their
scaling of the highwall in September 2016, before beginning operations nearby,
should be considered as proof of their commitment to ensuring safe conditions
while miners worked and traveled in the area. (Tr. 60:1–5.)

In evaluating the operator’s level
of negligence, I must consider the actions that a reasonably prudent operator
would have taken under the circumstances presented that are relevant to the
operator’s obligation to comply with a standard. See Brody Mining, LLC ,
37 FMSHRC at 1703. Respondent had no history of highwall falls or failures
within the quarry. (Tr. 39:2, 59:10–12; Ex. S–9.) Kraemer asserts that
it examined the highwall and that its examination on the day of the inspection
did not indicate that a hazard existed on the highwall. (Tr. 58:1–59:25; Ex. R–1.)
However, photographs of the wall demonstrate that there was unsupported
material and the presence of both horizontal and vertical cracks. (Exs. S–5,
S–6.) The conditions were obvious, as Ackley immediately noticed loose material
and gapping on the highwall. (Tr. 16:5–8, 17:8–15.) Further, the photographs
demonstrate that the condition was extensive. (Exs. S–5, S–6.) Respondent also
admitted that it had not removed loose material from the highwall for
approximately two months before the inspection, and it did not have equipment
on site to test the stability of the wall. (Tr. 31:23–24, 60:8–13.) Moreover,
Kraemer failed to call any witnesses, including its foreman Dan Mick, who could
testify to the conditions observed on the date of Ackley’s inspection. Thus, I
am left with the credible testimony of Inspector Ackley, his notes, and his
photographs. Lastly, the violation posed a high degree of danger because it was
reasonably likely to cause a serious or potentially fatal injury as discussed
above. See discussion, supra Part V.A.2.

After considering all of the
factors, including obviousness and extent of the violation, I conclude that the
violation was the result of the operator’s moderate negligence.

B.        Penalty

Under Section 110(i) of the Mine Act, I must
consider six criteria in assessing a civil penalty: (1) the operator’s history
of previous violations; (2) the appropriateness of the penalty relative to the
size of the operator’s business; (3) the operator’s negligence; (4) the
penalty’s effect on the operator’s ability to continue in business; (5) the
violation’s gravity; and (6) the demonstrated good faith of the operator in
attempting to achieve rapid compliance after notification of a violation. 30
U.S.C. § 820(i).

The Secretary has proposed that Kraemer pay a
penalty of $330.00 for Citation No. 8944483. Kraemer has stipulated that the
proposed penalty will not affect its ability to remain in business. (Joint Ex.
1.) I note that the operator did proactively remove loose material from the
highwall before moving its portable unit near the highwall. Additionally, Kraemer
had no history of violations that became final orders during the 15 months
prior to the inspection. Kraemer made a good faith effort in attempting to
achieve rapid compliance after the citation was issued and installed a berm to
prevent access to the base of the highwall before the inspector left the mine site.
The size of the Respondent’s business is relatively small, with the quarry
producing less than 10,000 hours in 2016. Nevertheless, I have upheld the
Secretary’s S&S, gravity, and negligence designations based on
consideration of all the evidence submitted at hearing.

Taking into account all of the
facts and circumstances set forth above, I hereby determine that the
Secretary’s proposed civil penalty of $330.00 is appropriate.

VI.   ORDER

In light of the foregoing, it is
hereby ORDERED that Citation No. 8944483 is AFFIRMED . Kraemer
Company LLC is ORDERED to PAY a civil penalty of $330.00 within
40 days of the date of this decision.

/s/
Alan G. Paez

Alan
G. Paez

Administrative
Law Judge

Distribution:

Dan L. Venier, Conference & Litigation Representative,
U.S. Department of Labor, MSHA, Federal Building, 515 West 1st Street, Room
333, Duluth, MN 55802-1302

Jason Patterson, Esq., U.S. Department of Labor, Office of
the Solicitor, 230 S. Dearborn Street, Room 844, Chicago, IL 60604

Tristan K. Gardner, Safety & Human Resources Manager,
The Kraemer Company LLC,

P.O. Box 235, Plain, WI 53577-0235

/kp

[1] In
this decision, the hearing transcript, the joint exhibit, the
Secretary’s exhibits, and Respondent’s exhibits are abbreviated as “Tr.,” “Joint Ex. #,” “Ex.
S–#,” and “Ex. R–#,” respectively.

[2] O n October 18,
2017, the Secretary filed a motion to approve partial settlement, which I
approved in an order issued October 26, 2017. Two of the three violations at
issue in this docket were resolved in the partial settlement with only Citation
No. 8944483 remaining to be heard.

[3]
Section 56.3200 provides: “Ground conditions that create a hazard to persons
shall be taken down or supported before other work or travel is permitted in
the affected area. Until corrective work is completed, the area shall be posted
with a warning against entry and, when left unattended, a barrier shall be
installed to impede unauthorized entry.” 30 C.F.R. § 56.3200.

[4] The
S&S terminology is taken from section 104(d)(1) of the Mine Act,
30 U.S.C. § 814(d)(1), 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.”

[5]
Mick did not testify at the hearing . However, Kraemer’s Safety
and Human Resources Manager, Tristan Gardner, testified to his general knowledge
of
Respondent’s inspection practices and records of the highwall’s condition. (Tr.
48:7–65:12.) Gardner
was not present during the inspection. (Tr. 49:13–15.)

[6] At the hearing,
Ackley explained that the tracks depicted in Exhibit S – 7 match a
Caterpillar loader and the tracks in Exhibit S – 8 match a
Komatsu loader, both of which were on-site at the time of his inspection. (Tr. 31:25–32:10;
see also Ex. S – 4 .) Kraemer did not dispute
Ackley’s explanation.

[7] This material is
distinguished from the conical pile of processed material Ackley observed at
the base of the highwall, which Gardner explained was material likely pushed
off from the stockpile located at the top of the highwall. (Tr. 54:21–55:4;
Exs. S–5, S–6.)

[8] Ackley has been
employed by MSHA for over eight years, received formal training at the mine
academy in Beckley, West Virginia, and inspects between thirty and forty mines yearly,
including limestone, sand and gravel, and silica plants. (Tr. 13:20–14:14.) Prior
to working with MSHA, he worked at a cement plant under MSHA’s jurisdiction for
fifteen years after serving for fifteen years as a heavy equipment operator in
the United States Navy. (Tr. 14:24–15:3.)