River Hill Coal Company, Inc. v. Secretary of Labor and Secretary of Labor v. River Hill Coal Company, Inc.

Plain-English summary

River Hill idled two coal-processing buildings but kept them powered and allowed an electrician to enter monthly despite severely corroded beams, floors, stairs, columns, and walkways. Judge L. Zane Gill rejected the operator's fair-notice defense because the structural-maintenance standard clearly covered the visible hazards and prior MSHA conduct did not excuse compliance. He found both section 77.200 violations S&S, highly negligent, and caused by unwarrantable failure because falling debris and deteriorated travelways exposed the electrician to serious injury. The Judge also upheld the failure-to-abate order because a five-day period was enough to fully restrict access, yet the key to the locked buildings remained available to employees. The two violations were affirmed with total penalties of $4,000.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.200 and 77.1713(a)
• Outcome: Citation No. 8012325 and Order No. 8012326 were affirmed, the section 104(b) order was upheld, and $4,000 in penalties was assessed.
• Key point: Idling a deteriorated plant does not excuse structural hazards when miners still enter, and abatement requires actually preventing access rather than leaving keys available.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9900 / FAX: 202-434-9949

October 2, 2018

RIVER HILL COAL COMPANY, INC.,

Contestant,

v.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Respondent.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

RIVER HILL COAL COMPANY, INC.,

Respondent.

CONTEST PROCEEDING

Docket No. PENN 2014-0956-R

Order No. 8012327; 09/02/2014

River Hill Tipple

Mine ID 36-08683

CIVIL PENALTY PROCEEDING

Docket No. PENN 2015-0178

A.C. No. 36-08683-375386

Mine: River Hill Tipple

DECISION AND
ORDER

Appearances:   Ryan M. Kooi, Esq., U.S. Department of
Labor, Office of the Solicitor, Philadelphia, PA, for the Secretary of Labor;

Joseph A. Yuhas, Esq., Northern
Cambria, PA, for the Operator.

Before:                        Judge L. Zane Gill

These proceedings arose from a Petition for the
Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”) and a
Notice of Contest filed by the operator, River Hill Coal Company, Inc. (“River
Hill” or “Operator”) pursuant to section 105(d) of the Federal Mine Safety and
Health Act of 1977 (“Mine Act” or “Act”), 30 U.S.C. § 815(d). These cases
involve one section 104(d)(1) citation, one section 104(d)(1) order, and one
section 104(b) order.

The Secretary seeks civil penalties of $2,000.00 for
Citation No. 8012325 and $2,000.00 for Order No. 8012326, requesting that they
be affirmed as issued. River Hill argues that the court should vacate the
citations because it lacked fair notice of the violative nature of its conduct.
Failing that, the operator argues the citations are neither significant and
substantial (“S&S”) nor unwarrantable failures.

Additionally, River Hill argues the section 104(b)
order, Order No. 8012327, was improperly issued because the inspector did not
provide a reasonable time for abatement.

For the reasons listed below, I find that the
violations for which Citation No. 8012325 and Order No. 8012326 were issued are
S&S and constitute unwarrantable failures to comply with a mandatory
standard. I find that a total penalty of $4,000.00 is appropriate. Additionally,
I find that Order No. 8012327 was properly issued.

I. STIPULATED
FACTS

1. River Hill Coal Company, Inc. operated the River Hill Tipple (Mine No.
   36-08683) at the time that the violations in this matter were issued.

2. Respondent was an “operator” as defined in § 3(d) of the Act, 30 U.S.C. §
   802(d), at the Mine at which the citations in this matter was issued.

3. The operations of Respondent at the Mine at which the citations in these
   matters were issued are subject to the jurisdiction of the Act.

4. These proceedings are subject to the jurisdiction of the Federal Mine
   Safety and Health Review Commission, and its assigned Administrative Law
   Judges, pursuant to Sections 105 and 113 of the Act.

5. The citations in these matters were properly issued and served by a duly
   authorized representative of the Secretary of Labor upon an agent of Respondent
   at the date, time, and place stated therein as required by the Act.

6. True copies of the citations in these matters were served on Respondent
   and/or its agents as is required by the Act.

7. The violations contained in “Exhibit A” attached to the Secretary’s
   petitions in these matters are authentic copies of the subject violations, with
   all the appropriate modifications or abatements, if any.

8. Payment of the total proposed penalty in this matter will not affect
   Respondent’s ability to continue in business.

II. FACTUAL
BACKGROUND

On June 26, 2013, River Hill idled the Old Processing
Plant (“Old Plant”) and the New Old Processing Plant (referred to here as the “Wash
Plant”) [1]
at the River Hill Tipple, a coal preparation plant near Karthaus, Pennsylvania.
(Tr.209:20-22; 225:11-16; Ex. S–5)

In either late June or early July, Keith Thompson, a
contractor who supervised plant operations for the operator, consulted MSHA’s
Clearfield Office and explained River Hill’s intention to idle the plants. (Tr.209:20-210:12;
226:22-227:1) Over the phone, Thompson informed Inspector John McMurray that
while he intended to maintain electricity through both buildings, he no longer
planned to use or run the plants. (Tr.210:17-21) He agreed to restrict power to
the equipment and lighting and prevent access to both buildings. (Tr.211:4-13)

On August 7, 2014, McMurray [2] inspected
the plants, accompanied by Thompson and Elwood King, the mine’s electrician. (Tr.22:13-15;
46:12-14; 121:7-15) McMurray observed numerous structural hazards, (Tr.26:23-28:25;
50:1-7; 51:5-9), and decided to return with an expert to determine the extent
of structural deterioration before issuing citations. (Tr.51:12-52:19; 139:12-140:18)
McMurray received assurances from Thompson that the plants would remain locked
and restricted from access. (Tr.54:25-55:7; 140:7-10; 217:23-218:10)

On August 25, 2014, McMurray returned with Terrance
Taylor, an MSHA expert on structural engineering. [3] (Tr.156:6-20;
167:18-23; 170:8-11) Collectively, they observed the following:

A.         Old Plant Conditions

Numerous support beams within the Old Plant were corroded
or deteriorated. Corroded steel floor plates hung from an outdoor overhanging
structure. (Tr.198:8-24; Ex. S–17) McMurray testified that miners walked under
this overhanging structure. (Tr.42:20-43:7) Large delaminated metal sheets hung
from the walls. (Tr.29:20-22; 30:22-23; 42:16-19; 193:11-14; Exs. S–1, 5, 15) These
plates posed a danger to those standing below on the ground floor. (Tr.194:8-12;
Ex. S–15) The garage door, the garage door opener, and a fresh water pump were located
below these plates on the ground floor. (Tr.31:6-24; 33:12-34:2) McMurray testified
all three pieces of equipment required inspection or service, and that at least
two employees accessed the area. (Tr.31:14-24; 32:18-33:4; see Ex. S–5)

McMurray and Taylor were unable to access the upper
floors because the second floor walkway that led to the stairs was corroded. (Tr.35:4-15;
36:23-37:18; 194:24-195:8; 200:25-201:16; Exs. S–16, 18) This walkway had rust,
holes, lacked support, and bent under applied pressure. (Tr.37:12-38:10; Ex. S–16)
McMurray observed King cross this walkway. (Tr.38:1-16) The metal and the tread
of an outside stairwell were deteriorated. (Tr.44:6-17) A pipe obstructed the
bottom of the stairwell as a warning against access. (Tr.28:4-7) The pipe was
moveable and lacked any cautionary signs. [4]
(Tr.28:8-25; see Ex. S–5)

B.        Wash Plant Conditions

The Wash Plant’s main support columns were completely compromised
with rust. (Tr.87:10-14; Ex. S–7) The diagonal bracings for numerous columns were
corroded or detached. [5]
(Tr.50:17-18; 176:24-178:25; Ex. S–8) Two columns had corrosion holes within
their webbing. (Tr.174:14-176:2) Numerous horizontal support beams had
delamination damage, corrosion holes, and pitting. (Tr.180:1-181:10) One sagging
horizontal beam supported an elevated platform. (Tr.181:20-182:8; Ex. S–10) The
stairwell’s support posts were almost completely deteriorated from severe
corrosion and pitting. (Tr.97:5-13; 188:17-189:21; Exs. S–13, 20) The stairway’s
inclined channel stringers also had corrosion holes. (Tr.187:2-8; Ex. S–12) The
horizontal beam that supported the stair landing was weakened with corrosion
holes. (Tr.87:22-25; 97:2-13) The plant had flooring that was totally corroded
and bending down, causing a bow in the floor. (Tr.88:11-90:3; Ex. S–10) Three
or four support posts for a sump bin were severely deteriorated. (Tr.183:11-184:22;
Ex. S–11) There were severe corrosion notches in four of the vertical support
posts for the plant’s BC-1 conveyor belt. (Tr.190:12-191:24; Ex. S–14) Additionally,
the Belt BC-1 had a large corrosion hole in the webbing of the channel. (Tr.190:15-17)
At the time of the inspection, the Wash Plant lacked any barricade, lock, tape,
or cautionary warning sign to discourage entry. (Tr.47:11-19; see Ex. S–5)

On inspection, Taylor determined that both buildings
were not maintained in good repair. (Tr.171:12-13; 172:1-2; Ex. S–5) He
testified that a significant number of areas in each building were unsafe. (Tr.204:18-205:16)
In Taylor’s expert opinion, neither the Old Plant nor the Wash Plant was maintained
in good enough repair to prevent injuries and accidents to miners. (Tr.203:20-204:15)

C.        Plant Use and Employee Access

The plants were accessed and used in the eighteen
months before the issuance of the citation. King, Operator’s electrician,
conducted monthly electrical examinations of both plants. (Tr.46:18-25; 57:19-61:1;
76:15-20; 213:22-214:11; Ex. S–21) The routine records from these examinations
confirm King walked through the first floors and accessed the upper floors of
the Old and Wash Plants. [6]
(Tr.46:18-25; 149:18-150:1; 214:2-11; 239:13-23; Ex. S–21)

From May 24-27, 2014, the mine ran raw coal on conveyor
belts through both plants. (Tr.61:23-62:4; 67:12-68:18; 231:5-233:5; 237:10-18;
Ex. S–21, at 14) This activity does not necessitate employee presence within
the plants. (Tr.69:1-22; 121:19-25) However, conveyor belts usually spill coal
over the edges of the belts and produce coal dust that accumulates on all the
structures. (Tr.70:8-16) Every active working area and active surface
installation must be examined once each shift and cleaned of spilled coal and
coal dust. (Tr.69:9-14; 122:1-16; 30 C.F.R. § 77.1713(a)) Thompson alleges the
miners performed visual examinations by standing outside the plant and that
coal did not spill in either building. (Tr.234:11-235:2; 237:19-238:1) Had
maintenance been required, Thompson claims he would have shut down the plant
and performed inspections to ensure safe travel within the plants. (Tr.238:22-239:2)
The buildings must be hosed down from the top floor to the bottom floor to entirely
remove coal dust. (Tr.75:9-18) McMurray testified that it was obvious the Wash
Plant had been washed down because it was “remarkably clean” and without coal
dust three months later. [7]
(Tr.48:7-8; 70:17-71:3)

On August 28, 2014, McMurray issued Citation No.
8012325 and Order No. 8012326 to River Hill under 30 C.F.R. § 77.200 for a
failure to maintain two buildings in good repair to prevent accidents and
injuries to employees. (Tr.7:18-24; Exs. S–1, 2) At the time of the cited
violations, the plants had been idled for over a year. (Tr.109:22) McMurray did
not want to economically damage the operator by issuing numerous citations. (Tr.140:19-141:1)
After discussion with the MSHA field office supervisor the next morning,
McMurray issued a 104(d)(1) citation for the Old Plant and a 104(d)(1) order
for the Wash Plant. (Tr.19:3-10; Exs. S–1, 2) McMurray gave River Hill until
September 2, 2014—five days—to abate the violations. (Tr.107:3-8; Exs. S–1, 2) River
Hill made some suggestions and considered how to restrict access to the
buildings. (Tr.105:22-106:1)

On September 2, 2014, the abatement deadline, McMurray
returned and discovered that while the entrances to the plants were locked, the
key was readily accessible to the mine employees in the office. (Tr.107:11-17)  He
issued a 104(b) order for a failure to abate the conditions. [8] (Tr.106:19-22;
Ex. S–3)

On September 16, 2014, McMurray terminated the 104(b)
order when he observed that the buildings were completely barricaded, the power
within the buildings was disconnected, and River Hill submitted a plan to the
District Office to keep the Old Plant and the Wash Plant idle. (Ex. S–3 )

III. ANALYSIS
AND DISPOSITION

A.         PENN 2015-0178

1. Notice

River Hill seeks to avoid liability by arguing that it
lacked fair notice of the requirements of section 77.200. (Resp’t Br. 9) River
Hill argues MSHA’s conduct on numerous occasions affirmed River Hill’s
compliance with the regulation. Thompson testified that when he consulted
McMurray on the best practice to close both buildings, he indicated the intent
to maintain electricity within the buildings. (Tr.210:17-21) River Hill argues
that MSHA either approved of or failed to raise objections to the implied
monthly electrical examinations necessary to maintain electricity in both
buildings. (Resp’t Br. 10) It cites MSHA’s failure to issue citations during
two inspections and the three week delay in the issuance of the citations after
the third inspection as evidence of MSHA’s belief of River Hill’s compliance. ( Id. )
River Hill also highlights McMurray’s “NVO” notation in the inspector’s notes
as evidence that no violations were observed during the final inspection. ( Id. )
Finally, River Hill highlights an instance where McMurray told King “that’s
fine for you” while crossing a dangerous walkway. ( Id. , citing Tr.38:17-18)
McMurray indicated that while the state of the walkway might satisfy King, it
did not satisfy his own standards for safety. (Tr.38:18-25) River Hill,
nevertheless, argues that McMurray’s response (“that’s fine for you”) indicated
approval of King’s actions. Essentially, the
operator argues that MSHA should be estopped from issuing the citations because
MSHA did not raise objections to electrical examinations in the idle buildings
and because of a lack of previous citations from prior inspections. ( See
Resp’t Br. 9-11)

The operator’s argument
that it detrimentally relied on MSHA’s implicit approval of electrical
examinations within the buildings and the lack of previous citations fails. The
Commission has declined to apply equitable estoppel against the government or
its agents. King Knob Coal Co. , 3
FMSHRC 1417, 1421 (June 1981). Generally,
“those who deal with the Government are expected to know the law and may not
rely on the conduct of Government agents contrary to law.” Heckler v. Cmty.
Health Servs. , 467 U.S. 51, 63 (1981); see also Emery Mining Corp. v.
SOL , 744 F.2d 1411, 1416 (10th Cir. 1984). The Commission has held that an
inconsistent enforcement history by MSHA inspectors “does not prevent MSHA from
proceeding under an application of the standard that it concludes is correct.”
Maxxim Rebuild Co ., 38 FMSHRC 605, 610 (Apr. 2016) (citing Mach Mining,
LLC ,   34   FMSHRC   1769 , 1774 (Aug. 2012)) (citing  Nolichuckey Sand Co. ,  22 FMSHRC 1057, 1063-64 (Sept.
2000));  see also Warren Steen Constr., Inc. ,  14 FMSHRC 1125, 1131 (July 1992)
(“prior instances of inconsistent action by MSHA do not constitute a viable
defense to liability.”). Rather, confusing MSHA actions may be a mitigating
factor in determining an operator’s negligence. King Knob , 3 FMSHRC at 1422. I find that a lack of
prior citations and a conversation permitting the idling of the plants without
MSHA’s explicit approval of regular miner access within the buildings cannot be
used to deny the electrician protections afforded to him by the statute. [9]

A mine operator is held strictly liable for violations
that occur at its mine. Asarco, Inc. , 8 FMSHRC 1632, 1634-36 (Nov.
1986), aff’d , 868 F.2d 1195 (10th Cir. 1989). The operator may, however,
avoid liability by showing that it was not properly on notice of the violative
nature of its conduct. See Hecla Ltd. , 38 FMSHRC 2117, 2125 (Aug.
2016) (“To comport with due process, laws must ‘give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly.’”) (citing Grayned v. City of Rockford , 408 U.S.
104, 108 (1972)). The Commission has held that where the language of a standard
is clear and unambiguous, the standard provides operators with fair and
adequate notice. Dynamic Energy, Inc ., 32 FMSHRC 1168, 1172 (Sept. 2010)
(citing Bluestone Coal Corp ., 19 FMSHRC 1025, 1031 (June 1997)). Even in
the absence of actual notice, the Secretary may properly charge the operator
with a violation when a reasonably prudent person familiar with the mining
industry and the protective purposes of the cited standard would have
recognized a hazard warranting corrective action within the purview of the
applicable regulations. Hecla , 38 FMSHRC at 2125; Lafarge N. Am. ,
35 FMSHRC 3497, 3500-01 (Dec. 2013); Ideal Cement Co ., 12 FMSHRC 2409,
2415-16 (Nov. 1990); Ala. By-Products Corp ., 4 FMSHRC 2128, 2129 (Dec.
1982).

I reject the operator’s fair
notice defense as to these violations. The D.C. Circuit has held that the
plain language of section 77.200 gives fair notice of what it requires and that
the regulation is not unconstitutionally vague. Freeman United Coal Mining
Co. v. FMSHRC , 108 F.3d 358, 362 (D.C. Cir.
1997). The plain meaning of the standard requires that structures be maintained
in good repair so that they do not deteriorate to a condition that is
hazardous. Id . The court found that any reasonably prudent person
would recognize that allowing steel beams supporting a walkway to corrode and
deteriorate to the point of collapse constitutes a failure to maintain a
facility in good repair. Id . Similarly, I
find the standard is clear on its face as it applies to the facts in this case.
A reasonably prudent person familiar with the mining industry and the protective
purposes of the standard would recognize that allowing a miner access to
buildings with sagging support beams, deteriorated staircases, and corroded
support columns and walkways constitutes a failure to maintain a structure in
good repair to prevent accidents and injuries to that miner. The operator’s
impressions of MSHA’s actions do not overcome the clear language of the statute
or the standard of a reasonably prudent miner in similar conditions. Accordingly,
I conclude that operator had adequate notice of the requirements of 30 C.F.R. §  77.200.

2. S&S

An S&S violation is a violation “of such nature as
could significantly and substantially contribute to the cause and effect of a
[. . .] mine safety or health hazard.” 30 U.S.C. § 814(d). In order to establish
the S&S nature of a 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);  accord. Buck Creek Coal, Inc. , 52 F.3d 133, 135 (7th
Cir. 1995);  Austin Power, Inc. , 861 F.2d 99, 103 (5th Cir.
1988) (approving  Mathies  criteria). An experienced MSHA
inspector’s opinion that a violation is S&S is entitled to substantial
weight. Harlan Cumberland Coal Co. , 20 FMSHRC 1275, 1278-79 (Dec. 1998).

The Commission has explained that the focus of
the  Mathies  analysis “centers on the interplay between the
second and third steps.” ICG Ill., LLC , 38 FMSHRC 2473, 2475 (Oct. 2016)
(citing  Newtown Energy Inc. , 38 FMSHRC 2033, 2037 (Aug. 2016)). The
second step requires the judge to adequately define the “particular hazard to
which the violation allegedly contributes[,]” and then determine whether “there
exists a reasonable likelihood of the occurrence of the hazard against which
the mandatory safety standard is directed.” Newtown , 38 FMSHRC at 2037-38.
This determination must be made “based on the particular facts surrounding the
violation[.]” Id. at 2038.

The third step requires the judge to assume the
existence of a hazard and assess whether the hazard “would be reasonably likely
to result in serious injury.” Id. at 2037;  ICG , 38
FMSHRC at 2476. The “reasonably likely” provision does not require the
Secretary to prove that an injury was “more probable than not.” U.S. Steel
Mining Co. , 18 FMSHRC 862, 865 (June 1996). In addition, the “Secretary
need not prove a reasonable likelihood that the violation itself will cause
injury” but, rather, that the hazard  contributed to  by the
violation is reasonably likely to cause an injury. Cumberland Coal
Res., LP , 33 FMSHRC 2357, 2365 (Oct. 2011), citing Musser Eng’g,
Inc. & PBS Coals, Inc. , 32 FMSHRC 1257, 1280-81 (Oct. 2010). When
determining whether a hazard is reasonably likely to result in a serious
injury, the Commission has held that the degree of danger increases when an
operator ignores a chronic problem. Arnold Stone, Inc. , 39 FMSHRC 1719,
1723 (Sept. 2017).

I find that the violations were S&S. River Hill
violated section 77.200 by failing to maintain the buildings in good repair to
prevent injuries and accidents to miners. The hazard to which the violation
allegedly contributes is that a person could be struck by falling debris or
trip or fall on or from the many rusted stairs and walkways. (Tr.91:19-93:12) I
find that these hazards were reasonably likely to occur given the severity and
extensiveness of the deterioration, the frequency with which King entered the
plant, and his documented presence throughout the upper floors of both plants. I
also find this hazard was reasonably likely to occur given that of the stairways
King would have used, one was only accessible via a thoroughly corroded second-story
walkway, and the other was supported by posts that were almost completely
deteriorated. (Tr.92:1-7) I find that the mine undertook no corrective measures
to improve the structural integrity of the buildings despite King’s frequent
exposure to the hazardous conditions. I find that the growing structural
deterioration after the alleged closing of both plants increased the danger to
King over time. I find it likely that a trip or a fall contributed to by rotted
floors and stairways, particularly from the upper floors of either building, would
be reasonably likely to result in an injury to a miner. A trip or a fall over
corroded metal is reasonably likely to result in a serious cut, infection, or
severed limb injury—all serious injuries. A fall from the second floor to the
ground below is also reasonably likely to result in a serious injury. Accordingly,
I find the violations were S&S.

3. Gravity

The gravity penalty criterion under section 110(i) of
the Mine Act, 30 U.S.C. § 820(i), “is often viewed in terms of the seriousness
of the violation.” Consolidation Coal Co ., 18 FMSHRC 1541, 1549 (Sept.
1996) (citing Sellersburg Stone Co. , 5 FMSHRC 287, 294-95 (Mar. 1983), aff’d ,
736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co. , 9
FMSHRC 673, 681 (Apr. 1987)). The gravity analysis focuses on factors such as
the likelihood of injury, the severity of an injury if it occurs, and the
number of miners potentially affected.

I find that the gravity of this violation was moderately
serious. Given the increasing decay, I find it reasonably likely that King
would be injured during his inspections within the plants for the reasons
discussed above. If an injury did occur, it could reasonably be expected to be serious,
possibly resulting in a permanently disabling injury. Nevertheless, although I
am not in full agreement with Inspector McMurray’s evaluation after viewing the
totality of the record, I will not alter his official severity rating of “Lost
Workdays or Restricted Duty.” Because the operator restricted access to the
plants to King for his monthly inspections, I find that only one miner was
potentially affected.

4. Negligence and
   Unwarrantable Failure

I find that the violation was a result of the
operator’s high negligence and unwarrantable failure to comply with the cited
standard. The Commission has recognized that “[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 that standard occurs.” A.H. Smith
Stone Co ., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator
has 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.” Jim Walter Res. Inc ., 36 FMSHRC 1972, 1975 (Aug. 2014)
(footnote omitted). The Commission has stated the
real gravamen of high negligence is that it “suggests an aggravated lack of
care that is more than ordinary negligence.” Newtown , 38 FMSHRC at
2049 (citing Topper Coal
Co. , 20 FMSHRC 344, 350 (Apr. 1998)).

The operator was highly negligent when it provided
King regular access to the buildings and when it transferred coal through both
plants as recently as three months prior to the structural inspection. The
degree of danger increases when an operator ignores a chronic problem. Arnold
Stone , 39 FMSHRC at 1723. Thompson acknowledged to the inspector that
unmaintained buildings deteriorate quickly. (Tr.45:14-20) Despite knowing the
increased risk to King, the operator had no intention to correct the
conditions. Given the visible extent of the damage, as demonstrated by
corrosion in the walls and floors, sagging horizontal support beams, large
holes in the vertical support columns, and holes within the support posts of
the stairways, I find that a reasonably prudent person familiar with the mining
industry would know not to use the buildings, much less access its upper
floors. I find that King’s monthly access to such conditions for an extended
period of time, during which the likelihood of a hazard developing continued to
increase, demonstrates an aggravated lack of care that amounts to high
negligence. [10]
Because Thompson was the Tipple’s main supervisor, his knowledge of King’s
regular access to both buildings is imputed to River Hill for purposes of
finding that the operator was highly negligent and engaged in aggravated
conduct.

Confusing MSHA actions may
be a mitigating factor in determining an operator’s negligence. King Knob ,
3 FMSHRC 1422. When consulted regarding the proper protocol to idle the plants,
McMurray failed to raise objection to the operator’s implied monthly electrical
examinations. This failure may have served as a mitigating factor to the
operator’s negligence when the plants lacked visible structural deterioration. However,
the hazardous conditions of the plants at the time of the inspection were
undeniable. Accordingly, I do not find MSHA’s failure to raise initial
objections to King’s electrical examinations a mitigating factor in this case.

Section 104(d) of the Act, 30 U.S.C. § 814(d),
describes unwarrantable failure as more serious conduct by an operator in
connection with a violation. In  Emery Mining Corporation , 9 FMSHRC
1997, 2001 (Dec. 1987), the Commission determined that unwarrantable failure is
aggravated conduct constituting more than ordinary negligence. Unwarrantable
failure is characterized by conduct described as “reckless disregard,” “willful
intent,” “indifference,” or a “serious lack of reasonable care.” Id.  at
2002-04;  Rochester & Pittsburgh Coal Co. , 13 FMSHRC 189, 194
(Feb. 1991);  see also Buck Creek , 52 F.3d at 136 (approving
Commission’s unwarrantable failure test). The Commission has explained that an
“unwarrantable failure” determination is evaluated based on the facts and
circumstances in each case, and in light of each of the following factors: (1)
the length of time that the violation has existed; (2) the extent of the
violative condition; (3) whether the operator has been placed on notice that
greater efforts were necessary for compliance; (4) the operator’s efforts in
abating the violative condition; (5) whether the violation was obvious; (6)
whether the condition posed a high degree of danger; and, (7) the operator’s
knowledge of the existence of the violation. Consolidation Coal Co. , 22
FMSHRC 340, 353 (Mar. 2000);  IO Coal Co. , 31 FMSHRC 1346, 1362-63
(Dec. 2009). All of the relevant facts and circumstances of each case must be
examined to determine if an actor’s conduct is aggravated, or whether
mitigating circumstances exist. Consol , 22 FMSHRC at 353.

I find that the violation was obvious, extensive, and
existed for an extended period of time. As discussed above, I find the operator
had been placed on notice that greater efforts were necessary for compliance. I
find that the operator had no intention to correct the conditions and that,
apart from one movable pipe warning against access to a rotted stairwell, no
steps were taken to abate the condition prior to the issuance of the citations.
For the same reasons provided in my S&S analysis, I find that the
conditions presented a high degree of danger. While the Secretary presented
little evidence that Thompson, as supervisor, had actual knowledge of the
violations, [11]
on balance, my findings on the factors establish that the operator engaged in
aggravated conduct and unwarrantably failed to comply with the cited standard.

5. Penalty

Under section 110(i) of the Mine Act, 30 U.S.C. §
820(i), Judges must consider six criteria in assessing a penalty: (1) the
operator’s history of previous violations; (2) the appropriateness of such
penalty to the size of the business of the operator charged; (3) whether the
operator was negligent; (4) the effect on the operator’s ability to continue in
business; (5) the gravity of the violation; and, (6) the demonstrated good
faith of the person charged in attempting to achieve rapid compliance after
notification of a violation. The Commission has held that Judges must make
findings of fact based on these statutory penalty criteria. Sellersburg
Stone Co ., 5 FMSHRC 287, 292 (Mar. 1983), aff’d , 736 F.2d 1147 (7th
Cir. 1984). Once these findings have been made, a Judge’s penalty assessment is
an exercise of discretion “bounded by proper consideration of the statutory
criteria and the deterrent purpose underlying the Act’s penalty assessment
scheme.” Id . at 294; see also Cantera Green , 22 FMSHRC
616, 620 (May 2000); Arnold Stone , 39 FMSHRC at 1724.

I find that the proposed penalties of $2,000.00 are
appropriate for both Citation No. 8012325 and Order No. 8012326. I assess this
total penalty of $4,000.00 because the cited conditions created severe and
obvious hazards and because River Hill was highly negligent.

B.        PENN 2014-0956-R

River Hill contests the 104(b) order, No. 8012327, arguing
the order was invalid. River Hill requests the 104(b) order be vacated by
arguing the following: (1) the inspector abused his discretion because he had
an improper understanding of the “full abatement” necessary to terminate a
104(b) order; (2) the abatement period to correct the conditions was
unreasonable; and, (3) the inspector’s refusal to extend the abatement period
was unreasonable. ( Resp’t Br. 14-15)

The Secretary establishes a prima facie case that a
section 104(b) order is valid by proving by a preponderance of the evidence
that the violation described in the citation existed at the time the section
104(b) withdrawal order was issued. Mid-Continent Res., Inc ., 11 FMSHRC
505, 509 (Apr. 1989). The Commission has held that it is the Secretary, as the
proponent of a section 104(b) order, who bears the burden of proving that the
violation described in the underlying citation has not been abated within the
time period originally fixed or as subsequently extended. Id . Here, the termination
deadline for Citation No. 8012325 was set for September 2, 2014. (Tr.107:3-5;
Ex. S–1) Within this five-day abatement period, the operator welded the railing
that was across the steps, put “some clasps” on the garage door, put a lock on,
put up some no trespassing signs, and locked the door. (Tr.107:11-15; 149:8-10)
However, the operator hung the key in its office—a location accessible to the
mine’s employees. (Tr.107:15-17) Because of the accessibility to the key,
access to the dangerous conditions existed on September 2, 2014. Accordingly, I
find the violative condition existed at the time the 104(b) order was issued.

In contesting a section 104(b) order, an operator may
challenge the reasonableness of the length of time set for abatement or the
Secretary’s failure to extend that time. Clinchfield Coal Co ., 11 FMSHRC
2120, 2128 (Nov. 1989). The Commission has applied an “abuse of discretion”
standard in reviewing an inspector’s issuance of a failure to abate an order. See
Energy W. Mining Co ., 18 FMSHRC 565, 569 (Apr. 1996) (applying an abuse
of discretion standard in reviewing Secretary’s failure to extend abatement
time). An abuse of discretion has been found when “there is no evidence to
support the decision or if the decision is based on an improper understanding
of the law.” Id . (citations omitted).

In challenging the reasonableness of the abatement
period, River Hill asserts that the inspector abused his discretion based on an
improper understanding of the law when he allotted an abatement period of five
days—only two of which were business days. (Resp’t Br. 14) The inspector
testified that the termination deadline does not require full abatement of a
violation. (Tr.142:1-25; 147:20-148:16) River Hill asserts that the Commission
requires full abatement by the deadline and the inspector’s misunderstanding of
the law led him to set an unreasonably short abatement period. ( Resp’t Br. 14-15) The Commission does
require full abatement by the deadline. Hibbing Taconite Co ., 38 FMSHRC
393, 399 (Mar. 2016). Accordingly, I find the inspector had an improper
understanding of the law.

The analysis next turns to whether Inspector McMurray’s
improper understanding of the law subjected the operator to an unreasonable
abatement deadline; in other words, whether achieving full abatement was
reasonable within the abatement period.

The Mine Act does not indicate what satisfies full
abatement. When the Mine Act is silent on an issue, the Secretary’s
interpretation, which reasonably effectuates the health and safety goals of the
Act, is controlling. Sec’y of Labor on behalf of Wamsley v. Mutual Mining ,
Inc. , 80 F.3d 110, 115 (4th Cir. 1996). Deference is accorded to “an
agency’s interpretation of the statute it is charged with administering when
that interpretation is reasonable.” Energy W. Mining Co . v . FMSHRC ,
40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron U.S.A., Inc ., v .
Nat. Res. Def. Council, Inc ., 467 U.S. 837, 844 (1984)).

I find that full abatement of the violations could be
achieved by restricting all access to the buildings. My review is limited to
whether the Secretary’s interpretation of full abatement reasonably effectuates
the goals of the act. The cited regulation requires that mine structures be
maintained in good repair to prevent accidents and inquiries to employees. I
further find the purpose of the regulation is to prevent accidents and injuries
to miners from unsafe structural conditions. McMurray testified that he
considered the violations fully abated when access to the structurally unsound
conditions was “totally eliminated,” thus preventing accidents and injuries to
mine employees. [12]
(Tr.109:3-11) I find that the Secretary’s interpretation of what constitutes
full abatement of the citations reasonably effectuates the goals of the Act.

The abatement period was not unreasonable. Within the
abatement period, the operator welded the railing that was across the steps,
put “some clasps” on the garage door, put a lock on, put up no trespassing
signs, and locked the door but hung the key in the office. (Tr.107:11-17;
149:8-10) I find that five days is a reasonable duration for an operator to
install locks on the entrances of the buildings and prevent employee access to
the conditions. I further find that the assigned abatement period was a
reasonable amount of time to fully abate the citations by restricting access to
the buildings. I conclude that the inspector’s misunderstanding of the law did
not subject the operator to an unreasonable abatement deadline.  

River Hill’s argument that the operator unreasonably
refused to extend the abatement period also fails. The inspector must determine
whether an extension in abatement time is warranted or whether he should issue
a section 104(b) order. Hibbing Taconite , 38 FMSHRC at 399. In making
that determination, the inspector may consider information such as whether the
operator delayed beginning the abatement process and whether any delay was
justified, giving priority to the safety of miners exposed to the unabated
condition. Id . By installing some locks on the buildings, I find that
the operator demonstrated that abatement of the conditions could reasonably be
achieved in five days. By keeping the key to the buildings in an accessible
location, however, the operator unjustifiably failed to prevent miner access to
the buildings. I find that the inspector did not abuse his discretion when he
determined that further extension of the abatement time was not warranted.

Finally, I note that River Hill’s post-hearing argument
that the termination deadline was unreasonable because it would have taken “months
to correct the conditions” assumes full abatement required a structural
overhaul and does not comport with the facts. While repairing and rebuilding
the Old Plant, which would have taken months to accomplish at great cost, was but
one way of terminating the citation, totally restricting access was another
sufficient option. Respondent appears to have realized this as evidenced by its
attempts at restricting access—putting locks on doors, installing no
trespassing signs, putting up posters—in the five days between August 28, 2014,
and September 2, 2014. Further, McMurray testified that King had commented that
repairing and rebuilding the tipple was not a realistic option for Respondent,
which is why both plants had been allowed to deteriorate the way they did. (Tr.82:3-83:3)

In any event, and despite Inspector McMurray’s
misunderstanding of the requirement to fully abate, River Hill should have been
aware of the expectations placed on them. McMurray testified that he gives
operators short initial termination deadlines but liberally grants extensions. (Tr.142:8-21)
Importantly, McMurray had utilized this process with River Hill in the past, so
they knew or should have known that there was no realistic expectation to
completely repair and rebuild the Old Plant in only five days. [13] (Tr.142:22-25)

The 104(b) order was validly issued. The record indicates
the operator did not conduct sufficient repairs or sufficiently limit access to
the Old Plant within the abatement period. I find the violative conditions
existed at the time the 104(b) order was issued. While some locks were on the
building, warning posters were put up, and a railing was welded across the
steps, the key to the locks was accessible to mine employees by the abatement
deadline. (Tr.107:11-17) Because of the
access to the key, I find the employees had access to the conditions and were
susceptible to the accidents and injuries caused by the violations. I find the
104(b) order was valid because the operator failed to abate the violation by
the abatement deadline.

IV. ORDER

For the reasons set forth above, Citation No. 8012325
and Order No. 8012326 are AFFIRMED .

WHEREFORE , it is ORDERED that River Hill
Coal Company, Inc. PAY a total penalty of $4,000.00 within forty (40)
days of the date of this decision. [14]

/s/
L. Zane Gill

L.
Zane Gill

Administrative
Law Judge

Distribution:

Ryan M. Kooi, Esq.

U.S. Department of Labor

Office of the Regional Solicitor

The Curtis Center

170 S. Independence Mall West, Suite 630E

Philadelphia, PA 19106-3306

[email protected]

Joseph A. Yuhas, Esq.

P.O. Box 1025

Northern Cambria, PA 15714-3025

[email protected]

[1] Both plants are referred to by a variety of names
throughout the testimony. The Old Processing Plant is also known as the Old
Plant, the Old Side, the Old Side Tipple, and the Screen building. (Tr.25:1-3;
136:16-20; 137:13-21) The New Old Processing Plant is also known as the New Old
Plant, the New Old Building, the New Side Tipple, the New Side, the Fines
Building, and the Wash Plant. (Tr.25:4-5; 87:2-6; 136:6-15; 137:9-12; 228:20-229:4)
For the purpose of clarity, I refer to the New Old Processing Plant as the Wash
Plant.

[2] At the time of the
hearing, McMurray had been an MSHA employee for 32 years. (Tr.13:23-25; 121:6) As
a surface mine inspector, McMurray conducted thousands of inspections on
surface mines and served as a technical advisor to other inspectors. (Tr.14:1-15:23)

[3] At the time of the hearing, the Secretary’s expert
witness was a senior civil engineer and had worked in technical support for
MSHA for 28 years. (Tr.158:5-12; 167:4-15)

[4] After the inspection, River Hill welded a bar across
the entrance of the stairwell. (Tr.44:22-25)

[5] Diagonal braces provide lateral resistance to the
structural frame and resist stress from mechanical vibrations that could weaken
the structural integrity of the building. (Tr.177:1-20)

[6] On July 31, 2013, King’s records indicate he repaired
an electrical ballast on the fifth floor of the New Side Tipple plant. (Tr.75:19-76:8;
Ex. S–21, at 1) Thompson and McMurray disagree whether the New Side Tipple
refers to the Wash Plant. (Tr.136:21-137:12; 228:7-229:11) The issue is not
determinative. Thompson admitted that King accessed the upper levels of the
Wash Plant during inspections. (Tr.214:2-11)

[7] As part of the procedure to initially close the
buildings a year earlier, the operator hosed down the plants from the top to
the bottom floors on August 29, 2013. (Tr.74:16-75:18; 225:21-226:6; Ex. S–21,
at 3)

[8] Order No. 8012327 only applies to the Old Plant, as
personnel were already required to be withdrawn from the Wash Plant pursuant to
104(d)(1) Order No. 8012326. Accordingly, Order No. 8012327 only refers to
Citation No. 8012325 in the condition or practice narrative. (Ex. S–3)

[9] T here is no evidence that the Secretary
actually took inconsistent positions with respect to this particular
application of the standard. Neither party testified that MSHA allowed a miner to enter the unmaintained buildings and expose himself to potentially serious injuries. It was only the
operator’s “understanding” of the discussion that led it to conclude that it
was acceptable to provide the electrician regular access throughout both
buildings despite the severity of structural d ecay . ( Tr.211:13-22;
222:13-19) As for the lack of citations from previous inspections, the
inspectors understood access to the idled plants was restricted and,
consequently, performed only cursory inspections of the buildings. (Tr.216:22-217:7)

[10] Thompson testified that, other than himself, King was
the only employee allowed to enter the buildings. (Tr.242:24-243:1) In Arnold
Stone , the operator’s neglect was not diminished simply because only two
miners were exposed to a known and obvious danger over a period of time. 39
FMSHRC at 1734. Similarly, the presence of only one employee within the plants
does not diminish the level of negligence here.

[11] Thompson accompanied an inspector through a previous
inspection of the buildings, but the state of the deterioration at that time
remains unclear. (Tr.215:10-217:7)

[12] While the inspector did not inform the operator how
to abate the citations, the operator considered and made suggestions on how to
best prevent access to the buildings. (Tr.105:13-106:5)

[13] Application of
the operator’s definition of full abatement—i.e., repairing and rebuilding the
tipple—would have them remain in violation of section 77.200. Fortunately
for the operator, my review is limited to whether the Secretary’s
interpretation of full abatement is reasonable.

[14] Payment should be sent to: Mine Safety & Health
Administration, U.S. Department of Labor, Payment Office, P.O. Box 790390, St.
Louis, MO 63179-0390.