Secretary of Labor v. Drummond Company

Plain-English summary

Coal, rock, and blocks had accumulated near a refuge alternative at Drummond's Shoal Creek Mine. Judge Kenneth R. Andrews found that the unexpected material could interfere with miners following a lifeline in low visibility, cause disorientation, and prevent access to breathable air during an emergency. He affirmed the violation as significant and substantial but reduced negligence from moderate to low because the refuge had been moved after the preshift examination and no company agent was shown to know of the condition. The penalty for that citation was reduced to $7,000. Drummond withdrew its contest of a second $1,203 citation, producing a total payment of $8,203.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.1506(g)
• Outcome: The refuge-alternative citation remained S&S, negligence was reduced to low, and total penalties of $8,203 were ordered.
• Key point: Material need not block a refuge door to interfere with emergency use, but recent movement of the refuge and lack of management knowledge can substantially mitigate negligence.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

7 PARKWAY CENTER,
SUITE 290

875 GREENTREE ROAD

PITTSBURGH, PA 15220

TELEPHONE:
412-920-7240 / FAX: 412-920-8689

March 17, 2014

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

DRUMMOND
COMPANY,

Respondent

CIVIL
PENALTY PROCEEDINGS

Docket
No. SE 2011-274

A.C.
No. 01-02901-242524

Docket
No. SE 2011-403

A.C.
No. 01-02901-248080

Mine:
Shoal Creek Mine

DECISION

Appearances:  Thomas
A. Grooms, Esq., Office of the Solicitor, U.S. Department of  Labor, 618 Church
Street, Suite 230, Nashville, Tennessee for the Secretary of Labor

John
Church, Conference and Litigation Representative, U.S. Department of Labor,
Mine Safety and Health Administration, 135 Gemini Circle, Suite 213,
Birmingham,                              Alabama for the Secretary of Labor

Noelle
Holladay True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151
Beaumont Centre Circle, Suite 375, Lexington, Kentucky for Respondent

Damon
Jay Boiles III, Esq., Drummond Company, Inc., P.O. Box 10246, Birmingham, Alabama
for Respondent

Before:             Judge
Andrews

These
civil penalty proceedings are conducted pursuant to the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (2000) (the “Mine Act” or
“Act”). This matter concerns Citation Nos. 8518691 and 7699789,
both issued under Section 104(a) of the Act and served upon Drummond Company,
Inc. (“Drummond” or “Respondent”) by the Mine Safety and Health Administration
(“MSHA”). A hearing was held on July 10, 2013 in Birmingham, Alabama at which
the parties presented testimony and documentary evidence. After the hearing,
the parties submitted Post Hearing Briefs and informed the undersigned that
Respondent withdrew its contest of Citation No. 7699789 and agreed to pay the
assessed penalty of $1,203.00. The assessed penalty for Citation No. 8518691 is
$8,209.00.

PROCEDURAL
HISTORY

These
dockets collectively contained twenty-nine citations and were assessed
penalties totaling $81,620.00. On June 24, 2011, they were assigned to
Administrative Law Judge Jeffrey Tureck. On March 20, 2012, a motion for
partial settlement that included twenty-five citations was approved. The
Secretary filed a motion for summary judgment concerning Citation Nos. 8518691
and 7699789 on October 9, 2012, which was denied in a decision by Judge Tureck
on November 23, 2012. Later, on November 26, 2012, a second motion for partial
settlement that covered two unrelated citations was approved, leaving only
Citation Nos. 8518691 and 7699789 at issue for hearing. These cases were
reassigned to the undersigned on February 12, 2013.

STIPULATIONS

1.         Respondent
was the operator of the Shoal Creek Mine at all relevant times.

2.         The
Shoal Creek Mine is a “mine” as that term is defined in Section 3(h) of the Mine
Act.

3.         Operations
at the Shoal Creek Mine involve products which enter commerce or products which
affect commerce.

4.         Respondent
is subject to the Federal Mine Safety & Health Act of 1977.

5.         The
Citations attached to Exhibit A of the Secretary’s Petitions were issued to Respondent.

6.         The
penalty assessed for the alleged violations are appropriate to the size of the operator.

7.         The
operator demonstrated good faith in attempting to achieve rapid compliance after
notification of the alleged violations.

8.         The
penalties assessed will not affect the operator’s ability to continue in business.

THE CITATION

On
November 15, 2013, MSHA Inspector Stanley Frank Wilkosz (“Wilkosz”) issued
Citation No. 8518691 for a violation of 30 C.F.R. § 75.1506(g). The Condition
or Practice stated:

At all times,
the site and area around the refuge alternative shall be kept clear of
machinery, materials and obstructions that could interfere with the deployment
or use of the refuge alternative. The refuge alternative on the G-9 long wall
section #31 brattice had coal, rocks and blocks 1.5 feet deep by 8 feet wide
from the side of the chamber and toward the door.

GX-1.[1] Wilkosz designated this violation as reasonably
likely to result in fatal injuries to ten miners and significant and
substantial (“S&S”) in nature. He further evaluated Respondent’s negligence
as moderate.Id. The citation was terminated on November 17, 2013 when
the refuge alternative was moved to the 34 cross cut, which was well
rock-dusted, had adequate roof and rib conditions, and was free from
obstructions. Id.

LAW AND
REGULATIONS

Wilkosz
cited Respondent for a violation of 30 C.F.R. § 75.1506(g). This regulation,
entitled “Refuge alternatives,” states, “[a]t all times, the site and area
around the refuge alternative shall be kept clear of machinery, materials, and
obstructions that could interfere with the deployment or use of the refuge
alternative.” 30 C.F.R. § 75.1506(g).

Wilkosz
found that this violation was S&S in nature and was the result of moderate
negligence. A significant and substantial (“S&S”) violation is described in
section 104(d)(1) of the Act as a violation “of such nature as could
significantly and substantially contribute to the cause and effect of a coal or
other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is
properly designated S&S “if, based upon 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).

The Commission has explained that:

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

Mathies
Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also,
Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin
Power, Inc. v. Secretary, 861 F.2d 99,103-04 (5th Cir. 1988), aff'g
Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies
criteria).

The
difficulty with finding a violation S&S normally comes with the third
element of the Mathies formula.  In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129
(Aug. 1985), the Commission provided additional guidance: We have
explained further that the third element of the Mathies formula
“requires that the Secretary establish a reasonable likelihood that the hazard
contributed to will result in an event in which there is an injury.” U.S.
Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (August 1984). We have
emphasized that, in accordance with the language of section 104(d)(1), it is
the contribution of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC
1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573,
1574-75 (July 1984).

This evaluation is made in consideration of
the length of time that the violative condition existed prior to the citation
and the time it would have existed if normal mining operations had continued. Elk
Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co.,
Inc., 6 FMSHRC at 1574. The question of whether a particular violation is
S&S must be based on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007 (Dec. 1987).

Negligence
“is conduct, either by commission or omission, which falls below a standard of
care established under the Mine Act to protect miners against the risks of
harm.” 30 C.F.R. § 100.3(d). “A mine operator is required to be on the alert
for conditions and practices in the mine that affect the safety or health of
miners and to take steps necessary to correct or prevent hazardous conditions
or practices.” Id. MSHA considers mitigating circumstances which may
include, but are not limited to, actions taken by the operator to prevent or
correct hazardous conditions or practices. Id. Low negligence exists
when “[t]he operator knew or should have known of the violative condition or
practice, but there are considerable mitigating circumstances.” Id. Moderate
negligence is when “[t]he operator knew or should have known of the violative
condition or practice, but there are mitigating circumstances.” Id. High
negligence exists when “[t]he operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.” Id.
See also Brody Mining, LLC, 2011 WL 2745785 (2011)(ALJ). Finally, the
operator is guilty of reckless disregard where it “displayed conduct which
exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d).          

CONTENTIONS OF
THE PARTIES

The
Secretary contends that Respondent violated 30 C.F.R. § 75.1506(g) when it did
not remove the material that accumulated in front of the RA when it was moved. He
argues that the citation was correctly designated as S&S because miners
could trip over the accumulation, lose the lifeline and become disoriented
interfering with their ability to retreat to the RA. He also states that the
alleged violation was the result of moderate negligence because the RA was in
an area of high travel, so a foreman should have noticed the material.

Respondent
argues that no violation of 30 C.F.R. § 75.1506(g) occurred because nothing
interfered with the use or deployment of the RA. In the alternative, it
contends that the alleged violation is neither S&S nor the result of
moderate negligence. In support, it states that the material acted as a sort of
ramp to the entrance of the RA and would actually help miners in the event of
an emergency situation. It also argues that the RA had been moved after the
preshift examination and had only been in place for a couple of hours at the
time that the citation was issued.

SUMMARY OF THE
TESTIMONY

The findings of
fact are based on the record as a whole and my careful observation of the
witnesses during their testimony. In resolving any conflicts in the testimony,
I have taken into consideration the interests of the witnesses, or lack
thereof, and consistencies, or inconsistencies, in each witness’s testimony and
between the testimonies of the witnesses. In evaluating the testimony of each
witness, I have also relied on his demeanor. Any failure to provide detail as
to each witness’s testimony is not to be deemed a failure on my part to have
fully considered it. The fact that some evidence is not discussed does not
indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000)(administrative law judge is not required to
discuss all evidence and failure to cite specific evidence does not mean it was
not considered). I have also fully considered the contents of the Official File
including the pre- and post-hearing submissions of the parties, and the
exhibits admitted into evidence.

1.     
Testimony
of Stanley Frank Wilkosz

Wilkosz
is an inspector who has worked for MSHA for approximately five years. Tr. 15. He
began work in the coal industry in 1969 at the Renton Coal Mine in Renton,
Pennsylvania where he worked for about twelve years. Tr. 16. During this time,
he was a general laborer, an equipment operator and a fire boss. Tr. 17. After
a twenty year hiatus, Wilkosz returned to the industry with Respondent at the
Shoal Creek Mine in 2005 as a face foreman. Tr. 17, 19. In this capacity, he
was responsible for taking air readings, conducting gas checks and conducting
preshift and onshift examinations. Tr. 19. He continued in this position until
joining MSHA in 2008. Tr. 20.

Wilkosz
issued Citation No. 8518691 on November 15, 2010, while at the mine conducting
a regular quarterly inspection. Tr. 20-21; GX-1. He was traveling a return air
course with Safety Director Larry Armstrong (“Armstrong”) and Union
Representative Joe Weldon when he noticed a pile of rocks along the side of the
refuge alternative (“RA”). Tr. 21-23; GX-3. According to Wilkosz, the RA is a
man-made structure that supports life by facilitating communications with the
outside, supplying its own oxygen supply, filtering incoming air and supplying
food and water. Tr. 22. In the event of a disaster, this is where the miners
retreat to as a last resort. Tr. 22. Because it is required to be within a
certain distance of the face, it must advance and retreat with the miners. Tr.
23.

Wilkosz
testified that the RA, including the door, was blocked by coal and rocks, as
well as blocks that had been used to build the stopping behind it. Tr. 27, 36;
GX-3. When asked, he did not recall Armstrong opening the door. Tr. 28. He
stated that the average depth of the debris was one and a half feet, which he
measured using a measuring tape at the beginning and looking toward the wall. Tr.

41. According to Wilkosz, it could have been deeper, but he did not dig. Tr.
42. He theorized that the debris pile was created as the RA was pushed along
    the roadway by a heavy-duty forklift. Tr. 39-40. He did not attempt to open the
    door because the RA is actually sealed until an emergency situation occurs. Tr.
43. He testified at the hearing that if miners cannot get into the RA, it is
    not considered to be “deployed.” Tr. 45. In his opinion, tripping hazards
    constitute an interference or obstruction with escaping or getting to a refuge
    alternative. Tr. 47.

During
cross-examination, Wilkosz acknowledged that refuge alternatives were not
required when he was employed at Respondent’s Shoal Creek Mine. Tr. 44. Therefore,
he has no experience in examining them. Tr. 45. He further admitted that during
his deposition he stated that he did not see anything that interfered with
“deployment,” but he did see obstructions that he did not measure. Tr. 46, 54. During
the hearing, he also stated that regardless of debris or obstructions, miners
must step up into the RA anyway. Tr. 48-49.

Wilkosz
determined that the violation was reasonably likely to result in injury and
S&S because miners would be following the lifeline in a disaster or
emergency situation in which they can’t see. Tr. 30, 38. If they hit tripping
hazards, which can reasonably be assumed to cause broken legs, etc., it is
likely that miners would not make it into the RA. Tr. 30. If miners were to
lose the lifeline by tripping over the debris, they could become disoriented
because the environment is totally black, according to Wilkosz. Tr. 37, 40. In
this environment, head lamps and cap lights would be useless because of the
smoke and dust in the air.[2] Tr. 30. Given this
situation, he found that injuries would most
likely be fatal because miners would not be able to get into breathable
airspace. Tr. 36. He explained that fires on a belt line or in coal creates
noxious gases and takes oxygen out of the air. Tr. 37.

Wilkosz
further designated the negligence as moderate. Ex. 1. He testified that the
longwall coordinator stated that the RA had been moved that morning. Tr. 38. Wilkosz
acknowledged that the RA would have been moved after the preshift examination
and admitted that he had no evidence that a person of responsibility had seen
the condition; although, he testified that someone should have. Tr. 38-39, 51,

53. He stated that it was a heavily trafficked with foremen passing it several
    times throughout the shift. Tr. 51. He did not withdraw the miners or take the
    RA out of service because Armstrong represented that Respondent would move the
    RA. Tr. 62.

2.     
Testimony
of Larry Armstrong

Armstrong
possesses a Bachelor’s as well as a Master’s degree in Counseling. Tr. 67. He
worked in the mining industry from approximately 1972-1988 as an inside
laborer, equipment operator and electrician for Jim Walter Resources before
leaving the industry entirely to pursue a career in counseling. Tr. 68. He
returned to mining at Drummond in 2004 as a safety inspector. Tr. 68. In this
capacity, he travels with inspectors during their inspections, including during
Wilkosz’s inspection on November 15, 2010. Tr. 69, 74. He makes notes of what
he sees and points out mitigating circumstances. Tr. 69. He also tries to
correct any conditions that may not be citable, but need correcting
nonetheless. Tr. 69. Outside of official inspections, he inspects the mine
himself, including the belts and mine ARCS[3]. Tr. 69. Armstrong
testified that he is certified in installing and examining refuge alternatives.
Tr. 71.

According to
Armstrong, a refuge alternative is a safe place for miners to gather in case of
an emergency such as a fire, an ignition or an explosion. Tr. 72. It provides
the miners with fresh air. Tr. 72. He explained that the RA has a step up into
it which measures approximately eleven and three quarters inches from floor to
door. Tr. 74. During the inspection, he described the debris as coal and dirt
that had “kind of tapered up into an incline.” Tr. 75. Armstrong stated that
the area was smooth and neither he nor Wilkosz had any difficulty walking in
the area. Tr. 79-80. In his opinion, the depth was nine inches at the most
because it started even with the floor and was not over the top of the step. Tr.

75. He admitted that he did not take any measurements, but he stated that he
    did not see Wilkosz take any either. Tr. 76-77. Armstrong further disputed
    Wilkosz assertion of the location of material around the RA. Tr. 78; GX-3.

Armstrong
testified that he did open the door to the RA during the inspection, and he did
not have push any material aside to do so. Tr. 80, 82. He did this because
Wilkosz made that the comment that the door may have been obstructed. Tr. 81. However,
Armstrong stated that Wilkosz turned and walked away just as he was
demonstrating that the door could be opened. Tr. 81. He was certain of these
events because it was the first refuge alternative that he had ever opened. Tr.

81. Armstrong stated that it was possible that Wilkosz had not heard him say
    that the door would be opened. Tr. 82.

Armstrong
explained that a branch line of the lifeline was physically attached to the RA
door on both the left and right sides. Tr.82-84; GX-3. He said that the material
began approximately three feet from the RA, and he believed that, in the event
of an emergency, the debris was such that, rather than interference, it may
have actually helped miners by acting as a sort of ramp. Tr. 85, 89-90. Even if
a miner were to trip and lose the lifeline, he explained that he or she would
then likely reach up and to the right for the lifeline at which time the RA
would be found. Tr. 89. Armstrong’s boss, Randy Clements (“Clements”) also
inspected the RA approximately sixteen hours after the citation was issued. Tr.
90-91. According to Armstrong, Clements also commented that the material did
not interfere with the use of the door. Tr. 91.

During
cross-examination, Armstrong admitted that he did see “some” rocks and blocks
in the area, as well as the coal and dirt that was even with the step. Tr. 101;
GX-12.  He later stated that the blocks had been moved out of the way by hand
into the corners to create a pathway for the movement of the RA, and they would
not have interfered with miners seeking refuge. Tr. 101, 106, 108. Further,
while Armstrong testified that he actually asked Wilkosz if he wanted to see
the door a second time, he generally described Wilkosz’s reaction as
non-responsive. Tr. 103-104.

3.     
Testimony
of Kenneth Randy Clements

Clements started
in the mines at Jim Walter Resources in 1979. Tr. 114. Here, he basically
operated every type of equipment, including the miner, roof bolter, shuttle car
and scoop. Tr. 114. While transferring between mines, he became a safety
inspector, then a safety superintendent. Tr. 114-115. At the time that the
citation was issued, he held the title of Safety Superintendent for the Shoal
Creek Mine. Tr. 115. In this capacity, Clements oversees all safety aspects of
the mine such as dust sample collection and maintenance calibration. Tr. 115. He
reviews all citations that are issued to the Mine and determines which should
be contested. Tr. 115.

Clements
explained that at the time that the instant citation was issued, refuge
alternatives were a new requirement and a “touchy issue” with operators. Tr.

116. According to Clements, as a new legal requirement, operators were trying
     to make sure that everything was “right.” Tr. 116. He too was trained and
     certified by Jim Walters Resources in maintaining and examining the RA. Tr.
117. Sixteen hours after Citation No. 8518691 was issued, Clements accompanied
     Armstrong to the RA. Tr. 118. He averred that the conditions were the same as
     the time of issuance because he could see the pathway of the machinery around
     the RA, which would not have been viewable if the miners had begun to shovel
     the area out. Tr. 118. Given the conditions as they existed, Clements testified
     that he did not understand why the citation was issued. Tr. 117.

Clements stated
that he was able to open the door to the RA with no obstruction or pushing of
material. Tr. 117. He further testified that he actually walked on the material
and did not see anything in the travelway that would constitute a tripping
hazard. Tr. 119. He did see some blocks on the left-hand side of the travelway;
however, he argued that it did not interfere with his approach to the RA. Tr.
119-120. At the time of the hearing, Clements could not recall whether the
lifeline was attached in this particular instance, but stated that it usually
is now. Tr. 120-121. He admitted that Respondent did not comply with the
requested termination time, but he argued that it is not uncommon for MSHA to
set a time that it knows cannot be met. Tr. 123.

ANAYLYSIS AND
CONCLUSIONS

1.     
 Validity

I find that the
Secretary has met his burden of proving a violation of 30 C.F.R. § 75.1506(g). Wilkosz
credibly testified that there was material laying in front of the door to the
RA. In fact, Respondent does not dispute this fact. Instead, it argues that the
material did not interfere with the use or deployment of the RA. At hearing,
Wilkosz testified that the material was blocking the door. However, this
information is not located in the narrative or the citation, and Wilkosz later
acknowledged that, in his deposition, he stated that the material was not
blocking the door. In light of this, I discredit the testimony that the door
was blocked.

Regardless, I
find that the material interfered with the use of the RA. In training for
emergency situations, miners were taught to follow the lifeline and branch
line. At the end of this branch line, they anticipated a step up into the RA. If
a miner were to trip over the unexpected material and lose the lifeline, he
could become very disoriented. In his search for the RA, he would be expecting
to find a step if he were on his hands and knees. The material (as described by
both Wilkosz and Armstrong) would prevent this discovery.

Respondent
argues that the “ramp” would actually be helpful to the miners in that they
would not have to step up into the RA in the low visibility. I find this
unpersuasive. If a miner were in an emergency situation, his training would
presumably guide him in how to proceed. Given this fact, the “ramp” would serve
to confuse rather than guide. As such, I discredit this argument and find that
the Secretary has proven a violation of the regulation.

2.  S&S

I further agree
that the Secretary has proven that this violation is S&S in nature. As
stated above, a violation of the regulation has been found. This violation
contributes to the hazard of a miner falling during an emergency situation,
becoming disoriented and failing to find the RA. If this were to happen, it is
reasonably likely that he could suffer inhalation or burn injuries depending on
the particular emergency requiring evacuation. There is no doubt that these
injuries could lead to fatalities. In light of this, I find that the violation
is S&S in nature.

Like the
lifeline regulation, I find that 30 C.F.R. § 75.1506(g) is an emergency
regulation. Indeed, refuge alternatives are a last-resort means of survival. To
apply the regulation in any other situation than an emergency is to defy the
basic meaning of it. Secretary of Labor v. Cumberland Coal Resources, LP,
33 FMSHRC 2357, 2367 (Oct. 2011), aff’d Cumberland Coal Resources, LP
v. Secretary of Labor, 717 F.3d 1020 (D.C. Cir. 2013). I do not rule that
every interference with a refuge alternative is S&S; however, given the
circumstances as they exist in this particular situation, I find that in an
emergency situation, the material would have been reasonably likely to result
in the reasonably serious injury, including fatalities, to miners.

3       
Negligence

I do not,
however, find that the Secretary has proven that the violation was the result
of Respondent’s moderate negligence. As stated before, moderate negligence
occurs when the operator new or should have known about the condition, but
there are some mitigating factors. While I agree that Respondent should have
known about the condition, there are considerable mitigating factors here. First,
Wilkosz received information from the longwall coordinator and acknowledged at
hearing that the RA was moved after the preshift examination occurred that
morning. Second, Wilkosz admits that he had no information whatsoever to
suggest that any agent of Respondent had knowledge of the material. Wilkosz
based his designation on the idea that the area was heavily trafficked and
foreman would have passed it several times during the shift. However, there was
no evidence provided because the inspector had none. Given all of this
information, I find that the condition was the result of Respondent’s low
negligence.

4.     
Penalty

Section 110(i)
of the Mine Act delegates to the Commission and its judges the authority to
assess all civil penalties provided in the Act. 30 U.S.C. § 820(i). The Act
delegates the duty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a)
and 820(a). Thus, when an operator notifies the Secretary that it intends to
challenge a penalty, the Secretary petitions the Commission to assess the
penalty. 29 C.F.R. § 2700.28. The Act requires that in assessing civil monetary
penalties the Commission and its judges shall consider the six statutory
penalty criteria, found at Section 110(i) of the Act:

[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.

Id.

The
Secretary and Respondent stipulated to the appropriateness of the penalty, the effect
on the operator’s ability to continue in business and the demonstrated good
faith in achieving rapid compliance. As stated above, I have affirmed the
gravity designation and decreased the negligence. Having considered each of the
six criteria and given that I decreased the negligence attributable to
Drummond, I find that the penalty for Citation No. 8518691 should be decreased
to $7,000.00.    

ORDER

In
light of the foregoing, it is ORDERED that Citation No. 8518691 is MODIFIED
to reduce the negligence attributable to the operator from “Moderate” to “Low.”
Citation No. 7699789 remains as issued. It is further ORDERED that
Drummond Company, Inc., PAY the Secretary of Labor the sum of $8,203.00
within 30 days of the date of this Decision.[4] Upon receipt of payment,
these cases are hereby DISMISSED.

/s/
Kenneth R. Andrews     

Kenneth
R. Andrews

Administrative
Law Judge

Distribution:

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

John Church,
Conference and Litigation Representative, U.S. Department of Labor, Mine Safety
and Health Administration, 135 Gemini Circle, Suite 213, Birmingham, AL 35209

Noelle Holladay
True, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont
Centre Circle, Suite 375, Lexington, KY 40513

Damon Jay Boiles
III, Esq., Drummond Company, Inc., P.O. Box 10246, Birmingham, AL 35202

/kmb

[1]Hereinafter, Government exhibits
will be referred to as “GX” followed by a number. Respondent’s exhibits will be
referred to as “RX” followed by a number. Cites to the transcript will be
labeled “Tr.” followed by the page number(s).

[2] During his
employment with Drummond, Wilkosz testified that he experienced a belt fire and
the limitations of sight to which he testified. Tr. 31-33.

[3] This is another
term for a refuge alternative. Tr. 69.

[4] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390