Secretary of Labor v. Lhoist North America of Virginia, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

After its regular blasting rig failed, Lhoist directed miners to convert a Ford pickup into a temporary rig for transporting and loading ANFO explosive material. Judge Priscilla M. Rae upheld five violations involving unsafe access to the ANFO tank, missing pressure-relief and pressure-indicating devices, an inadequately secured tank, a missing second fire extinguisher, and missing explosive-material warning signs. She found that management knowingly put the makeshift rig into service for multiple shifts despite obvious hazards and miners' safety concerns. All five violations were significant and substantial, involved high negligence and unwarrantable failure, and exposed miners to falls, tank rupture, fire, or other serious harm. The judge assessed penalties totaling $44,040.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.11001, 57.13011, 57.14100(b), 57.6202(a)(4), and 57.6202(a)(5)
• Outcome: One citation and four orders were affirmed as issued, with total penalties of $44,040.
• Key point: Production needs did not excuse placing a makeshift explosives vehicle into service without basic access, pressure-control, securement, firefighting, and warning protections.

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: 202-434-9958/ FAX: 202-434-9949

September 4, 2014

SECRETARY OF LABOR

MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Petitioner

v.

LHOIST NORTH AMERICA OF VIRGINIA, INC.,

Respondent

)���������� CIVIL PENALTY
PROCEEDING

)

)���������� Docket No. VA 2013-169-M

)���������� A.C. No. 44-00082-309415

)

)���������� Docket No. VA 2013-191-M

)���������� A.C. No.
44-00082-312088

)

)���������� Mine: KIMBALLTON PLANT #1

)

DECISION AND ORDER

Appearances:������������������������ Willow E. Fort, Esq., U.S. Department of Labor, Office of the Solicitor,
Nashville, TN for the Petitioner

Charles H. Morgan, Alston & Bird, LLP, Atlanta, GA for the Respondent

Before:����������������������� Judge Rae

This case is before me upon petitions
for assessment of civil penalties
under section 105(d) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. �815(d).

A hearing was held in Blacksburg, VA. The
parties submitted post-hearing briefs which have been considered.������������������� The docket consists of one citation
and four orders that arose out of a
two-day inspection made by Mine Safety and Health Administration ("MSHA") inspector Billy Joe Ratliff which commenced on October 10, 20I2.
For the reasons set forth below, I find the Secretary has met his burden of proof on all cited violations as issued.

FACTUAL BACKGROUND

The parties stipulated that: I) Lhoist was the operator of the Kimballton Plant #I, Mine ID No. 44-00082;
2) The Kimballton Plant #I is a "mine"
as that term is defined
in Section 3(h) of the Federal Mine Safety
and Health Act ("Mine Act"
or "Act"), 30 U.S.C. � 802(h); 3) The
products of the mine entered
commerce, or the operations or products thereof
affected

1 
Billy Joe Ratliff has been a certified mine inspector for nine years. He
is also a trained accident investigator and spent five years in law enforcement on several police
and sheriff's departments. He also has nine years of mining experience including working with explosives.
Tr. 12-17. �He had been inspecting the Kimballton mine since 2005. Tr.
21.

commerce, within
the meaning and scope of Section 4 of the Act, 30 U.S.C. � 803; 4) Lhoist is an "operator" as defined in Section 3(d) of the Act, 30 U.S.C. � 802(d); 5) Lhoist's operations and this mine are subject
to the jurisdiction of the Act; 6) The hearing
of these dockets
is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated Administrative Law Judges pursuant
to Sections 105 and 113 of the Act; 7) Inspector Ratliff
was acting in his official capacity
and as an authorized representative of the Secretary when he issued the citation and orders; 8) True copies of the citation
and orders were served on Lhoist as required by the Mine Act; 9) The total proposed penalty
for the dockets herein will not affect Lhoist's ability to continue in business; 10) The Proposed Assessment
(Form 1000-179

(MSHA)) contained
in Exhibit A attached to the petition
accurately sets forth the size of

respondent in production tons or hours worked per year, the size of respondent of the mine at
which the violations were issued,
the total number
of assessed violations in the preceding
24 month period, and the total number
of production days for the preceding 24 month period;
11) The Secretary's copies of the citation and orders are authentic; 12) The Secretary's exhibits are authentic copies;
13) Respondent's copies
of the citation and orders
are authentic; and, 14)
Respondent's exhibits are authentic. Joint Ex. 1.

The Kimballton mine is the deepest underground limestone mine in the country
and has been in operation since 1947. Some areas
of the mine are 2300 feet
deep and the individual
tunnels range between 100 and 125 feet
tall. Tr. 188-9.
The entries are approximately
45 feet wide and 35 feet in height.
The limestone is mined by explosives. The normal blasting cycle begins with loading the blasting rig with ANFO,
which is a solid explosive agent consisting of essentially fertilizer and diesel
fuel. The rig pulls up under the bulk tank and the ANFO is released into a large steel tank which is also known as the ANFO pot located at the rear of the rig.
The blasting rig is then driven to the face that is to be blasted where the ANFO is
pumped through a hose from the pot
using compressed air into the holes drilled
into the face of the stone.
The rig is equipped with a boom and a basket which raises the miner up to feed the ANFO into
the holes drilled on the upper part of the face. Tr. 43. The rig then moves on to the next face to
be loaded for blasting. Once the shot is made, the loose material
is then loaded onto haul trucks and brought to an underground crusher.
It is then transported by conveyor up the slope
and out to an exterior storage area. Tr. 29. At the completion of the cycle, the rig is then brought to a wash-down area for cleaning. The mine operates
in two shifts; the evening shift is responsible for drilling
and blasting the face in order to provide ample time for dust and gases raised during
the blasting to settle before
mining continues on the day shift. Tr. 27-35. Typically, this mine uses a Getman
blasting rig on which the ANFO pot is welded and bolted on the rear of the
vehicle. Tr. 50, 177, 182. At the time these violations
were found, the mine was using a
different vehicle as a blasting
rig.

In response to an anonymous hazard complaint, MSHA Inspector Billy Joe Ratliff
went

to the Kimballton mine. He did not
find any hazards as a result of the complaint; however, while there, he requested a meeting with all miners in the underground I 0 East lunchroom to discuss
another issue. A rank-and-file miner told Ratliff
to take a look at the truck being used as a blasting rig which was parked directly outside.
Tr. 169. What Ratliff found
was a Ford F-250 pickup truck that had an ANFO pot rigged in the bed
with a compressor hitched behind the truck.
Tr. 41-2. He learned upon further investigation that on October
4th the transmission on the Getman blasting rig had given out. Management directed
the employees on Monday, October

8th to rig the pickup as a blasting rig. This was accomplished by placing an ANFO pot that had

been taken off an old Volvo blasting
rig directly behind
the cab of the truck and tying a series of
climbing ropes, straps, and ratchets
around the pot. Tr.
52, 105, 108-12. The pot was a large
cylindrical tank positioned in an upright
manner with the top extending
several feet above the
roof of the truck. Ex. S-3 p.3 Photo.

Because the pickup truck was significantly smaller
than the Getman rig the manner in which
it was used in the blasting sequence
was very different from the norm.
It was too small to pull
under the bulk tank to
load the ANFO into the pot.
Instead, the truck was being driven to the face that was to be blasted where it was met by a flatbed truck carrying 50 pound bags of
ANFO. Tr. 48, 74. The ANFO bags were handed
off from one miner standing
on the flatbed truck to a miner standing
on the rear of the pickup truck and then the miner lifted the bags
overhead and poured the ANFO by hand into the pot through
a funnel located at the top of the

tank. Tr. 48, 63, 74-6. In order to access the funnel, the miners were standing on the side rails of the
pickup truck's bed or on the roof of the truck. Tr. 64. The truck was used
in this fashion on the night of October 8th. The next
morning a miner put in a work
ticket for a safe way to load

the pot because the tank was too tall and the bags had to be lifted
overhead. Tr. 201; Ex. R-5. Mine
Manager Luxbacher2 called down to the repair shop to ensure
this work order was being fulfilled and a small platform was placed in the truck bed before it was used again on the night of

the 9th. Id The miners informed Ratliff,
however, that they continued to stand on the rails and roof of the truck because the platform, or step, would shift and slide under their feet. Tr. 64.
They also stood on the side of the truck when the ANFO bags were being transferred from the flatbed to the pickup
truck because they could
not reach out far enough from the platform. Tr. 74.

Based upon his observations of the pickup
truck and the conversations with the miners, Ratliff issued one citation
and five orders
discussed herein.

LEGAL PRINCIPLES

Significant and Substantial/Gravity

A significant and substantial ("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). A violation is properly designated S&S "if, based
upon the particular facts surrounding the 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'/ Gypsum Co.,
3 FMSHRC 822,
825 (Apr. 1981). As is well recognized, in order to establish the S&S nature
of a violation, the Secretary must prove: (1)
the underlying violation;

(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 will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC
1, 3-4 (Jan. 1984); see
also Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995);
Austin Power Co., Inc. v. Sec'y of Labor, 861
F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

2  
Luxbacher has been mine manager for five years and has been in the mining
industry for ten years. He is a graduate of Virginia Polytechnic Institute and State University with a degree
in mine engineering. Tr. 187-90.

It is the third element of the S&S criteria
that is the source of most controversies regarding S&S
fmdings. The element is established only if the Secretary proves "a reasonable likelihood the hazard contributed to will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S
determination must be based on the particular facts surrounding the violation and must be made in the context
of continued normal mining
operations. Texasgulf, Inc., 10 FMSHRC
1125 (Aug. 1985);
U.S. Steel, 7 FMSHRC at 1130.

The S&S nature
of a violation and the gravity of a violation are not synonymous. The Commission has pointed
out that the "focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury,
which is the focus of the S&S
inquiry, but rather on
the effect of the hazard
if it occurs." Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept.
1996).

Negligence/Unwarrantable
�Failure

Negligence is conduct
which falls below the standard
of care established under the Mine Act.
Under the Act an operator is held to a high standard of care and is
required to be on the alert for conditions and practices that may cause injuries and to take necessary precautions to prevent or correct them. 30 C.F.R. �
10.0(d). High negligence is defined as when "[t]he operator knew or should
have known of the violative
condition or practice, and there were no mitigating circumstances." 30 C.F.R. �
100.3 Table X.

In Lopke Quarries, Inc., 23 FMSHRC
705, 711 (July 2001), the Commission reiterated the law applicable to determining whether
a violation was the result
of an unwarrantable failure:

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30

U.S.C. � 814(d), and refers to more serious
conduct by an operator in connection
with a violation. In Emery Mining Corp., 9 FMSHRC
1997 (Dec. 1987),
the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure
is characterized by such conduct as "reckless disregard," "intentional misconduct,"
"indifference," or a "serious lack of reasonable care." Id
at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) ("R&P"); see
also [Buck

Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995)]
(approving Commission's unwarrantable
failure test).

Whether conduct is "aggravated" in
the context of unwarrantable failure is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation
has existed, the extent of the violative condition, whether the operator
has been placed on
notice that greater efforts are necessary for compliance, the operator's efforts
in abating the violative
condition, whether the violation is obvious or poses a high
degree of danger, and the operator's knowledge
of the existence of the violation.
See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ... ; Cyprus

Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998),
rev 'don other grounds,

195 F.3d 42 (D.C. Cir. 1999);
Midwest Material
Co., 19 FMSHRC
30, 34 (Jan.

1997); Mullins
& Sons Coal Co., 16 FMSHRC
192, 195 (Feb. 1994); Peabody

Coal
Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines,
Inc., 14

FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC
705,

709 (June 1988). 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.
Because supervisors are held
to a
high standard of care,
another important factor supporting an unwarrantable
failure determination is the involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203,225 (Mar. 1998).

It is not necessary to find that all factors
are relevant or deserving of equal weight
in order to determine that a violation
is unwarrantable. �/0 Coal, 31 FMSHRC 1346, 1351 (Dec. 2009); Eastern Associated
Coal Corp., 32 FMSHRC 1189 (Oct. 2010).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Citation No. 8639930

This safe access
Section 104(d)3 citation was written in accordance
with 30 C.F.R. � 57.11001 which requires that all working
places have a safe means of access provided and maintained. It was issued because
a safe means of access to load the ANFO pot on the Ford F- 250 pickup truck was not provided. The miners were using the roof, side rail or unsecured step without handrails to load the 50
pound bags of ANFO into the top of the tank. Ratliff
noted in his citation that the truck had
been used in this fashion since October 8, 2012 and that this was not
the first time the tank
had been used on the back
of the truck.

Ratliff assessed the gravity of the violation
as reasonably likely
to result in a fatal accident to one miner, S&S, and the result of high negligence.
He issued the citation as an
unwarrantable failure to comply with the standard
because Luxbacher was aware of the danger and
allowed the pickup truck to be put into service. Ex. S-1. The Secretary has proposed a specially assessed civil penalty
in the amount of $11,900.00.

In addition
to the previously stated facts, Ratliff considered several additional facts in
issuing this citation. As he testified,
the ANFO pot was loaded at the face where lighting was poor. Tr. 61-2. The bed of the truck had a plastic
liner which made the unbolted
step (or platform) shift easily when a miner stepped on it.
An employee told Ratliff because
of the way the platform was positioned in the truck bed, the miner on the truck would have one foot on the side
rail and one foot on the unsecured
shifting platform in order to reach for the bag of ANFO being passed to him from the flatbed truck. Tr.

75. When a miner
    was lifting bags overhead,
    this platform became an elevated
    working place. Neither a handrail nor fall protection was provided. Tr. 60, 72-3. Additionally, because ANFO contains
    diesel fuel, it can be slippery if spilled. There was residue in the bed of the truck apparently from spillage. Tr. 59-68. All of

3  Section 104(d) of the Mine Act states in relevant part, "If, upon any inspection of a coal or
other mine, an authorized representative of the Secretary finds that there has been a violation of

any mandatory health or safety
standard, and if he also finds that,
while the conditions created by

such violation do not cause imminent danger,
such violation is of such a nature as could significantly and substantially contribute to the cause and effect
of a coal or other mine safety or
health standard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory
health or safety
standards, he shall include such fmding
in any citation given to the operator
under this Act."

these factors led to the inspector's determination that the miners did not have safe access to the
ANFO pot creating a slip and fall hazard in violation of this standard.

Luxbacher testified
that he reviewed
the repair ticket
submitted by a miner
on the morning of October
9th requesting a safe means of accessing the pot. He called the repair shop to ensure the platform would be available on that night shift. Tr. 199-200. It is his position that

providing the platform made access to the pot safe at least as of the night of October 9th. Resp. 's Post-Hearing Br. He stated that he "believed" that the bags were only lifted to chest height
but he was not "positive" of that.
Tr. 221. He also testified that before Ratliff
arrived at the lunchroom and saw the truck, he (Luxbacher) climbed into the bed of the pickup truck to inspect
it for ANFO residue and cleaned ANFO pellets that had spilled
around the top of the pot.
Tr.

205. Luxbacher also confirmed that he was well aware that this F-250 pickup
     truck had been

used in the
same manner as a blasting
rig in the past and that he issued the order to the foreman to put the system back on the truck when the Getman rig was taken out of service.
Tr. 195.

I reject Lhoist's position that the violation
was abated with the installation of the platform. A reasonable person would
recognize that the miners still had to lift the bags overhead to load the pot which necessitated standing on an unsecured platform
and standing on the side rails and the roof of the truck. The violation has been established.

In Ratliff s opinion, this violation was S&S. The platform was not bolted or otherwise properly secured in the bed of the truck.
The bed liner was made of plastic which
caused the platform to slip under the weight of the miner's feet. ANFO was spilled creating
a slippery surface as well. The lighting was poor and the bags were heavy. There were straps, ropes,
hoses and other material
cluttering the area. A miner could easily
lose his balance,
slip, or trip when
stepping on this wobbly platform
or the roof or sides of the truck resulting
in a head injury from striking the comers of the truck or pieces of equipment
in and around it. Tr. 73. Breaks,
bruises and sprains were also reasonably likely consequences of a fall. Tr. 74.

An
inspector's opinion of an S&S violation is entitled
to substantial weight. Cumberland
Coal Co., 20 FMSHRC 1275, 1278-79
(Dec. 1998); Buck
Creek Coal, Inc. v. FMSHRC,
52 F.3d

133, 135 (7th Cir. 1995).
Based upon the circumstances present
here, I find the inspector to be credible and his opinion is supported by the evidence. I find this violation to be S&S.

The gravity of this violation
is very serious. The hazard created by management put the
miner filling the ANFO pot at a substantially likely risk of a fatal injury.

The inspector marked
the negligence involved
in this violation as high because
management directed the miners to rig up the pickup truck in this manner. It had been done before in the same way.
This was confirmed by Luxbacher at trial. Tr. 195. Blaster Darrell Haymore testified that he had been the one to rig it in this manner on October 8th and knew how
to do it because he had done it the same way before.
Tr. 173. Miners Gregory
Parcell and Melvin Whitaker
also confirmed that it had been in service in this condition
during two night shifts before Ratliff issued
the violations and it was taken out of service. Tr. 176, 180.

I do not fmd the installation of the platform
a mitigating factor for the reasons set forth
above. High negligence is appropriate.

The Secretary has assessed this violation as unwarrantable failure.
Lhoist had notice that the
transmission on the Getman rig was
failing at least as early as October
4th and took no action

to procure a rental from any source. Ex. R-4. Indeed, Luxbacher testified
that he made no efforts to do so prior to the citation
being issued to Lhoist.
Tr. 219-20. There were numerous
cords, ropes and other items coupled with spillage of ANFO in the bed of the truck which posed
an obvious slip and trip hazard that had been uncorrected.
In fact, the truck had been used in the same
manner in the past and was ordered
by Luxbacher to be put back in service without
any modifications. �Additionally, this was the seventh unsafe access violation
issued at this mine
putting Lhoist on notice that greater compliance efforts were necessary. Tr. 84.

Lhoist admits that safe access "may have been lacking" on the night
of October 8th but
having been made aware of the issue on the morning of the 9th it took prompt action to install the step, or platform,
after a miner had requested a safe means of access. This prompt response does not rise to the level of aggravated
conduct in its opinion.
Resp. 's Br. at 9. Alternatively, it argues that if access to the pot remained
unsafe thereafter, Luxbacher was unaware of it and the
violation was not obvious. There were no further
complaints from the miners and he used it
himself and did not notice any problems
with it. Tr. 207; Resp. 'sBr. at 10.
I find this argument
troubling. Management is held to a higher standard
of care than the rank-and-file miner. It should not wait for a miner to make a safety complaint
or to be injured before
it becomes aware of
a hazard such as this. Management should be ever vigilant for such hazards
and be proactive in eliminating them. It
would have been obvious to even a lay person that the manner in which
the ANFO pot was set up on this truck posed a serious risk of injury. The pot was filled through
a funnel or cone located
at the top which was positioned several feet above the roof of the truck.

Ex. S-9 p.8 photograph. �It was readily
apparent that in order for the miners
to pour the 50 pound bags of ANFO into the pot they would have to climb on the side and/or roof of the truck to do so. The
truck was employed
throughout the night
shift of October 8th in this condition. Luxbacher was also aware that it had been rigged
the same way in the past and he should not have waited
until a miner came forward
to complain about the unsafe manner in which they were working.

Ronald Munsey4 was the night shift foreman at the time of this inspection. It was his responsibility to direct the location of the
shots, check readings, and supervise the men. Tr. 88.
He should also have been aware of the manner in which
the miners were accessing the pot.

Despite Luxbacher' s claims that he was unaware that the step failed to eliminate the safe
access violation, he admitted that on October
1Oth, he climbed
aboard the pickup truck, inspected the cone, or funnel,
at the top of the pot and cleaned spilled
ANFO material from it.
He therefore had to have been aware that the platform
was not bolted or otherwise
properly secured to the bed of the truck allowing it to move underfoot.
He also would have to have noticed
that the platform did not alleviate the miners' need to reach overhead and lean forward
to access the funnel.
See photograph at Ex. S-3 p.3. In fact, on cross-examination he as much as admitted
this fact. Tr.

221. Further,
     he was aware, or should
     have been, that the bags of ANFO were
     being brought to the
     face on a flatbed truck and were being handed across the back of the flatbed
     to the miner on the pickup.
     As the miners interviewed by Ratliff described it, this would require the miner
     loading the pot to perform a balancing act with one foot on the unsecured step and one on the side
     of the truck to transfer the bags from the
     flatbed to the pickup truck.
     They told Ratliff
     that the platform would wobble and shift as they performed this maneuver. Clearly
     they were still concerned for their safety
     as one miner suggested to Ratliff that he take a look at the truck while it
     was parked by the lunchroom. Tr. 169. The night
     foreman would have been present during

4 
Munsey was deceased at the time of this hearing.

the blasting
cycle and would certainly have been aware that the platform was not providing
them with safe access
to the pot. Tr. 87-8.
Luxbacher's claim that management was unaware of the

violation and that it was not obvious after the platform
was installed is not credible.5

Placing the platform
in the bed of the truck
did not make access to the pot safe. It also
was not a reasonable attempt
to abate the violation. Having been made aware that the miners were concerned for their
safety in loading
the ANFO pot, it would have been prudent and reasonable for Luxbacher or the night
foreman to have inspected the step
on the 9th to insure it
was properly installed and secured
before the truck was used on the second night. It also would

have been reasonable for management to contact one of the companies that leased blasting
rigs to

obtain another until the Getman was repaired. Ratliff testified that he contacted Austin
Powder and Orica and was told a rig with a driver could be rented which would have been a safer option
than rigging the ANFO pot on the back of a pickup
truck. Tr. 57. Another way to have abated
the violation would have been to cease blasting until the repairs
could have been made to the
Getman rig. In any event, putting an unsecured
step that wobbled
and shifted underfoot
in the back of the pickup truck that did not alleviate the need to lift heavy bags overhead
and climb on the side or roof of the pickup
truck cannot be considered a reasonable step to abate the violation.

The combination of factors that made this violation obvious
also posed a high degree
of danger to the miners. In the event
a miner should trip on the many obstacles located on and around the tank or slip on the roof or side rails of the truck or lose his balance when stepping on the
platform that wobbled and shifted underfoot, there was a very high degree of probability that a serious injury
would result. As the inspector
testified, there were sharp corners
and hard objects in the area such as a toolbox,
the tow hitch, the platform
itself, and the ground below that
could cause fatal head injuries or other serious
injuries.

The violation did not exist
for a brief period of time as suggested
by the Respondent. This was the second time management had put this make-shift rig into service.
It had been used this
second time on the night of
October 8th and 9th
in this violative condition. It would have been
used again on the 1Oth and for an untold number of nights thereafter had it not been for
Ratliff's intervention. Taking into consideration that this was the second time it was used in this manner without the danger
being recognized or remedied coupled
with the very short time in
which it would take for a miner to lose his balance
and fall suffering a serious or fatal injury,
the

amount of time miners
were exposed to the violative condition was excessive. Furthermore, in a

situation where the violation existed
for a relatively brief period of time, the high degree of danger
posed by the hazardous condition
and its obvious
nature may still lead to an unwarrantable failure determination. This is especially so when management is involved in creating the danger. SecyofLabor v. Midwest
Material Co., 19 FMSHRC 30 (Jan. 1997);
Capitol Cement
Corp., 21 FMSHRC
883 (Aug. 1999).

5 In assessing Luxbacher' s credibility, I have also considered the fact that at the time of this
hearing a Section 110(c) investigation was pending which
could result in subjecting him as an individual to civil penalties
for knowingly authorizing, ordering, or carrying
out a violation under the Mine Act.

The inspector
noted on his citation that Lhoist had received seven prior safe access
violations, which I deem sufficient to have put them on notice that greater efforts
at compliance with this standard were necessary.

For all of the above reasons,
I find that this violation
is an unwarrantable failure to comply with the safe access standard.

Order No. 8639931

This Section
104(d) order was issued in violation of30 C.F.R. � 57.13011 which requires
all air receiver tanks be equipped with one or more automatic pressure-relief valves and indicating pressure gauges which accurately measure
the air pressure in the tank. This ANFO
tank had neither gauge on it although
it did when it was on the Volvo rig.

The inspector assessed
the gravity as reasonably likely to result in a fatal accident, S&S, affecting two miners
with high negligence. Ex. S-4. The Secretary has proposed a civil penalty in the amount of$4440.00.

Lhoist admits to the violation and contests only the unwarrantable failure designation.

Ratliff testified that the compressor hitched behind the truck sends air into the ANFO pot
where it pushes the explosive
agent through the tank into the hoses and delivers
it to the drilled blast holes. The relief gauge and the indicating gauge are both designed to prevent the receiving
tank from rupturing in the event of over pressurization. �The former off gasses excess pressure
while the latter provides an accurate reading
of the amount of pressurized air in the tank. Ratliff was told by a miner that he had asked Luxbacher when transferring the tank from the old Volvo
rig to the pickup whether
the "pop-off" valve was needed. �Luxbacher responded in the negative. Tr. 97. Luxbacher denies any recollection of this. Tr. 208. The
tank was equipped
with these two gauges when it was on the Volvo rig but they were removed and based upon Luxbacher' s direction, were not put back on. Tr.
97, 103.

The compressor itself is equipped with a regulator which shuts the compressor down when
it gets up to a certain pressure. It is also equipped
with a one-way back pressure relief valve which would prevent
any pressure that exceeds the capacity of the compressor from over pressurizing it. Neither protects
the ANFO pot from being over pressurized. Tr. 99. The ANFO tank was re-plumbed and reconfigured with different fittings
and hoses when it was installed
on the pickup. As a result,
there would be no way to know what its maximum pressure
capacity was. A recertification and rating would be needed to make this determination. Tr. 100-2. Striking the proper balance between the two components
was now left up to chance. I find under continued normal mining operations, an over pressurization and rupture of the tank was
reasonably likely to occur. Should
the tank rupture,
it could impale
someone or the compression
could cause a miner to fall and strike
his head or other body part against
hard objects in the
immediate vicinity causing a fatal or serious injury.
Tr. 95-6.

I find the evidence
is sufficient to satisfy the Mathies criteria.

The gravity of this violation is very serious,
affecting two miners.

Negligence/Unwarrantable �Failure

Lhoist contests the unwarrantable failure
assessment, addressing three points. First, Luxbacher testified that he did not consider the ANFO pot an air receiver tank. He did not know or
have reason to know that the tank did not have the gauges or that they were needed.

Secondly, the tank was in service
for just two days before
it was removed from service.
Lastly, the Secretary did not meet his burden
of proving the elements of an unwarrantable failure. The inspector offered
no testimony regarding
his reasons for designating this violation as unwarrantable.

The Secretary argues
that although the inspector determined that the operator
acted with high negligence, the evidence as a whole supports a finding of a complete
disregard for the safety of the miners. Sec y 's Br. n.6. In fact, the inspector
stated that he felt the negligence
was high because the operator was aware of the missing
gauges when a miner asked Luxbacher if the

pop-off gauge was needed. It was an unreasonable belief
on the part of Luxbacher
that it was not.
Tr. 103. I find no mitigating factors present to reduce the high negligence.

With respect to unwarrantable failure,
I find the operator knew or should have known that
the ANFO tank was an air tank and that the violation
existed. Luxbacher has his mine
engineering degree from Virginia Polytechnic Institute and State University.
�As an engineer, it should come as no surprise to him that a tank that receives
air from a compressor is an air receiver subject to this mandatory standard. Additionally, as a mine manager, he is responsible for complying with the mandatory standards of the Act. Section 57.13015 requires that all air receivers be inspected by a qualified
inspector with records
kept available for the Secretary. The ANFO pot, whether mounted
on the pickup truck or on the other blasting
rig, would be subject to this
inspection and record
keeping requirement. The mine manager is charged with having
knowledge of this provision and complying with it.
This requirement, coupled
with the fact that
the pot had these gauges on it before it was removed
from the Volvo rig, confirms
that Luxbacher, at the very least,
should have known this piece of equipment
was an air receiver requiring the two gauges. His claim that it just didn't
occur to him detracts greatly
from his credibility. �On the other hand, Ratliffs
testimony is credible
and establishes that management
was aware of this violation. I also find that in addition
to being known to management this violation was knowingly authorized by management.

The danger posed by not having the pressure relief
valve in particular is obvious. It is common
knowledge that a contained tank that receives
pressurized air, water or gas is subject
to explosion if it becomes pressurized beyond its tolerance
level. Safety measures are critical to prevent
this from occurring. The relief valve performs
this function. The indicator
gauge would normally also contribute a measure of safety by providing a visual reading
of the pressure in the tank. In this case, however, the tank was reconfigured so that there was no way to determine its safe working pressure. Knowing how much pressure was in it would not, by itself, provide
sufficient warning of its being over-pressurized,
making this violation additionally aggravated. The danger posed by a tank of this size blowing
apart requires little elaboration.
Ex. S-9 p.l-12. The miner loading
the tank would be standing within inches of it during the blasting
cycle.

The absence of the gauges was also obvious.
Because the two gauges were an
integral and critical component of the tank their absence
would be readily apparent
to one using or

inspecting the tank. Their absence certainly became apparent to management when a miner asked management whether the pop-offvalve should be put back on.

The violation
existed for two night shifts before Ratliff
interceded and this rig was taken
out of service. An explosion of an over-pressurized tank can happen in an instant.
Using this rig for one shift was excessive; two was unfathomable. �Had Ratliff not interceded, there is no doubt
it would have been used until the transmission work on the Getman rig was completed. I find the violation, under the specific
circumstances of this case, was extensive and existed for an
unreasonably long period of time without any action taken to abate the violation.

Absent in the record is any evidence
of mitigation by the Respondent. The unwarrantable failure is appropriate.

Order Number 8639932

30 C.F.R. Section
57.14100(b) states "defects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation
of a
hazard to persons." This order was written because the inspector
found that the ANFO tank was not properly secured to the truck creating
a hazard to persons. Specifically, he recorded that climbing straps, rope, and a ratchet
strap were wrapped
around the top of the tank and had
become loose. There was also a loose fitting at the top of the tank through which 120 psi of air
was being pushed.

The violation was marked as reasonably likely to result
in a permanently disabling injury to one person, S&S,
and the result of high negligence. Ratliff also found it to be an
unwarrantable failure on the part ofLuxbacher.
This standard had been cited six times in the preceding two years. Ex. S-7. The Secretary proposes
a penalty in the amount of$16,400.00.

The tank was not welded or bolted to the bed of the truck in the usual fashion as confirmed by Lhoist' s witnesses.
Tr. 177, 182. It was held in place by a series
of climbing ropes, regular
rope and tightening ratchets. The ends of the ropes
were secured with some fashion of knots which Ratliff described
as "granny knots" similarly used to tie shoe laces. One end
of the rope was attached
to a tool box in the bed of the truck. Tr. 112. The ratchet was wrapped around the top of the tank and hooked into itself. Tr. 105-16; Ex. S-3 and Ex. S-9, photographs. The straps and ropes
were loose and the tank moved easily as did the fittings supplying the pressurized air to the tank, according to Ratliff. The straps
and ropes were soaked
in ANFO which could decrease their load bearing capacity and no one Ratliff
spoke at the scene
was able to tell him the load rating for the straps and ropes
which was of concern to him as well.
Tr. 107, 118. The truck is driven
inside the mine creating a danger
of the tank falling out of the truck during transportation injuring
persons in the area, in Ratliff's opinion.
Tr. 118-19.

Ratliff reached the conclusion that the condition created a defective piece of equipment which posed a danger
to miners in the event it fell off the truck while moving or tipped while a
miner was leaning against it. Ratliff was aware that the truck had been used
in this manner on the night of
the 8th and 9th and was ready to be used again on the 1Oth had he not interceded.
Miners Darrell Haymore,
Gregory Parcell, Melvin Whitaker, Jr., and Steven
Chandler, all Lhoist witnesses, confirmed this information. Tr. 172-4; 176-8; 180-2; 185.

Lhoist argues that a
violation has not been proven. It claims that Ratliff's
basis for concluding defects existed
was purely speculative because he was not aware of the load rating

for the climbing straps or whether they would deteriorate or weaken when exposed to ANFO.
He also could not properly
identify the type of knot used on the ropes. Resp. 's Br. at 12-13. Luxbacher testified that the McMaster-Carr chart lists nylon as resistant
to oil and grease and therefore these ropes were capable of holding the tank in place.
He admitted on cross� examination that the information given on that website does not say the rope is resistant
to ANFO. In fact, the McMaster-Carr chart Luxbacher referred
to states that fibrous nylon rope
material is resistant to rot and mildew;
it says nothing about oil and grease. It also states that all
nylon ropes can stretch and lose strength when wet. See
www. Mcmaster. com.fibrous rope

material. Luxbacher described
the knots Ratliff
called "granny knots" as "water knots" which as

a former climber he knows are strong climbing
knots. Tr. 212. The water knot, however,
is designed to join two pieces of rope together, not to loop around an object and tie back onto itself as
was done here. It
is also known to slip requiring inspection before each use. In climbing, it is
known as the death knot for its fallibility. See www. Wikipedia.com. water knots. Luxbacher
further admitted that he did not know if the ropes used on the pot were used or new.
Tr. 222-3. He was also not aware of their load rating.
Tr. 223.

It is not necessary to consult these
reference materials, however,
to determine that Ratliffs opinion was far more than speculative. The photographs introduced by the Secretary make clear to even a lay person, let alone someone
familiar with the mining industry
as Ratliff is, that
the ANFO pot was rigged up in a make-shift manner. The ropes and straps
were wrapped and looped in a haphazard fashion
through and around various
hoses, the framework
of the unsecured platform,
the tank and other objects in the truck bed. The ends of the ropes
were frayed and damaged.
Ex. S-9. Additionally, Ratliff observed first-hand that the ropes and straps were loose from use and the pot was able to be moved easily. Although
Luxbacher claimed he did not notice the tank was unstable when he cleaned
ANFO off it on the lOth, Steven
Chandler, Lhoist's witness, confirmed that the tank had tilted and had some movement.
Tr. 212, 185. Miners Gregory Parcell and Melvin Whitaker, Jr., testified that they felt bolting and welding the tank
was more secure than tying it with these straps and ropes.
Tr. 178, 182. I find Lhoist's argument unpersuasive.

Lhoist also argues that the truck was out of service when Ratliff observed
it and there was no evidence
that it would not have been corrected
prior to use. I find this argument also fails.
The truck was in the same condition
it had been in since management told Haymore and another
miner to rig it up on the 8th.
Tr. 172-4. The truck was rigged and ready for use on the 1Oth as
well. In fact, it was not until Ratliff
found the violations on the 1Oth that the afternoon shift foreman called Luxbacher to tell him they would need to take it out of service, as Luxbacher

testified..
Tr. 206. Based upon these facts, the truck was available
for use and was not out of service. A piece of equipment
can be inspected and cited as long as it is not tagged out and
parked for repairs. Alan Lee Good, an individual doing business as Good Construction, 23 FMSHRC 995, 997 (Sept. 2001). As long as a piece of equipment
is available for use, it must
comply with MSHA safety standards. Ideal Basic Indus., Cement
Div., 3 FMSHRC
843,844 (Apr. 1981).

Next, Respondent raises the notice
requirement. As noted above, this violation would have been apparent
to a lay person. The photographs depict a tower of a tank extending far above
the roof of the truck's
cab haphazardly looped and tied with frayed ropes and straps
tied to unsecured objects
in the bed of the truck.
It appears to be off balance without
being secured in all directions.
Lhoist states that each of its miners who appeared
as witnesses are competent and

experienced and each testified
that the tank did not pose a hazard. I recognize that these witnesses were well aware they were called to support the Respondent's position. �I also take notice of the fact that each of them on cross-examination admitted that they would have been
more comfortable with the tank being welded
and bolted to the bed as was done with the other rigs. I fmd this more telling than their assertions that it was safe.
It also bears repeating
that a miner told Ratliff to take a look at the truck when it was parked outside the lunchroom.
Clearly, the miners had concerns for their safety. The standard to be applied here, as Respondent notes, is whether a reasonably prudent
person familiar with the mining
industry would have recognized
that the manner in which this tank that was loose and tilting was tied up posed a hazard and

would have removed it from service. La Farge North America,
35
FMSHRC 3497 (Dec. 2013).

The answer to that is resoundingly, yes.

S&S

I find this violation was properly marked as S&S. The tank had become
visibly loose and tilted
after it was used on two shifts. The truck was used throughout each night shift driving to and from the faces and the wash down station. Miners leaned up against
it and climbed all around it to pour the ANFO into the top of the pot to ready the shots. Under continued normal mining operations, had it not been for Ratliff s interception, the straps and ropes would have
continued to loosen and deteriorate. It was reasonably
likely that it would either fall during transportation or fall or tilt when leaned up against or bumped into by a miner filling
the pot.

This is in turn would cause a miner to be struck or pushed off balance causing serious injuries

such as head injuries,
broken bones, sprains, and cuts.

The gravity is serious and would cause injury to at least one miner. Negligence/Unwarrantable �Failure

The violation was created by management when Luxbacher ordered
the pickup truck to
be rigged in the same manner in which it had been in the past.
He supplied the straps that were

used but did not determine their load capacity
or ensure that only new ones were used.
It was not only apparent to Ratliff that they were loose allowing
the tank to move creating
an unsafe condition. Lhoist's witnesses
were well aware that the tank was tilting and was not secured in place. Management did nothing to ameliorate or mitigate the hazard.
It acted with high negligence.

In addition to management creating
this obvious and very dangerous
hazard to the miners, Lhoist had been cited seven previous times under this standard putting
them on notice that greater efforts
at compliance were necessary. It existed through
two night shifts and was to
be used on a third shift. In view of the fact that after two
shifts, the ropes and straps had already loosened allowing the tank to tilt and move easily,
the condition existed
for a significant period of time already. Nothing
was done in mitigation of this hazard before the order was issued.

Unwarrantable failure
is supported by the evidence. Order Number 869933

In relevant part, 30 C.F.R. � 57.6202(a)(4) requires
that all vehicles
containing explosive material have at least two dry-chemical fire extinguishers onboard.
This violation was charged
because there was one extinguisher located behind the rear seat in the cab of the truck.
The order

was written
as reasonably likely to result in permanently disabling injuries to one miner, S&S with high negligence, and an unwarrantable failure to comply.
Ex. S-10. The proposed penalty is $2,000.00.

The Respondent argues that this standard was not violated because the second extinguisher was located on the compressor trailer which was attached behind the truck.
It provides no legal basis for this
statement.

The language
of the standard speaks for itself. It requires
the vehicle containing the explosive material
have two extinguishers, not the vehicle
including any trailers
or other pieces of equipment that may be attached thereto. The purpose of the standard
is to provide two readily accessible extinguishers as a means of escape in the event
of a fire. Two are required to because
there are often two miners operating a blasting rig who may need to evacuate or suppress a fire.
The Safety Standards for Explosives at Metal and Nonmental Mines, 56 Fed. Reg. 2070, 2078
(Jan. 18, 1991). At hearing, Luxbacher
testified that he "would have thought
maybe they would have thrown a second in since they put
the ANFO pot on it. It wasn't something I thought to check for." Tr. 230. It is clear from Luxbacher's testimony
that he was aware of the requirements of this standard
but did not care enough
to ensure it was complied
with. This violation has been established.

S&S

The Respondent has presented no argument regarding the S&S designation of this violation. I find that the lack of the second fire extinguisher contributed to a discrete hazard
of the miners not being
able to suppress and escape a fire on or near this vehicle
carrying explosive material. Injuries
sustained in a fire would be at least permanently disabling. The event
of a fire is presumed in this instance. Consolidation Coal Co., 35
FMSHRC 2326 (Aug. 2013). The S&S
nature of the violation has been established.

The gravity is serious and could result in smoke inhalation and burns to the miner loading
the ANFO pot and the miner on
the flatbed truck delivering the ANFO at the face.

Negligence/Unwarrantable Failure

Luxembacher displayed a complete and reckless disregard
for the safety of the miners
exemplified by his statement that he didn't even think
to check the truck for the fire extinguishers. �Clearly,
his concern was not for the safety
of the miners but was focused on uninterrupted production of stone.
Respondent's claim that he was not aware
of the violation, that it existed
for a short period of time and that it was promptly
abated is not supported by the
credible evidence of record.
The importance of the fire extinguishers on a vehicle
containing blasting materials is critical.
Luxbacher ordered this truck to be jury rigged for blasting service. That he did not take it upon himself
to make an inspection of the
rig before it was used on
October 8th to ensure
it complied with all relevant
safety standards is inexcusable.
Monthly inspections for fire extinguishers are mandatory and he was aware that as of the last one this truck had only one onboard.
Tr. 225. The danger posed by a fire in the presence of explosive
materials is extremely high. Luxbacher stated that he found ANFO pellets in and around the pot when
it was parked outside the lunchroom which is an area where smoking allowed. Clearly,

Respondent was not enforcing
the need to keep the truck clean. There is no doubt that the truck
was still in service and was to be used in its present condition
again on the night of October lOth.

Lhoist
did nothing to abate this condition. Ratliff s issuance
of the violations is what caused the truck
to be taken out of service. Abatement
requires the operator take action to eliminate the hazard before the inspector discovers
the violation. Enlow
Fork Mining Co., 19 FMSHRC 5, 17 (Jan.
1997); Utah Power & Light Co., 11
FMSHRC 1926, 1933-34
(Oct. 1989).

Based upon a totality of the circumstances, I find that high negligence and unwarrantable failure to comply with the standard
are appropriate.

Order Number 8639934

The pickup truck lacked any warning signs that it contained explosive
material, in violation of 30 C.F.R. �
57.6202(a)(5), which requires
such warning signs to be visible from each
approach. The narrative portion of the violation includes the statement
that Luxbacher told

employees that the signs were not necessary.
The gravity is marked as reasonably likely to result in
permanently disabling injuries
to one miner, S&S and the result of high negligence and an
unwarrantable failure to comply.
Ex. S-13. The proposed penalty is $9,300.00.

The Respondent admits the violation
and I find the evidence
supports such a finding.
S&S

During the blasting
cycle, this truck was brought
to the face to load ANFO.
Once the holes drilled in the face were filled with ANFO, the truck would
be taken to the next face where it
would perform the same task. At
the end of the shift,
it would be taken to the 15 East sump area
where the residual
explosive material would be washed
out. Tr. 39-41. As noted above,
however, cleaning the truck properly
was not done and it was found to have ANFO pellets around the tank when it was parked by the 14 East lunchroom where miners are permitted to smoke. Tr. 137-8. In Ratliffs opinion,
there were sufficient ignition sources present from
cigarettes to pieces of machinery,
steel fittings and the tank which could produce a spark in the
presence of the ANFO. All of the elements
required for a fire were present.
Tr. 145. Without the placards
on the truck to identify
its contents as explosive, miners
would not be warned to keep
burning materials away from it. ANFO
is a lower class of explosive material
making an ignition more likely to result in a fire rather than an explosion. Tr. 144. Because of this Ratliff
opined that injuries to a miner would be burns. !d. Contributing
to the likelihood of such an
accident was the exposure presented
by having had this truck in service for three days.
Tr. 143.

I concur with Ratliff s opinion
that under continued normal mining conditions it was reasonably likely
given the presence
of fuel, air, and spark-producing items that a fire would occur and injuries sustained would be very serious if not fatal. The S&S assessment has been
established.

I find the gravity of this violation
to be serious. Negligence/Unwarrantable �Failure

I find this violation
was the result of high negligence and unwarrantable failure
for much

the same reasons as in the previous violations. Management directed
that the truck be rigged as a blasting rig performing the normal routine of carrying ANFO to the faces and then returning
to the sump area for cleanup.
Tr. 39-41. It had been in service
for two shifts when Ratliff interceded preventing it from being
used again on the next shift. Two shifts was far too long a time
considering the grave
danger posed by a fire fueled by explosive materials.

Luxbacher was fully aware that the blasting rig normally used for this task had reflective warning placards on all four sides.
He was asked by a miner if the placards should
be put on the pickup truck and he said it was not necessary. Tr. 148. He attempted to explain
at hearing that he believed
the ANFO would be
loaded on the truck at the face where it would be parked behind the
blast area sign. He later admitted, however,
that he was aware the truck would move from face to face with ANFO onboard
as well as to the cleanout area which would take it outside the blasting area. Tr. 225-6. He further
testified that he considered the miner's question
concerning the placards to be an "inquiry." He explained the difference between
an inquiry and a complaint as follows, "Maybe the attention I give the matter, maybe give it a little
more attention if it is a complaint." Tr. 225. I find his attempts to downplay
the degree of negligence he exhibited
underscores his reckless disregard for the miners' safety.

I fmd Luxbacher's assertions
that he was unaware that the platform
was unstable and unsecured, that the tank was an air receiver
necessitating a pressure
gauge and relief
valve, that the explosive
materials warning signs were necessary, that the truck lacked
a second fire extinguisher or that the straps
around the tank and
the tank itself were loose to be self-serving
and not credible. This is particularly egregious
coming from an individual with a mine engineering degree from Virginia
Tech, a leading institute of higher learning.
It is apparent that production was a far greater priority
than safety for the miners.
Management intentionally and knowingly violated each of the mandatory
standards herein exhibiting an unconscionable indifference and complete disregard
for its employees.

CIVIL PENALTIES

The Commission has reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763- 64 (Aug.
2012):

Section 11O(i) of the Mine Act grants the Commission the authority to assess all civil
penalties provided under the Act. 30
U .S.C. � 820(i). It further directs that the Commission, in determining penalty amounts, shall consider:

The operator's history
of previous violations, the appropriateness of such
penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect on the operator's ability to continue
in business, the gravity
of the violation, and the demonstrated good faith of the person charged in attempting to achieve rapid compliance after notification of a violation.

30 U.S.C. � 820(i).

The Commission and its ALJs are not bound by the penalties proposed by the Secretary nor are they governed
by MSHA' s Part 100 regulations, although substantial deviations from the proposed penalties must be explained
using the section
11O(i) criteria. See Sellersburg Stone Co., 5 FMSHRC 287,293 (Mar. 1983). In addition to considering the 110(i) criteria,
the judge must provide
a sufficient factual
basis upon which the Commission can perform its review
function. See Martin
Co. Coal Corp.,
28 FMSHRC 247 (May 2006).

The parties have stipulated that the proposed penalties
will not affect
the operator's ability to continue in business. They have also stipulated that MSHA Proposed
Assessment Form 1000-179 attached to the Secretary's Petition accurately reflects
the operator's size, total assessed violations for the 24 months preceding the month the citation
and orders herein
were

issued and the number of inspection
days for the same period. The gravity, negligence and unwarrantable failure to comply with the cited standards are stated within the analysis
of each of the violations above. I
have taken into account the deterrent effect
of civil penalties in comparison to the size of the operator
and its overall resources in making this decision.
See

Sec y v. Thunder Basin Coal Co., 19 FMSHRC 1495, 1505 (Sept.
1997).

Having considered the six statutory criteria, I assess
the following penalties: Citation No. 8639930 - $11,900.00

Order No. 8639931 -$4,440.00
Order No. 8639932- $16,400.00

Order No. 8639933 - $2,000.00 (This
is a single order in Docket No. VA 2013-169)
Order No. 8639934- $9,300.00

order.6

ORDER

Lhoist is ORDERED to pay a total penalty of$44,040 within 30 days of the date of this

/s/ Priscilla M. Rae

Priscilla M. Rae Administrative Law Judge

Distribution List:

Willow E. Fort, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Ste. 230, Nashville, TN 37219-5321

Charles H. Morgan,
Alston & Bird, LLP, One Atlantic Center, 1201 West Peachtree Street, Atlanta, GA 30309-3424

6 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.