Secretary of Labor v. GMS Mine Repair & Maintenance, Inc.

Plain-English summary

A GMS miner drove a manbus past a red block light and caused a head-on underground rail collision that seriously injured miners. GMS argued that the mine-specific safeguard could not be enforced against it because MSHA had issued written notice to the production operator, not separately to GMS, and because an earlier judge had ruled differently in another case. The judge held that the earlier ALJ ruling had no preclusive effect, that the safeguard validly set a compliance time, and that GMS had constructive notice through its mine training and contractual safety duties. She affirmed the S&S citation with moderate negligence and assessed a $9,979 penalty. The Commission later affirmed the safeguard's enforceability and the citation.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1403 and 75.1403-1(b)
• Outcome: The safeguard citation and its $9,979 penalty were affirmed.
• Subsequent review: The Commission affirmed this decision in va-2023-0021-commission.
• Key point: A contractor trained on a mine's block-light rules had constructive notice of a safeguard issued to the production operator.

Full text (FMSHRC public release)

FEDERA L MIN E SAFET Y AN D HEALT H REVIE W COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNS Y LVANIA AVENUE,
NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

SECRETAR Y O F LABOR                                   :                 CIVIL
PENALTY PROCEEDING

MIN E SAFET Y AN D
HEALTH                      :    

ADMINISTRATIO N
(MSHA),                         :                 Docket No. VA 2023-0021

Petitioner,                                     :                 A.C.
No. 44-04856-570503

:

:

v.                                                   :    

:

:          

GMS MINE REPAIR & MAINTENANCE,        :                  Mine:
Buchanan Mine #1

INC.,                                                                   :

Respondent  
                                  :                

SUMMARY DECISION

Before:                        Judge
Bulluck

This case is
before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”), on behalf of the Mine Safety and Health Administration (“MSHA”), against GMS Mine
Repair & Maintenance, Incorporated ("GMS"), an independent
contractor performing services at Buchanan Mine #1 (“Buchanan Mine”), pursuant
to section 105(d) of the
Federal Mine Safety and Health Act of 1977 ("Mine
Act"), 30 U.S.C. § 815(d).
The Secretary seeks a civil penalty in the amount of $9,979.00 for an alleged violation of a safeguard
requiring adherence to the block light signals controlling all rail mounted traffic
in Buchanan Mine.

The parties initiated this action by filing
cross-motions for summary decision on September 29, 2023. The Secretary filed a
Motion for Summary Decision (“Secretary’s Motion”); a Memorandum in Support of
Summary Decision (“Secretary’s Memorandum”), with attached Exhibits A and B; a
Response to GMS’s Motion and Memorandum in Support for Summary Decision (“Secretary’s
Response”); and Joint Stipulations of Undisputed Fact, with attached Exhibits A
through D.

GMS filed a Motion for Summary Decision (“GMS’s
Motion”); a Memorandum of Points and Authorities Supporting Respondent’s Motion
for Summary Decision (“GMS’s Memorandum”), with attached Exhibits A through D;
and a Response to Petitioner’s Motion for Summary Decision (“GMS’s Response”).

The cross-motions were denied for the reason that the
Joint Stipulations formed an insufficient basis upon which the undersigned
could resolve the issues at hand, and additional development of the record was
deemed necessary. Order Den. Cross-Mot. for Summ. Dec. at 2. Subsequently, the
hearing scheduled for March 5, 2024, was cancelled upon the parties refiling of
their Joint Stipulations, with attached Joint Exhibits 1 through 8, on February
23, 2024; and filing of their renewed cross-motions for summary decision, along
with Supplemental Joint Stipulations, with attached Joint Exhibit 9, on March 4,
2024.

I.               
Legal
Standard for Summary Decision

Pursuant to Commission Rule 67(b), “[a] motion
for summary decision shall be granted only if the entire record, including the pleadings, depositions, answers to
interrogatories, admissions and affidavits, shows:
(1) that there is no genuine issue as to any material fact; and (2) that the moving party is entitled to summary decision
as a matter of law.” 29 C.F.R.
§ . 2700.67.

It is well settled that summary decision is an extraordinary
measure and the Commission has analogized it to Rule 56 of the
Federal Rules of Civil
Procedure, which the Supreme Court
has construed to authorize summary judgment only “upon proper showings of the lack of a genuine, triable issue of material fact.” Hanson Aggs. New York, Inc.,
29 FMSHRC 4, 9 (Jan.
2007) (citations omitted). When considering a motion for summary decision, the Commission has noted that “the Supreme Court has stated that ‘we look
at the record on summary judgment in the light
most favorable to . . . the party
opposing the motion,’ and that ‘the inferences to be drawn
from the underlying facts contained in [the] materials [supporting the motion] must be viewed in the light most favorable to the party opposing the motion.’” Id. at 9 (quoting Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 473 (1962); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). Moreover, Commission Judges should not grant
motions for summary decision “unless
the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse
party cannot prevail under any circumstances.”
KenAmerican Res., Inc., 38 FMSHRC 1943, 1947 (Aug. 2016) (quoting Campbell
v. Hewitt, Coleman & Assocs.,
Inc., 21 F.3d 52, 55 (4th Cir. 1994)); see Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that there is no genuine issue for trial unless a
rational trier of fact could find for the nonmoving party).

Based on a thorough review of the documents filed by
the parties, I find that there is no genuine issue as to any material fact. For the reasons set forth
below, I conclude that the Secretary is entitled to summary decision as a matter of law, affirm
the Citation, and assess a
penalty against GMS.

II.            
Factual
Background

GMS is an independent
contractor performing services at Buchanan Mine, a large multi-unit underground
coal mine. Jt. Stips. 3, 4, 25. The mine contains approximately 80 rail mounted
vehicles that regularly travel on its underground haulage track system. Jt. Ex.

3. The rail traffic on this transportation system is controlled by a block
   light system that coordinates usage of tracks to prevent vehicular collisions. Jt.
   Stip. 12.

The underlying Safeguard
No. 8202825 was issued at Buchanan Mine to the then production-operator, Consolidation
Coal Company (“Consol”). Jt. Stips. 10, 11. By 2018, when GMS began performing
services in Buchanan Mine, control of the mine had been transferred to the
current production-operator, Buchanan Minerals, LLC (“Buchanan”). GMS Mem. at

2. The Safeguard requires that all rail mounted vehicle operators at the mine adhere
   to the block light signal procedures controlling traffic on the underground rail
   transportation system, and notes that previous failures to do so had resulted
   in head-on collisions and injuries to miners. Jt. Stips. 11, 12; Jt. Ex. 3.

On September 21, 2022, MSHA
Inspector John Hughes conducted a regular E01 inspection of Buchanan Mine. Jt.
Stip. 17. During his inspection, Hughes was informed by Buchanan’s
representative that an accident had occurred on August 15, in which a head-on
collision of two manbuses was caused by one vehicle operator’s failure to change
the block lights from green to red before continuing through an intersection. Jt.
Stip. 18; Jt. Ex. 1. Consequently, Hughes issued 104(a) Citation No. 8312039 to
GMS, alleging a “significant and substantial” violation of 30 C.F.R. § 75.1403,
under Safeguard No. 8202825, for an accident that had “occurred,” resulting in
“lost workdays or restricted duty” injuries, and was due to GMS’s “moderate”
negligence. Jt. Stips. 19, 21; Jt. Ex. 1. The “Condition or Practice” is
described as follows:

The block light system being used at this mine to
control the safe movement of rail equipment was not being followed at this mine
site on August 15, 2022. The failure to follow the block light system caused an
accident where two manbuses, transporting miners and going in opposite
directions collided head on along the trackway. The accident resulted in two
miners receiving serious injuries and lost time.

Jt. Stip. 20. Hughes
terminated the Citation the same day after GMS retrained the contract miner on
safe operation of manbuses and use of the block light system. Jt. Ex. 1.  

III.          
Statement
of Undisputed Facts

A.     Joint
Stipulations

1.         
Buchanan Minerals, LLC is the
production-operator of Buchanan Mine #1.

2.         
At all times relevant to these proceedings,
Buchanan Mine #1 is a “mine,” as defined in section 3(h) of the Mine Act, 30
U.S.C. § 802(h).

3.         
On August 15, 2022, Respondent GMS
was an independent contractor performing services at Buchanan Mine #1 and was,
therefore, an “operator” at that mine, as the term “operator” is defined in section
3(d) of the Mine Act, 30 U.S.C. § 802(d).

4.         
As an independent contractor,
while performing services at the Buchanan Mine #1, GMS is subject to the
jurisdiction of the Mine Act.

5.         
This proceeding 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
Mine Act.

6.         
Payment of the total proposed
penalty of $9,979.00 in this matter will not affect GMS’s ability to continue
in business.

7.         
The individual whose name appears
in Block 22 of the citation in contest was acting in an official capacity and
as an authorized representative of the Secretary when the citation was issued.

8.         
Citation No. 8312039 was issued
and served by an authorized representative of the Secretary to an agent of GMS
at the date, time, and place stated in the citation.

9.         
Exhibit “A” attached to the
Secretary’s Petition in Docket No. VA 2023-0021 contains an authentic copy of
Citation No. 8312039, with all modifications or abatements, if any.

10.         
On February 5, 2013, Consolidation
Coal Company was the production-operator of the Buchanan Mine #1.

11.         
On February 5, 2013, the Mine
Safety and Health Administration (“MSHA”) issued Safeguard No. 8202805 to
Consolidation Coal Company at the Buchanan Mine #1.

12.         
Safeguard No. 8202805 “require[s]
all rail mounted equipment at this mine site to follow the block light system
which has been installed to control the rail traffic and a clear right of way
along the track haulage system.”

13.         
Buchanan Minerals, LLC and GMS
entered into a labor services agreement on June 21, 2018, for GMS to provide
labor services at the Buchanan Mine #1.

14.         
The labor services agreement
between GMS and Buchanan Minerals contains provisions which contractually
obligate GMS to adhere to mandatory safety and health standards.

15.         
GMS provides site-specific safety
training and/or its annual refresher safety training to GMS personnel who
perform services at the Buchanan Mine #1 under the mine’s approved training
plan, and based upon materials provided by Buchanan Mine #1.

16.         
The site-specific safety training
provided by GMS under Buchanan Mine #1’s approved training plan includes a
block light system training, which does not specifically mention any safeguard,
but which may include training on conditions or practices covered by any
existing safeguard.

17.         
On September 21, 2022, MSHA
conducted a regular quarterly (E01) inspection of the Buchanan Mine #1.

18.         
During the September 2022
inspection, Buchanan Minerals representative, Rex Penn, described an August 15,
2022, accident to the MSHA inspector conducting the September inspection.

19.         
On September 21, 2022, MSHA issued
Citation No. 8312039, alleging that GMS violated a notice to provide safeguard,
Safeguard No. 8202805, which was issued February 5, 2013.

20.         
The Condition or Practice, as
described in Box 8 of Citation No. 8312039, is true and accurate and states: “The
block light system being used at this mine to control the safe movement of rail
equipment was not being followed at this mine site on August 15, 2022. The
failure to follow the block light system caused an accident where two manbuses,
transporting miners and going in opposite directions collided head on along the
trackway. The accident resulted in two miners receiving serious injuries and
lost time.”

21.         
Citation No. 8312039 was properly
evaluated as having occurred, lost workdays or restricted duty, moderate
negligence, and significant and substantial.

22.         
On August 15, 2022, the “miner who
failed to follow the block system” who is referenced in Box 17, the Action to
Terminate Citation No. 8312039, was a miner employed by GMS.

23.         
The parties stipulate that, if
Safeguard No. 8202805 is both (1) valid and (2) enforceable against GMS, then
the circumstances underlying Citation No. 8312039 constitute a violation of
Safeguard No. 8202805.

24.         
Prior to the September 21, 2022,
issuance of Citation No. 8312039, neither MSHA nor any authorized
representative of the Secretary provided GMS with a written or electronic copy
of Safeguard No. 8202805, or advised GMS verbally of Safeguard No. 8202805.

25.         
In the previous calendar year, GMS
worked over 1,000,000 total hours across all mines, and is a large operator.

26.         
GMS’s history of previous
violations reflects 16 total violations at all mines that were paid, finally
adjudicated, or became final orders of the Commission in the 15 months preceding
the day before the issuance of Citation No. 8312039.

27.         
The documents included in the
Joint Exhibits submitted by the parties are true and authentic copies of the
documents they purport to depict.

28.         
The documents included in the
Joint Exhibits submitted by the parties are admissible as evidence.

Jt.
Stips. at 1-3.

B.        
Supplemental Joint
Stipulations

1.         
The “miner who failed to follow
the block light system” referenced in Citation No. 8312039, completed
site-specific experienced miner training through GMS on October 20, 2021, at
which time he began working at Buchanan Mine #1.

2.         
That site-specific experienced
miner training, conducted by GMS with materials provided by Buchanan Mine #1,
included a block light system training, but did not specifically reference
Safeguard No. 8202805 or any other safeguard.

3.         
Because annual refresher safety
training occurs at Buchanan Mine #1 every October, the “miner who failed to
follow the block light system” did not participate in annual refresher safety
training before the August 15, 2022, accident.

4.         
The site-specific experienced
miner training was the last time the “miner who failed to follow the block
light system” received block light system training before the August 15, 2022,
accident.       

5.         
The Supplemental Joint Exhibit
submitted by the parties is a true and authentic copy of the document it purports
to depict.

6.         
The Supplemental Joint Exhibit
submitted by the parties is admissible as evidence.

Suppl.
Jt. Stips. at 1.

IV.          
Findings
of Fact and Conclusions of Law

The Secretary maintains that she is entitled to
summary decision because safeguards issued at a mine are binding upon
contractors, that Safeguard No. 8202805 is valid and enforceable, and that GMS
violated the Safeguard when its employee, operating a vehicle on the track haulage
system, failed to change the block lights and collided with another vehicle. Sec’y
Mem. at 5, 7-8. Additionally, in her Response, the Secretary contends that
collateral estoppel does not apply to this matter because the case upon which
GMS relies is distinguishable upon several grounds, and a decision of an
administrative law judge is not binding upon other judges. Sec’y Resp. at 1-3; see
GMS Mine Repair & Maint., Inc ., 42 FMSHRC 135 (Feb. 2020) (ALJ) (“ GMS
I ”).

GMS contends that collateral estoppel precludes
relitigating the issues already adjudicated in GMS I , that Safeguard No.
8202805 is invalid because it fails to fix a time for compliance, and that it
is unenforceable against GMS because the independent contractor was never
served written notice of the Safeguard by MSHA. GMS Mem. at 1.

A.    
Collateral
Estoppel

According to GMS, relying
upon the outcome in GMS I , the collateral estoppel doctrine precludes re-adjudicating
the two issues raised in this case: first, the validity of the Safeguard where it
does not fix a time for compliance and, second, the enforceability of the Safeguard
where MSHA has not served a written copy upon the independent contractor. GMS
Mem. at 1. The Secretary, on the other hand, rejects the application of the
doctrine because there are significant factual differences between the two
cases, and the decision in GMS I was based upon multiple grounds, some
of which are beyond the inquiry in the instant matter. Sec’y Resp. at 1-2.

Although administrative
law judge decisions are not binding precedent, the Commission has recognized that
the collateral estoppel doctrine may preclude a party from relitigating issues of
fact or law already litigated and determined in a prior suit. BethEnergy
Mines, Inc. , 14 FMSHRC 17, 26 (Jan. 1992). Collateral estoppel applies where
the same issue of fact or law has actually been litigated between the same
parties, the determination is a valid and final judgement, and the
determination is essential to the judgement in the prior preceding. Id .;
Intell. Ventures I LLC v. Cap. One Fin. Corp. , 937 F.3d 1359, 1371 (Fed.
Cir. 2019); In re Microsoft Corp. Antitrust Litig. , 355 F.3d 322, 326
(4th Cir. 2004). A determination is “essential” only when the final outcome
hinges upon it. Bobby v. Bies , 556 U.S. 825, 835 (2009). However, “where
the court in the prior suit has determined two [or more] issues, [any] of which
could independently support the result, then neither determination is
considered essential to the judgement.” Intell. Ventures, 937 F.3d at
1372; citing In re Microsoft , 355 F.3d at 328.

Collateral estoppel does
not apply in instances where the issues are not identical because there has
been a change in controlling facts between the two cases. BethEnergy , 14
FMSHRC at 26, citing Montana v. United States , 440 U.S. 147, 158-59
(1979). Different controlling facts, in effect, create a new issue in a latter case
that was not litigated and adjudicated in the former case. BethEnergy ,
14 FMSHRC at 26. Collateral estoppel requires “that the precise issues involved
in the second action were actually and necessarily decided in the first.” Frederick
G. Bradley , 4 FMSHRC 982, 990 (June 1982).

While there is some commonality
between GMS I and this case, in that the independent contractor is the
same and was not served written notice of the safeguards by MSHA in either
circumstance, the alleged violations occurred in different mines, and challenges
to the facial validity of the respective safeguards are necessarily different
because the safety concerns involved different aspects of the underground
transportation systems. Moreover, while the two cases present a common question
as to whether a safeguard is enforceable against an independent contractor that
has not been provided written notice by MSHA, GMS I was not a valid and
final judgement of the Commission and, therefore, is not binding precedent in this
proceeding.

Furthermore, assuming
arguendo, that issues in the two cases were identical, collateral estoppel would
not apply because neither the determination as to the validity nor the
determination as to the enforceability of the safeguard was essential to the former
decision, and the outcome in GMS I was based upon several alternative
grounds in addition to validity and enforceability. [1] Therefore, there
is no preclusive effect on the issues in the present case.

B.    
Validity
of the Safeguard

GMS challenges the facial
validity of Safeguard No. 8202805 because it lacks a declarative statement fixing
a time for compliance. GMS Mem. at 7. The Secretary, while not disputing that a
safeguard must necessarily specify when it becomes effective, contends that the
“Termination Due Date” and “Time” on the Safeguard set the time it goes into
effect. Sec’y Mem. at 7.

Section 75.1403-1(b)
provides that “the authorized representative of the Secretary shall in writing
advise the operator of a specific safeguard which is required pursuant to §
75.1403 and shall fix a time in which the operator shall provide and thereafter
maintain such safeguard. If the safeguard is not provided within the time fixed
and if it is not maintained thereafter, a notice shall be issued to the
operator pursuant to section 104 of the Act.” 30 C.F.R. §75.1403-1(b).

The “Condition or
Practice” on Safeguard No. 8202805, issued February 5, 2013, at 9:05 am, is as
follows:

The block light system is not being followed at this
mine site. The track mounted manbuses are proceeding along the track haulage
way without assurance that the manbus has the right of way or a clear road. During
today’s inspection upon leaving the manbus station and traveling the 3 East
Main track line the outgoing manbus with one management person and one MSHA
coal mine inspector onboard was met by [an] incoming manbus. The outgoing manbus
had the right of way by turning the block light red at 8 Right but had no way
of knowing that the incoming manbus was approaching in the same block. This is
a large multi-unit mine with approximately 80 rail vehicles that regularly and
frequently travel this set of tracks, which includes six mechanized mining
units and a long wall. The rail traffic at this mine site is controlled by the block
light system. Previous failures to follow the system have result[ed] in head on
collisions and injured miners. This is a notice to provide a safeguard
requiring all rail mounted equipment at this mine site to follow the block
light system which has been installed to control the rail traffic and a clear
right of way along the track haulage system. The safeguard is also placing the operator
on notice that failure to follow the block light system will result in more
stringent enforcement acts by MSHA. This condition or practice has recently
been cited on more than one occasion under existing Safeguard No. 7331400.

Standard 75.1403 was cited 41 times in two years at
mine 4404856 (41 to the operator, 0 to a contractor).

Jt. Ex. 3. The Safeguard provides a Termination Due Date
and Time of February 5, 2013, at 9:30 am. The Safeguard was actually terminated
earlier at 9:10 am, after “the operator of the manbus encountered during
today’s inspection was instructed by the Assistant Mine Foreman on the block
light system.” Jt. Ex. 3.

At
the time that Safeguard No. 8202805 was issued, Buchanan Mine’s underground
rail transportation system had already been operating under the block light
traffic control system with Safeguard No. 7331400 in effect, and previous
failures to adhere to the block light signal procedures had caused head-on
collisions and miner injuries. Safeguard No. 8202805 reinforced the safety
requirement in previously issued Safeguard No. 7331400, and placed the operator
on notice that future violations of the mine’s block light traffic protocol
would result in “more stringent enforcement” actions by MSHA. It is wholly
apparent, under the particular circumstances in this case, that the designated “Termination
Due Date” and “Time” on Safeguard No. 8202805, February 5, 2013, at 9:30 am,
gave Consol 25 minutes in which to achieve compliance before MSHA’s enhanced
enforcement of future violations was put in place. Any other reading of the
Safeguard cuts against the reason for issuing it in the first place, reinforcement
of MSHA’s efforts to eliminate vehicle operators being “asleep at the switch.” Accordingly,
I find that the enhanced enforcement scheme of Safeguard No. 8202805 went into
effect at 9:30 am. The Safeguard, therefore, is valid.

C.    
Enforceability
of the Safeguard

GMS, also relying on the
finding in GMS I , challenges the Secretary’s authority to enforce
Safeguard No. 8202805 against GMS by arguing that, under section 75.1403-1(b), a
safeguard is not binding upon an independent contractor performing services in
a mine unless MSHA has served it written notice of the safeguard. GMS Mem. at 5-6;
see GMS I , 42 FMSHRC 135. The Secretary takes the contrary
position that once a safeguard notice has been served upon a production-operator
at a mine, it is binding upon all independent contractors operating at that
mine. Sec’y Mem. at 5-6, 11. Furthermore, the Secretary argues, providing a safeguard
notice to a production-operator effectively provides notice to independent
contractors, as the operator is required to train miners on safety regulations
and procedures, and requiring MSHA to issue written safeguards to every
independent contractor operating in a mine is wholly untenable. Sec’y Mem. at
11-13.

Although MSHA never
served a written copy of the Safeguard upon GMS, Buchanan advised GMS of the
mine’s approved training plan and made training materials available, which GMS
used to provide site-specific and annual refresher training to GMS personnel
who were working in the mine, including block light traffic control procedures.
Jt. Stips. 15, 16, 24. Moreover, GMS was contractually obligated by its labor
services agreement with Buchanan to adhere to mandatory safety and health
standards applicable to the mine’s operations. Jt. Stips. 13, 14.

Production-operators of
mines are vested with authority over control of operations, including staffing
and training, and written notice by MSHA to operators, under section
75.1403-1(b), imposes upon them the responsibilities to ensure that all working
miners are adequately informed of, trained on, and compliant with mine-specific
safeguards, as well as mandatory safety standards. Additionally, production-operators
are in the best position to know the composition of their workforce, whereas
MSHA is only made aware of contractor services by production-operators’
quarterly reporting. GMS Resp. at 5; see 30 C.F.R. §§ 50.30, 50.30-1. Furthermore,
regulations addressing both new miner and annual refresher training, identically
worded in pertinent part, require that they include instruction on “the
procedures for riding on and in mine conveyances; the controls in effect for
the transportation of miners and materials; and the use of the mine
communication systems, warning signals, and directional signs.” See 30 C.F.R.
§§ 48.5(b)(3), 48.8(b)(2). In order to ensure compliance, it would be highly
impractical to require MSHA to timely serve written notice of safeguards upon every
independent contractor brought into the mines, on an as-needed basis, especially
because contractors are not in charge of the mines, they are supplemental to
the permanent workforce, and they are transient. Consequently, the only
reasonable reading of the notice component of section 75.1403-1(b) is its plain
language - - that MSHA advise the mine operator in writing of a safeguard. In
this way, MSHA recognizes production-operators’ autonomy in controlling
operations in their mines, in accordance with law and regulation, and places
solely upon them the burden of achieving compliance.

In this matter, Buchanan satisfied its responsibility,
upon bringing GMS contract workers into its mine, to ensure that all working
miners adhered to the safety requirements of the Safeguard. In finding proper written
notice of Safeguard No. 8202805 to Buchanan by MSHA, and adequate training of its
contract employees on the Safeguard’s safety requirements by GMS, I find that GMS
had constructive notice of Safeguard No. 8202805 from Buchanan, and that it is
enforceable against GMS.

D.    
Violation
of the Safeguard

The parties have
stipulated that if Safeguard No. 8202805 is valid and enforceable against GMS,
the circumstances underlying Citation No. 8312039 constitute a violation of the
Safeguard.  Jt. Stip. 23. The parties have also stipulated to the occurrence of
a significant and substantial violation that resulted in lost-workday or
restricted-duty injuries, and was caused by GMS’s moderate negligence. Jt.
Stip. 21. Having determined that Safeguard No. 8202805 is both valid and
enforceable against GMS, I conclude that GMS violated the Safeguard, and
sustain the Secretary’s gravity and negligence designations.

V.             
Penalty

While the
Secretary has proposed a regularly assessed civil penalty of $9,979. 00, the Judge must independently
determine the appropriate assessment by proper consideration
of the six penalty criteria
set forth in section 110(i) of the
Mine Act, 30 U.S.C. § 820(i). See
Sellersburg Stone Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff'd
736 F.2d 1147 (7th Cir. 1984).

Applying
the penalty criteria, I find that GMS is a large operator, with no prior
violations of section 75.1403 in the 15 months prior to this violation, and
that it had an overall violation history that is a mitigating factor in
assessing an appropriate penalty. Jt. Stips. 25, 26; Jt. Ex. 8. I also find
that the proposed penalty will not affect GMS’s ability to continue in business,
and that GMS demonstrated good faith in achieving rapid compliance after notice
of the violation. Jt. Stip. 6; Jt. Ex. 1. The remaining criteria involve
consideration of the gravity and negligence of the violation. I have found that
the violation was significant and substantial, that it resulted in an accident that
caused lost-workday or restricted-duty injuries, and that GMS’s negligence was moderate.
Accordingly, I find that a penalty of $9,979.00, as proposed by the Secretary,
is appropriate.

VI.          
Order

ACCORDINGLY , the Secretary's Renewed Motion
for Summary Decision is GRANTED , Respondent’s
Renewed Motion for Summary Decision is DENIED , and it is ORDERED that GMS Mine Repair &
Maintenance, Incorporated PAY a civil penalty of $9,979.00 within 30 days
of the date of this Decision. [2]

/s/
Jacqueline R. Bulluck

Jacqueline
R. Bulluck

Administrative
Law Judge

Distribution:

Ryan M. Kooi, Office
of the Solicitor, U.S. Department of Labor, 201 12th Street South, Suite 401,
Arlington, VA 22202-5450

[email protected]

Carl W. Shaffer,
Hissam Foreman Donovan Ritchie PLLC, P.O. Box 3983, Charleston, WV 25339

[email protected]

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[1]
In GMS I ,
the safeguard notice was also found to be facially invalid because it failed to
identify the targeted hazard and specific remedy, and it was determined to be
inapplicable to the conditions for which MSHA had cited the independent
contractor. See GMS I , 42 FMSHRC at 143-45.

[2] Payment should be
made electronically at Pay.Gov, a service of the U.S. Department of the
Treasury, at  https://www.pay.gov/public/form/start/67564508 . Alternatively,
send payment (check or money order) to: U.S. Department of Treasury, Mine
Safety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please
include Docket and A.C. Numbers.