Twentymile Coal Company

Plain-English summary

Twentymile Coal Company operated the Foidel Creek underground coal mine and hired Precision Excavating as an independent contractor. MSHA issued Twentymile six citations for conditions on the contractor's service truck and scraper, including equipment defects, guarding, fire protection, and fuel-container problems. Judge Richard W. Manning found that the Secretary did not abuse her enforcement discretion by citing both the contractor and the mine operator because Twentymile failed to ensure that the equipment was inspected and had sufficient control over the equipment. He affirmed the six citations and assessed a total civil penalty of $900.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.400(a), 77.404(a), 77.412(a), 77.1103(a), and 77.1110
• Outcome: The six citations were affirmed, and Twentymile was ordered to pay $900 in civil penalties.
• Key point: A mine operator may be cited for a contractor's equipment violations when the operator contributed to the conditions or controlled their abatement.

Full text (FMSHRC public release)

TWENTYMILE COAL COMPANY -- July 7, 2003

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1244 SPEER BOULEVARD #280

DENVER, CO 80204-3582

303-844-3577/FAX 303-844-5268

July 7, 2003

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEST 2002-194
Petitioner : A.C. No. 05-03836-03692
:
v. :
: Foidel Creek Mine
TWENTYMILE COAL COMPANY, :
Respondent :

DECISION

Appearances:  Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of
Labor, Denver, Colorado, for the Secretary of Labor;

R. Henry Moore, Esq., Buchanan Ingersoll, Pittsburgh, Pennsylvania,
for Twentymile Coal Company.

Before:  Judge Manning

This case is before me on a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Twentymile Coal Company ("Twentymile"), pursuant to sections 105 and 110 of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. �� 815 and 820 (the "Mine Act"). A
hearing was held in the Commission's courtroom in Denver, Colorado. The parties presented
testimony and documentary evidence and filed post-hearing briefs.

I. STIPULATIONS OF THE PARTIES AND SUMMARY OF THE ARGUMENT

Twentymile operates the Foidel Creek Mine, an underground coal mine, in Routt
County, Colorado. On August 30, 2001, MSHA Inspector Michael Havrilla inspected the
Foidel Creek Mine. During this inspection, Inspector Havrilla issued six citations to Precision
Excavating, Inc., an independent contractor at the mine. He issued six citations to Twentymile
for the same alleged violations. Twentymile contested the six citations that it received in this
civil penalty proceeding.

The parties entered into a number of stipulations at the hearing. The key stipulations
are as follows:

11. This case involves five citations issued for conditions on a Ford 600 service
    truck and equipment or supplies in that truck and one citation for a condition
    on a CAT 627B scraper. These two pieces of equipment were being operated
    at the No. 2 Refuse Pile at the Foidel Creek Mine.

12. These two pieces of equipment were operated by employees of Precision
    Excavating, Inc. Such equipment was owned or leased by Precision
    Excavating.

13. Such equipment is not owned or operated by Twentymile. Twentymile has
    contracted with Precision Excavating to perform work at the No. 2 Refuse Pile
    area.

14. Precision Excavating has MSHA [Contractor] Id. No. CMY.

15. Citations were issued to Precision Excavating for the same conditions as
    described in the citations here. . . .

16. The issue before the Administrative Law Judge is whether it was appropriate to
    cite Twentymile for the conditions described in the citations. The parties agree
    that the conditions described in the citations would constitute violations of the
    cited standard, if it is found that it is appropriate to issue citations to
    Twentymile for these specific conditions. Additionally, the parties agree to
    accept each designation, including gravity, negligence and all other
    designations within each of the citations, if in fact it is determined that it is
    appropriate to have issued the citations to Twentymile. If the Administrative
    Law Judge does determine that it was appropriate to cite Twentymile for the
    conditions described within the citations, the parties further agree that the
    penalty assessments set forth in the Petition for Assessment of Penalty filed in
    this matter are consistent with the criteria set forth in section 110(i) of the Act.

The only issue in this case is whether the citations were properly issued to Twentymile.
The Secretary contends that a mine operator is strictly liable for all violations of the Mine Act
that occur at its mine and that MSHA has discretion to cite both a contractor and the mine
operator for such violations. She states that Twentymile is in continuous control of the mine
and is also in continuous control of everyone and everything that enters the mine. Twentymile
has control over every vehicle and piece of equipment that enters its property. Consequently,
citing Twentymile for safety hazards presented by a contractor's equipment furthers the
objectives of the Mine Act by requiring Twentymile to assure that contractors are complying
with the safety standards.

The Secretary also relies on the guidelines that she developed for inspectors to use
when determining whether to cite a contractor, a mine operator, or both. These guidelines
provide:

Enforcement action against a production-operator for a violation
involving an independent contractor is normally appropriate in
any of the following situations: (1) when the production-
operator has contributed by either an act or by an omission to
the occurrence of a violation in the course of an independent
contractor's work; (2) when the production-operator has
contributed by either an act or omission to the continued
existence of a violation committed by an independent
contractor; (3) when the production-operator's miners are
exposed to the hazard; and (4) when the production-operator has
control over the condition that needs abatement.

(III MSHA, U.S. Dep't of Labor, Program Policy Manual, Part 45 ("Guidelines"); Ex. J-1)
(emphasis added).

The Secretary contends that the citations at issue fit within these Guidelines because
Twentymile failed to examine Precision Excavating's equipment before it entered the mine
property. In addition, Twentymile failed to inspect the contractor's equipment at any time
while it was at the mine. The Secretary also maintains that Twentymile's employees were
exposed to the hazards presented by the violations. Finally, the Secretary argues that
Twentymile exercised control over the contractor's equipment as evidenced by the fact that it
required Precision Excavating to remove the equipment from the mine after the citations were
issued. It could have taken the same action prior to the inspector's arrival at the mine.

The Secretary also relies on Inspector Havrilla's justification for issuing the citations
to Twentymile in this instance. Havrilla testified that in 1998-99, he observed a high number
of contractor violations at the Foidel Creek Mine. He stated that he discussed this problem
with Twentymile management. The number of contractor violations decreased for some
period of time. When the inspector found six contractor violations on two pieces of
equipment during his August 2001 inspection, he decided that enforcement against
Twentymile was necessary to protect miners working at the Foidel Creek Mine.

Twentymile argues that the citations were improperly issued to it. The issuance of
these citations was "contrary to the purpose and intent of MSHA's independent contractor
regulations and good enforcement practice aimed toward improving mine safety and health."
(T. Br. 7-8). The Secretary abused her discretion because there is no rational basis to support
the agency's action. In this case, the Secretary's issuance of the citations was inconsistent
with her past practices of citing only the contractor at the Foidel Creek Mine. In March 2000,
for example, a piece of equipment owned by a different contractor received multiple citations
but Twentymile only received one related citation for a condition over which it had assumed
control and responsibility under the contract. In addition, Inspector Havrilla issued a citation
to Precision Excavating in September 2001 without citing Twentymile.

Twentymile contends that the Secretary abused her discretion in this case because the
citations violate "the fundamental purpose and principles of the Act and the Secretary's own
regulations which place responsibility upon contractors for their own violations." (T. Br. 11).
This improper shifting of responsibility is illustrated by the inspector's testimony that
Precision Excavating's lead man told him that he did not know about the violative conditions
on the equipment because Twentymile did not inspect the equipment. The issuance of
citations to Twentymile under these facts is "directly contrary to MSHA's, the Act's, and the
Commission's goal of achieving mine safety [by] refusing to let contractors ignore their
responsibility." Id. It serves no purpose to cite Twentymile in addition to the contractor when
it is clear that the contractor was responsible for the conditions, where the contractor tries to
shift responsibility away from itself, and Twentymile has taken all reasonable steps to advise
the contractor of its Mine Act responsibilities before it started working on the property. By
issuing citations to Twentymile, Inspector Havrilla "legitimized" the efforts of Precision
Excavating to avoid responsibility for complying with the Secretary's safety standards. (T. Br.
14). Precision Excavating, not Twentymile, should be held responsible for inspecting its
equipment for safety violations. Twentymile had specifically required Precision Excavating to
inspect its equipment and to comply with MSHA regulations as set forth in the contract.

Twentymile also contends that the facts of this case do not meet the criteria set out in
the Secretary's Guidelines. As interpreted by the Secretary in this case, the Guidelines would
require that the mine operator be cited in every instance in which a contractor is involved.
The Secretary clearly failed to establish that her Guidelines call for the issuance of citations
against Twentymile. In sum, the Secretary abused her discretion because she did not proceed
pursuant to objective, ascertainable standards when she cited Twentymile for Precision
Excavating's violations.

II. DISCUSSION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Background

MSHA Inspector Michael Havrilla inspected the surface areas of the mine on August
30, 2001. One of the areas he inspected was the No. 2 refuse pile ("refuse pile"). The
material that was on the refuse pile had previously been removed and the area was being
reconditioned. Precision Excavating was hired by Twentymile to remove clay from the refuse
pile area so that, after additional work was performed, it could be used to store rock and other
material that is mined but cannot be sold. (Tr. 15-16, 83-84). Precision Excavating was using
a pan type scraper to remove the clay. The refuse pile is on Twentymile property but it is
some distance away from the preparation plant and other operations. No Twentymile
employees were working at or near the refuse pile. Precision Excavating had been working at
the mine for about one week with about four employees.

During his inspection, Inspector Havrilla issued six citations to Precision Excavating
for conditions he observed on its equipment and, after discussing the matter with Twentymile
employees, he issued six citations to Twentymile for the same violations. The citations can be
summarized as follows:

Citation No. 7618775 states that the pressure gauge in the air compressor on
the service truck was inoperative in violation of section 77.412(a). Citation
No. 7618777 states that there was a ten by ten inch opening on the compressor
which would allow contact with the drive belts and pulley in violation of
section 77.400(a). Citation No. 7618786 states that the fire extinguisher on the
service truck had not been examined at least once every six months in violation
of section 77.1110. Citation No. 7618788 states that the scraper was being
operated while in an unsafe condition because the diesel fuel tank was leaking
in violation of section 77.404(a). Citation No. 7618884 states that there were
three metal containers of gasoline on the service truck that were not labeled in
violation of section 77.1103(a). Citation No. 7618886 states that there was a
plastic container of gasoline on the service truck that did not meet NFPA
requirements in violation of section 77.1103(a).

When Inspector Havrilla discussed the violative conditions on the service truck with
Precision Excavating's lead man, he discovered that Twentymile had not examined Precision
Excavating's equipment when they were first brought onto the property. (Tr. 31). The lead
mine told the inspector that he did not realize that the service truck was out of compliance.
Inspector Havrilla decided that he wanted to talk to Diane Ponikvar, a safety representative
with Twentymile, and take some actions to "help reduce these hazardous conditions." Id. As
he was leaving the refuse pile in his pickup truck, he noticed that the scraper was leaking
diesel fuel and he told the operator of the scraper to shut it down. After he arrived at the mine
office and informed Ms. Ponikvar of the violations, she told Precision Excavating to remove
the service truck and scraper to a parking lot near the entrance of the mine. This equipment
was not allowed back on mine property until the cited conditions were corrected.

Inspector Havrilla testified that he has been inspecting the Foidel Creek Mine since
1996. In 1998-99, he observed an increase in the number of citations issued to contractors.
(Tr. 33). At about this time, MSHA headquarters issued a memorandum discussing the
increase in the number of accidents involving contractors at mines. Inspector Havrilla
testified that, at a close-out conference in early 1999, he discussed the contractor problem with
mine management. Apparently, one particular contractor was overwhelmed with work and
was not taking "care of the normal wear and tear on machinery." (Tr. 34). The inspector
testified that he warned Twentymile management that he would issue citations to both the
contractor and Twentymile if the number of contractor violations was not reduced. He further
testified that at a close-out conference in November 2000, he advised Twentymile that there
had been a decrease in the number of contractor violations at the mine. When Inspector
Havrilla discovered six violations on two pieces of contractor equipment during his August
2001 inspection, he wanted to find out the "root cause to this problem." (Tr. 35). He testified
that:

In talking to the lead man, finding out that the equipment was
just let on the property, . . . the operator, through omission,
allowed this equipment to operate, and they had been operating
for at least a week so that through omission this condition was
allowed to continue, so I felt that I had a serious problem. I also
felt that I am meeting the four factors and that I had to take
action.

Id. Inspector Havrilla believes that most coal mines in his MSHA field office examine a
contractor's equipment before it is allowed to enter the mine. (Tr. 36). He testified that Ms.
Ponikvar "is very sincere about safety and taking care of the miners" and that she was
"extremely concerned" about these violations. (Tr. 37). Havrilla testified that she told
Precision Engineering "in no uncertain terms that equipment is not operated that way on the
Twentymile property; that she would not allow it; [and] that the machinery would have to
meet all the criteria required by the CFR before she would allow it back on the Twentymile
site. . . ." Id. She immediately ordered Precision Excavating to remove the equipment until
the violative conditions were corrected.

Inspector Havrilla testified that Twentymile met the four factors set out in the
Guidelines. First, by not examining the equipment before it was allowed to operate at the
mine, Twentymile, through that omission, contributed to the occurrence of the violations. (Tr.
39-40). Second, by not examining the equipment at some time while it was operating at the
mine, Twentymile similarly contributed to the violations. Third, Inspector Havrilla believed
that Twentymile was exposed to the hazards created by the violations. If any of the conditions
created a fire, Twentymile personnel could well respond to put out the fire. The mine's fire
brigade was practicing in an area about 1000 to 1500 feet from the refuse pile. They could be
injured in fighting a fire. In addition, he believed that Twentymile miners could use the air
compressor on the service truck and be exposed to the hazards described in the two citations
issued for the compressor. Finally, Twentymile had control over the equipment as evidenced
by the fact that Ponikvar immediately ordered that it be removed.

Twentymile contracted with Precision Excavating in August 2001 to perform work at
the refuse pile. Twentymile followed its usual procedures when it entered into this contract.
Twentymile advised Precision Excavating, both orally and in writing, that it was required to
comply with all MSHA safety and health standards. Twentymile also provided Precision
Excavating with a safety guide that included specific provisions requiring a preshift
examination of all equipment and the repair of all safety defects. (Ex. R-27). The safety guide
also contains provisions relating to each of the six cited conditions and it required the
contractor to correct these conditions before the equipment was operated at the mine.
Twentymile reserved the right to conduct periodic safety inspections of Precision Excavating's
work site and to terminate the contract for safety infractions. Twentymile also required
Precision Excavating to present evidence that all of its employees at the site have complied
with MSHA training regulations.

For the two years prior to August 2001, Precision Excavating had not received any
citations from MSHA despite that fact that it had previously worked for Twentymile and other
mines during that period. (Tr. 85, 117; Ex. R-2). It also did not experience any MSHA
reportable injuries during the previous four years. (Ex. R-29). When contractors come onto
the mine, Twentymile employees make sure that the contractor's employees have all the
MSHA-required training. These Twentymile employees provide the site-specific hazard
training. These Twentymile employees do not examine equipment or vehicles that contractors
bring with them and, according to Twentymile, they are not qualified to do so. (Tr. 106, 120).
A significant number of contractor vehicles and equipment enter the mine each day, including
18 to 20 coal haul trucks. Twentymile does not routinely inspect a contractor's equipment as
it enters the property. (Tr. 87-88, 123). Instead, it performs safety audits of various portions
of its surface and underground facilities on a regular basis. (Tr. 102, 120). If contractor's
equipment is within an area that is being audited by the safety department, that equipment is
inspected. Twentymile also requires contractors to examine their own equipment for safety
hazards and compliance with MSHA safety and health standards. Prior to August 2001, it was
not MSHA's normal practice to cite Twentymile for violations that existed on a contractor's
equipment. (Ex. R-30).

B. Analysis

The issue of who should be cited for contractor violations has been a source of
contention since the passage of the Mine Act. An excellent discussion of the history of this
issue can be found in Judge Todd Hodgdon's decision in Amax Coal West Inc., 16 FMSHRC
2489, 2491-95 (Dec. 1994), which I do not repeat in this decision. Although the Commission
recognized that the Secretary has wide enforcement discretion, it has held that Commission
review of the Secretary's action in citing a production-operator is appropriate to guard against
abuse of discretion. The Commission has issued two important decisions discussing this issue
since Judge Hodgdon's decision, as discussed below.

In Mingo Logan Coal Co., 19 FMSHRC 246 (Feb. 1997), the Secretary issued a
citation to the contractor and to the production-operator because one of the contractor's
employees had not received the required new miner training. The MSHA inspector issued a
citation to the production-operator because he believed that its employees were affected by the
violation. The production-operator contested the citation. The Commission held that in
instances of multiple operators, the Secretary has wide enforcement discretion and "may, in
general, proceed against either an owner-operator, his contractor, or both." Id. at 249 (citation
omitted). The Commission determined that substantial evidence supports the conclusion that
the Secretary met the standard in the Guidelines for enforcement against a production-operator
because its employees were exposed to the hazard. The employees of the contractor and the
production-operator often worked together. The Commission went on to hold that "even if the
Secretary had failed to abide by the Guidelines, that fact would not prove fatal to his
enforcement decision." Id. at 250 citing Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d
533 (D.C. Cir. 1986). Finally, the Commission held that "holding owner-operators liable for
violations committed by independent contractors promotes safety because 'the owner is
generally in continuous control of the entire mine' and 'is more likely to know the federal
safety and health requirements.' " Id. at 251 citing Cyprus Indus. Materials Co. v. FMSHRC,
664 F.2d 1116, 1119 (9th Cir. 1981).

In Extra Energy, Inc., 20 FMSHRC 1 (Jan 1998), the production-operator contracted
with a security company to provide a night security guard at the mine on weekend nights. A
security guard died of carbon monoxide poisoning at the mine as he sat in his own personal
vehicle with the motor running. The Secretary issued citations to the contractor and to the
production-operator. The production-operator contested the citations. The Commission noted
that the production-operator had substantial involvement in the day-to-day operations at the
mine and contracted for services with the security company. Id. at 6. The Commission also
noted that the production-operator defined the contractor's duties and retained some
supervision over the contractor's employees because it regularly reviewed reports from the
guards. The Commission stated that the production-operator failed to provide the security
guards with a structure to protect them from the elements and took no measures to ensure that
their cars were safe, either by inspecting them or requiring that the contractor do so. Id. The
Commission concluded that "[t]hrough its failure to inspect or ensure that the security guards'
vehicles were inspected, Extra Energy contributed to the equipment violation and to the
continued existence of the violation." Id. The Commission relied on the production-
operator's involvement in the mine's affairs and its failure to inspect the vehicle or ensure that
the vehicle was inspected in reaching its decision.

I hold that the Secretary did not abuse her enforcement discretion when she cited
Twentymile for the six violations committed by Precision Excavating. First, Inspector
Havrilla testified that he issued the citations to Twentymile because he believed that there was
serious problem with contractor violations at the mine. The cited conditions were rather
obvious so he was concerned that safety hazards on contractors' equipment were not being
adequately addressed. He believed that by issuing citations to Twentymile, the safety
violations would get more immediate attention than if he only cited the contractor.

Second, the citations easily fit within the first factor set forth in the Guidelines. The
Guidelines provide that "[e]nforcement action against a production-operator for a violation
involving an independent contractor is normally appropriate . . . when the production-operator
has contributed by either an act or by an omission to the occurrence of a violation in the course
of an independent contractor's work." 1 As in Extra Energy, it is not disputed that the
production-operator did not inspect the contractor's equipment when it entered the mine or at
any time after it started working at the refuse pile. More importantly, Twentymile did not
"ensure that the [service truck and scraper] were inspected" by Precision Excavating before
the work began.

There can be no doubt that Twentymile took some important steps in this direction
when it advised Precision Excavating that it must comply with MSHA's safety standards. The
service contract required such compliance and Twentymile orally advised Precision
Excavating at the time it was awarded the contract that it had to comply with MSHA's safety
standards. In addition, the safety guide that it gave to Precision Excavating described the
inspections that its employees must complete on the equipment. Nevertheless, there was no
follow-through by Twentymile to "ensure" that the inspections were actually taking place.
There is no evidence that anyone from Twentymile asked Precision Excavating's
representatives if the equipment had been inspected for safety compliance when it entered the
mine or after it arrived at the refuse pile. Twentymile requires contractors to present evidence
that its employees meet MSHA's training requirements, but it does not have a similar policy
requiring contractors to present evidence that it has inspected its own equipment for
compliance with safety standards. Under these circumstances, it was not an abuse of the
Secretary's enforcement discretion to cite Twentymile for the violations that Inspector
Havrilla discovered because Twentymile did not take the steps necessary to ensure that the
cited equipment was inspected for safety compliance. It was this lack of inspection that lead
Inspector Havrilla to conclude that citations should be issued to both the contractor and
Twentymile. Twentymile's failure to inspect the equipment or ensure that the contractor
inspected the equipment was an omission that contributed to the violations.

The contested citations also fit within the fourth factor of the Guidelines. This factor
provides that "[e]nforcement action against a production-operator for a violation involving an
independent contractor is normally appropriate . . . when the production-operator has control
over the condition that needs abatement." Although Twentymile did not have direct control
over the cited equipment, it reserved the right to have any equipment removed from the
property if it failed to comply with MSHA's safety standards. Twentymile also inspected
contractor equipment on a periodic basis during safety audits. The evidence establishes that
Twentymile exercised sufficient control over the scraper and service truck to meet this factor.2

Twentymile argues that the Secretary abused her discretion in this case "because she
has exercised it inconsistently, in violation of her own policy guidelines, in violation of her
promulgated regulations in 30 C.F.R. Part 45 and without considering the factors that the
Secretary has identified as important in determining whether to cite a production-operator for
an independent contractor's violation." (T. Br. 10). It contends that the Secretary's abuse of
her enforcement discretion is confirmed by the fact that she has not proceeded pursuant to
"objective ascertainable standards." (T. Br. 21). There must be "a rational, reasoned basis for
an agency's action. Id at 22.

I agree that the Secretary has generally issued citations to contractors for their
violations without citing Twentymile. Nevertheless, the Secretary presented a rational,
reasoned basis for her actions here. Inspector Havrilla determined that additional enforcement
action was required to "cure" the problem of contractor violations. (Tr. 42). Ms. Ponikvar
testified that the inspector told her that "it was time to teach us a lesson like he did at
Colowyo," another coal mine in the area. (Tr. 105). Twentymile faults Inspector Havrilla
because his decision to cite Twentymile was subjective rather than the result of a reasoned
analysis. I disagree that his actions were so subjective as to be arbitrary or capricious. It is
true that Inspector Havrilla did not perform any sort of comprehensive analysis of the history
of contractor citations at the Foidel Creek Mine. Nevertheless, he observed the obvious
conditions on the service truck and scraper; he learned that this equipment had not been
inspected by anyone with Precision Engineering or Twentymile; and, on that basis, he
determined that the problem needed to be brought to the attention of the production-operator.
I find that the Secretary, acting through Inspector Havrilla, did not abuse her enforcement
discretion by citing both Precision Engineering and Twentymile for the subject violations.

Twentymile makes numerous other arguments that question the policy of citing a
production-operator for violations committed by independent contractors. It believes that the
safety of everyone working at mines would be best protected by citing only the contractor for
its violations. Twentymile contends that, by shifting blame to the production-operator, the
Secretary is failing to adequately impress upon contractors the importance of taking
responsibility for compliance with MSHA safety and health standards. Although this public
policy issue has been thoroughly discussed by the Commission and the Courts of Appeals,
Twentymile's arguments have not been adopted. Consequently, I also reject these arguments.
It believes that these prior Commission and court holdings "merit reevaluation and
Twentymile preserves its right to challenge such holdings." (T. Br. 8, n. 2). I am required to
follow Commission precedent in this decision. All of the arguments made by Twentymile that
I have not specifically discussed in this decision are hereby rejected.3

III. APPROPRIATE CIVIL PENALTIES

Section 110(i) of the Mine Act sets out six criteria to be considered in determining
appropriate civil penalties. The parties stipulated, for purposes of this case, that the
Secretary's determinations as to the criteria should be applied. The record shows that
Twentymile has a history of about 312 paid violations at the Foidel Creek Mine during the 24
months preceding August 2001. (Ex. G-2). The Foidel Creek Mine produced over 7.2 million
tons of bituminous coal in 2001. Twentymile and its affiliated companies produced over 61
million tons of bituminous coal in 2001. All of the violations were abated in good faith. The
negligence and gravity criteria are as stated in each citation. The penalties assessed in this
decision will not have an adverse effect on Twentymile's ability to continue in business.
Based on the penalty criteria, I find that the penalties proposed by the Secretary are
appropriate.

IV. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. � 820(i), I assess the
following civil penalties:

Citation No. 30 C.F.R. � Penalty

7618775 77.412(a) $55.00
7618777 77.400(a) 340.00
7618786 77.1110 55.00
7618788 77.404(a) 340.00
7618884 77.1103(a) 55.00
7618886 77.1103(a) 55.00

TOTAL PENALTY $900.00

Accordingly, the six citations at issue in this case are AFFIRMED as set forth above
and Twentymile Coal Company is ORDERED TO PAY the Secretary of Labor the sum of
$900 within 40 days of the date of this decision.

Richard W. Manning

Administrative Law Judge

Distribution:

Kristi L. Floyd, Esq., Office of the Solicitor, U.S. Department of Labor, P.O. Box 46550,
Denver, CO 80201-6550 (Certified Mail)

R. Henry Moore, Esq., Buchanan Ingersoll, 301 Grant Street, 20th Floor, Pittsburgh, PA
15219-1410 (Certified Mail)

RWM

FOOTNOTES:

1  The Guidelines are not binding on the Secretary, as discussed above. In addition, the Guidelines provide that enforcement against a production-operator is appropriate if any of the four factors are met.

2 I agree with Twentymile that its employees were not exposed to the hazards presented by the violations in any meaningful sense. Its employees would not be using a contractor's compressor. Moreover, a production-operator would always respond to a fire or other emergency involving a contractor's equipment. Under the Secretary's interpretation, virtually all contractor violations would expose the production-operator to citations under this factor.

3 Twentymile filed a proposed list of corrections to the hearing transcript along with its brief. I have reviewed these corrections and grant its request to amend transcript accordingly.