Newmont USA Limited

Plain-English summary

Newmont shut off an auxiliary fan and tied off ventilation bags in two headings at its Nevada gold mine, leaving ropes and signs stating that a heading inspection was required. Judge John Kent Lewis found that the headings were unventilated and that a rope did not prevent entry as required by the barricade standard. He affirmed the violation as S&S but removed unwarrantable failure because Newmont had a good-faith belief that its policy complied with MSHA's guidance. The judge modified the section 104(d)(2) order to section 104(a) and reduced the proposed $35,000 penalty to $5,000. The Commission later affirmed the violation, vacated S&S, and remanded the unwarrantable-failure and penalty issues.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.2 and 57.8528
• Outcome: The violation was affirmed as S&S, unwarrantable failure was removed, the order was modified to section 104(a), and the penalty was set at $5,000.
• Subsequent review: The Commission vacated S&S and remanded unwarrantable failure and penalty issues in west-2010-652-rm-commission.
• Key point: Ropes and signs that do not prohibit entry are inadequate barricades, but the Commission later found the record insufficient for an S&S designation.

Full text (FMSHRC public release)

FMSHRC ALJ Decision

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

875 GREENTREE ROAD

7 PARKWAY CENTER, SUITE 290

PITTSBURGH, PA 15220

TELEPHONE: (412)920-7240

FAX:(412)928-8689

January 5, 2011

NEWMONT USA LIMITED,

Contestant,

v.

SECRETARY OF LABOR

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Respondent.

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA),

Petitioner

v.

NEWMONT USA LIMITED,

Respondent

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CONTEST PROCEEDING

Docket No. WEST 2010-652-RM

Order No. 6482848; 01/26/2010

Mine ID: 26-02314

Mine: Midas Mine

CIVIL PENALTY PROCEEDING

Docket No. WEST 2010-1584-M

A.C. No. 26-02314-224579

Mine: Midas Mine

DECISION

Appearances:              Laura C. Bremer, Esq., Office of the Solicitor, U.S. Department of Labor,
90 7th Street, Suite 3-700, San Francisco, CA , for the Secretary of Labor

Laura E. Beverage, Esq., Jackson Kelly, PLLC, 1099 18th Street, Suite
2150, Denver, CO, for Respondent

STATEMENT OF THE CASE 

This civil penalty proceeding was held pursuant to the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 802 et seq. (2000), (the “Act”). This matter concerns an alleged
violation of the mandatory safety standard 30 C.F.R. § 57.8528. Order No. 6482848 was served
on Newmont USA Limited (“Respondent” or “Newmont”) on January 26, 2010. The alleged
violation was found to be significant and substantial in nature, as well as an unwarrantable failure
to comply with a mandatory safety standard. A hearing was held in Reno, Nevada on September
26, 2011, and the parties participated fully therein. They later submitted post-hearing briefs.

STIPULATIONS AT HEARING

Prior to hearing, the parties stipulated to the following:

1.        Newmont is engaged in mining operations in the United States and its
mining operations affect interstate commerce.

2.        Newmont is the owner/operator of the Midas Mine, MSHA ID No. 26-02314.

3.        Newmont is subject to the jurisdiction of the Federal Mine Safety and
Health Act of 1977, 30 USC § 801 et seq.

4.        The Administrative Law Judge has jurisdiction in this matter.

5.        Order No. 6482848 was properly served by a duly authorized representative
of the Secretary upon an agent of Newmont on the dates and places therein,
and may be admitted into evidence for the purpose of establishing its
issuance.

6.         The exhibits to be offered by Newmont and the Secretary are stipulated to
be authentic with the exceptions of Respondent’s exhibits 6, 9, 10, 14, 16
and 17.

7.         The operator demonstrated good faith in abating the violation cited in Order
No. 6482848.

8.         The assessed penalty, if affirmed, will not impair Newmont’s ability to
remain in business.

9.         Shon Guardipee, a former Mine Health and Safety inspector, wrote Order
No. 6482848, which is the subject of this case. Mr. Guardipee lives in
Idaho. The parties have agreed to present Mr. Guardipee’s evidentiary
deposition testimony in its entirety at the hearing, subject to objections
made at the deposition.

10.       Midas Mine is an underground gold mine operated by Newmont in
Northern Nevada.

11.       The alleged violation occurred at the North and South headings at the 5301
level of Spiral 1 at Midas Mine, which Midas refers to as 1-5301N and 1-5301S.

12.       At the time of the MSHA inspection on January 26, 2010:

a.         The ventilation bag that directs air into the 1-5301 South heading at
Midas Mine was tied off.

b.         Signs stating “Danger Heading Inspection Required” were posted at
the 1-5301 North and 1-5301 South headings.

c.         Rope barriers were hanging across the 1-5301 North and 1-5301
South headings.

SUMMARY OF THE TESTIMONY

Shon Guardipee (“Guardipee”) is a former inspector who worked for MSHA in its Elko,
Nevada field office from December 2008 until April 2010. Depo Tr. 14, 18, 24.

Prior to
working for MSHA, he had four to five years of experience and was involved in the mine rescue
competitions. Depo Tr. 12, 13. After leaving MSHA, Guardipee went back to mining with a
contractor at the Buckhorn Mine out of Republic Washington. Depo Tr. 18. He left MSHA
because he was not particularly fond of the way business was conducted, and he was informed
that his citation count was too low, and he would be fired if he did not increase it. Depo Tr. 92.

Guardipee began his regular inspection of the Midas Mine on January 26, 2010 at the top
of Spiral 1 with an employee of Respondent named Ivan Castelanos and Jamie Wolicki, Miner
Representative. Depo Tr. 29, 41. As he approached the 5301 heading, which was the access off
of the main haulage, he checked the area for loose ground and observed that the sill fan at the
5301 level was off. Depo Tr. 35. This observation was based on the fact that the fans are very
loud and there was a distinct lack of noise

, as well as the fact that the ventilation bags were not
pressurized. Depo Tr. 35, 36. As he moved in to inspect the 5301 South heading, he noticed that
the ventilation bags were tied off, turned around and noticed that the others had not followed him
into the headings. Depo Tr. 40,41. The fans remained off throughout the entire time of the
inspection. Depo Tr. 42.

When Guardipee questioned the others in the inspection party, they informed him that the
headings had been inactive for a week and a half. Depo Tr. 42; Ex. A, pg 6

. In his recollection,
the ventilation bags

were tied off fairly close to the entrance of the heading. Depo Tr. 42. There
were signs hanging by a rope or chain at the headings stating, “Danger, Heading Inspection
Required.” Depo Tr. 46, 51, 52; Ex. A, pg 6.

On January 26, 2010, from the information observed during his inspection, Guardipee
wrote Order No. 6482848, citing a violation of 30 C.F.R. § 57.8528

, stating:

At the 1-5301 North and South headings the ventilation fan was off. The
headings have been inactive for a week and a half. The headings were not
barricaded or signed stating the nature of the hazard. The area is readily
accessible. If a miner were to enter the heading fatal injuries could occur from
lack of oxygen or high concentration of toxic gasses. Management engaged in
aggravated conduct constituting more than ordinary negligence in that they were
aware of the heading being inactive and did not take the appropriate actions to
prevent inadvertent entry by miners. This violation is an unwarrantable failure to
comply with a mandatory standard. Depo Tr. 55; Ex. 1.

Guardipee designated the Order as reasonably likely to result in a fatal injury. Ex. F, pg

1. He based this decision on the fact that the ventilation was off and, if the atmosphere was
   either toxic or lacking in oxygen, a miner entering the heading could sustain a fatal injury. Ex.
   F., pg 1 Finally, he designated the Order as high negligence on the part of the operator because
   Respondent had previously been cited and talked to about this behavior during inspections and
   the shifter, who was an agent of Respondent, was aware that the heading was inactive and
   unventilated and did nothing to correct it.

Depo Tr. 85, 86; Tr. 58; Ex. F, pg 1; Ex. GGG. This
Order was terminated when Respondent barricaded the headings with a chain link fence bolted to
the ribs and put up a sign that read “Danger, Inactive Heading” and underneath, Respondent
included the words “inactive heading.” Depo Tr. 59; Ex. F, pg 3.

Guardipee explained that it appeared that the air in Respondent’s Midas Mine comes up
from the bottom of the ramp, all the way to the top of the spiral and then moves into the main
haulage. Depo Tr. 67, 68. During his inspection, Guardipee took gas readings at the 5351 North
heading and did not find any noxious gas or lack of oxygen. Depo Tr. 69. However, he
explained that the failure to have a chain link fence barricade to prevent access to an unventilated
heading could result in miners accessing bad air. Depo Tr. 70, 71. He also acknowledged that it
is common practice for a ventilation bag to be tied off to provide more air to the working face,
but, in his experience, barricades in other mines were typically snow fences and rib-to-rib
signage that expresses that there is no ventilation or the ventilation has been withdrawn. Depo
Tr. 74, 75.

When asked about the ventilation of these particular headings, Guardipee could not
specifically rule out that some natural ventilation would migrate to the headings. Depo Tr. 79,

80. He stated that the area cited was ninety degrees in two directions off of the spiral and
    referred to the area, instead, as a dead heading. Depo Tr. 79. However, he admitted that he was
    not an engineer qualified to determine how far the air coursing through the spiral would extend
    into those areas without any further ventilation. Depo Tr. 106.

When questioned as to his confidence in his penalty designations, Guardipee stated that
as a trainee he had been somewhat involved in a similar situation at the Barrick Meikle Mine
where, he believed, the sign was hanging from a rope and did not meet the definition of
“barricaded,” which would prevent the passage of persons, vehicles, or flying materials. Depo
Tr. 83, 84. Here, one miner entered an unventilated area and lost consciousness. Depo Tr. 107.
Another miner attempted to save him and either lost consciousness or became very disoriented.
Depo Tr. 107, 108. It took a third man to turn on the ventilation fans to get the other two to
safety. Depo Tr. 108.

Kevin Hirsch (“Hirsch”) has been working for MSHA since 2002 and has been the
Assistant District Manager for the Western District for the last two and a half years. Tr. 15,16.

His job duties include reviewing citations, orders and reports, specifically when these involve
unwarrantable failures, knowing and willful violations, and special assessments to insure that
they are properly cited and issued. Tr. 19, 61.

Hirsch testified that mines need to be ventilated to insure that oxygen remains at the
appropriate levels above nineteen and a half percent. Tr. 27. Gases, such as carbon monoxide,
dioxygen and sulfur dioxide, can occur naturally within a mine, but can also be produced through
the usage of equipment or blasting. Tr. 27. To keep these gases at acceptable levels, mine
operators must create and submit ventilation plans that must then be reviewed by MSHA prior to
operation. Tr. 27,28, 116. Under cross-examination, Hirsch acknowledged the gas readings
taken in the 1-5301 North and South headings indicated that there was no lack of oxygen or
accumulation of gases. Tr. 63, 64, 65. He further stated that environmental methods of
ventilation exist and, depending upon several factors, including whether the heading was near
enough to the vent raise, air could have naturally been traveling to the heading. Tr. 66, 69, 70.
He admitted that air would travel through the ventilation bags even if the auxiliary fan was off,
but he had never, in his experience, seen a ventilation bag fully inflated without the fan running.
Tr. 86. However, he also testified that he would not enter the heading without the auxiliary fan
operating. Tr. 66.

Hirsch further testified that he had read Guardipee’s notes and acknowledge that they
indicated that the fan was off. Tr. 34. In his experience, he would not accept a sign stating
“Danger, heading inspection required” as meeting the requirements of the regulation because a
typical miner would walk in and inspect items that he could see. Tr. 34, 59. The problem is that
the lack of oxygen or existence of bad gas is not something that can be seen, and it is not normal
practice for Midas miners to use gas monitors in order to perform heading inspections. Tr. 34,
35, 59. He would want a sign that states “Unventilated area” to indicate that miners need gas
monitors to determine whether there is adequate oxygen. Tr. 35. Under cross-examination, he
did acknowledge that the Midas Mine does not naturally emit sulfur dioxide, dioxide, carbon
monoxide or the lower explosive limits of any other gas. Tr. 114. However, he also testified that
a violation of § 75.8528 can exist even when oxygen levels are adequate because the oxygen
levels may not be adequate in the future. Tr. 119.

After the accident described by Guardipee at the Meikle Mine, a meeting was held at the
Fire Science Academy outside of Elko, NV in June 2009. Tr. 40. The purpose of the meeting
was to discuss ground control, but the focus turned to barricades because of the two miners that
had been overcome by lack of oxygen. Tr. 41, 117. Representatives for MSHA read the
definition of “barricade” and discussed the minimum requirements to meet the regulation to all
operator representatives that were present. Tr. 43,44. Tim Burns and Mark Ward both attended
this meeting for Respondent. Tr. 41. After this meeting, Respondent was cited several times for
violations of 30 C.F.R. § 57.8528. Tr. 48, 59, 60; See FN 6.

Hirsch was also somewhat involved in the investigation of the incident at the Meikle
Mine, although he was not present at the mine. Tr. 76. He acknowledged that there was some
form of barricade in this mine and the miners went through it intentionally before being
overcome by lack of oxygen. Tr. 76, 77. In his view, the barricade here would not have been
adequate under the regulations because it did not extend from rib to rib. Tr. 77. The result of
this accident is that although the miners had to go to the hospital, they did not end up missing any
workdays due to the injuries they sustained. Tr. 80.

Jack Stull (“Stull”) is a mine inspector in the Elko, Nevada field office with three years of
experience. Tr. 126. Prior to his employment with MSHA, he worked at the Goldstrike Mine in
northeast Nevada for approximately fourteen years. Tr. 126. He inspected the Midas Mine for
the first time in October 2009 as part of a general inspection and was accompanied by Inspector
Gerald Killion and Respondent’s Health and Safety Specialist, Sandy McFarland (“McFarland”).
Tr. 128, 139.

During the inspection on October 15, 2009, Stull observed and took pictures

to verify
that the ventilation bags had been disconnected and were hanging from the back.

Tr. 131.
Because the bags were not inflated, Stull concluded that the area was not ventilated. Tr. 143.
Based on this observation, he issued a citation to Respondent under 30 C.F.R. § 57.8528. Tr.

131. During his testimony, Stull stated that, although there was a berm in place from rib to rib,
     the citation was issued because Respondent had no sign posted against entry. Tr. 135, 136. The
     gas reading at the entrance of the heading showed adequate levels of oxygen, but Stull would not
     traverse further into the heading because he “did not want to put himself in danger.” Tr. 135.
     Later, Respondent was issued a citation under the same code section because, although it had
     posted a sign against entry, it had only placed a chain across the heading, which Stull stated did
     not meet the definition of “barricade” as contemplated by the statute.

Tr. 143, 144, 146. He
then explained what MSHA would accept as a barricade. Tr. 146.

When Stull issued Citation No. 6488539 on October 20, 2010, he observed that the
ventilation bag was tied off and damaged, there was a sign stating “Danger, heading inspection
required” and only a small piece of rope was used to barricade the heading. Tr. 148, 149. On
cross examination, Stull recognized that he does not know the Midas Mine’s procedure for
conducting a heading inspection. Tr. 170. Because Respondent was already on the D series

,
Stull decided then to speak directly to his supervisor, Jim Fitch (“Fitch”), as well as the Safety
Specialist for the Western District, Rod Gust, to ensure that the information that he was giving to
Respondent was correct. Tr. 151 - 153. They confirmed that Stull was correct and Fitch met
Stull at the Midas Mine the next day to discuss the appropriate measures to be taken, given the
definitions under 30 C.F.R. § 57.8528. Tr. 154, 155. Upon completing the inspection, Stull
found one other violation of the standard. Tr. 159.

On cross-examination, Stull acknowledged that, while snow fencing would impede a
person attempting to enter a heading, it would not stop him if he intended to do so. Tr. 165. He
testified that a rope would possibly impede a person as well. Tr. 165. In training, he was not
given the definition of “unventilated;” rather, he was trained to look for the conditions that would
lead to an area being unventilated - fans turned off, ventilation bags down or damaged, etc. Tr.

166. If the auxiliary fan was off and/or the ventilation bags were tied off, the area was
     unventilated in his opinion. Tr. 166.

When asked about the ventilation plan in place at the Midas Mine, Stull stated that,
although he was never involved in making such a plan, he had a reasonable understanding of it.
Tr. 181, 182. He testified that Respondent uses a main fan that pulls air from the surface to the
underground and boosters or auxiliary fans are used to move that air into the headings and
laterals. Tr. 182. The reused air then goes out the ventilation or drift. Tr. 182. Although a
smoke tube can be used to determine whether there is air circulation, Stull did not use this
equipment during his inspection and, therefore, could not determine the quantity of air that was
moving through the mine. Tr. 183, 184.

Sid Tolbert (“Tolbert”) has been the Mine Supervisor at the Midas Mine for
approximately three years and was the supervisor at the time that the Citation was issued in
January 2010. Tr. 209. In his professional capacity, he is responsible for the health and safety of
all personnel, including those underground, and was actually a miner at the Midas Mine prior to
2004, working in mine development. Tr. 210.

Tolbert testified that the citation as issue here was written in a development area. Tr.

213. During the development process, miners drill holes in the area to be excavated with a rock
     drill, load the holes with explosives and blast the rock into a muck pile. Tr. 213, 214. The rock
     is then removed by a front end loader, ground supports consisting of friction bolts and wire are
     added and then miners finish mucking out the area. Tr. 214.

Tolbert explained that a vent raise is used to bring fresh air into the active sill headings
for the purposes of ventilation. Tr. 216. An auxiliary fan was also permanently located in the 1-5301 headings in the bulkhead, which is structure made out of concrete and wire mesh to seal off
the area and make it airtight. Tr. 217. It is turned on by pushing a button in the electrical power
box. Tr. 217. If the box malfunctions, the electricians are called down to fix it. Tr. 217, 218.

As for the geology of the mine, Tolbert testified that there are three basic types of rock
within the mine. Tr. 218. “Tuffs” are basically waste development that are formed by volcanic
eruption when the ash shoots into the air, comes down and layers upon itself. Tr. 218. “Mafic
flows” are basically lava flows that slow into cracks that run horizontally. Tr. 219. Finally,
“intrusive flows” occur where the rock cracked open and allowed either lava or mineralized veins
to form. Tr. 219. According to Tolbert, the mine does not have the rock strata to cause an
oxygen deficiency and these geological formations do not emit sulphur dioxide, nitrogen dioxide,
carbon monoxide or the lower explosive limit of any other gas.

Tr. 219. However, he does
acknowledge that manmade contaminants exist in the mine, such as carbon monoxide from the
blasting and diesel engines as well as nitrogen dioxide from the blasting. Tr. 255.

Tolbert further testified to the specifics of the ventilation system at the Midas Mine by
stating that the mine uses both primary and auxiliary ventilation. Tr. 220, 221. The primary
ventilation had two intakes at the time and the portal was for negative flow. Tr. 221. The deep
raise vent consisted of two 350 horsepower fans sitting on the surface pushing approximately
half a million cubic feet of air per minute (“CFM”) down into the bottom of the mine and
dumping it out at the Five Haulage. Tr. 221, 222; Ex. B. As it is pushed down, the air is sucked
up a second vent raise by the auxiliary fan and the main North Vent Raise fan, splitting the air
that was originally pushed down. Tr. 223. Of this split air, approximately 100,000 CFMs comes
up the Three Spiral and approximate 151,000 CFMs go up Four Spiral. Tr. 223; Ex B. This air
is then dumped back into the Five Haulage, where it works its way up the Five Spiral, comes
down the 5450 Haulage and is exhausted back into the atmosphere by the North Vent Raise. Tr.
223, 224; Ex. B. The South Vent Raise exhausts approximately 331,000 CFM and about
110,000 of this came from Spiral one at issue here, which is primarily ventilated through the
portal ventilation. Tr. 225; Ex B.

Tolbert testified that the secondary ventilation consisted of a 125 horsepower fan located
at the bottom the ventilation raise. Tr. 226; Ex B. It is bulkheaded off and sealed so that it
cannot recirculate as it pushes about 100,000 CFMs up the raise. Tr. 226. Several auxiliary fans
draw the air out of the raise and direct into the development drifts in the sill headings through the
use of ventilation bags. Tr. 226, 227. In his opinion, there would be ventilation whether the
auxiliary fans were running or not because pressurization of the vent raise will push air into the
openings.

Tr. 226, 227, 236, 241. He, however, acknowledged that, when miners are working
in the drifts, the auxiliary fans are typically on. Tr. 227. This is insured through the five-point
heading inspection that is required before any work can commence in an area. Tr. 227; Ex 7.
New miners to the Midas Mine are trained during a four-week class to understand what the lay of
the mine, the five-point inspection, and what they are looking for during this inspection. Tr. 228.

During the five-point inspection, Tolbert explained that a miner

would start right off the
spiral and would look at the intersection to check for loose ground, damaged wire, damaged
ground support or other hazards. Tr. 229. As he got closer to the intersection of the sill
headings, he would start looking at ventilation, checking the utilities, such as ventilation bags,
and making sure that the fan is on and operable. Tr. 229-231. If the fan was off on arrival, he
would start it before he proceeded any further than the starter box. Tr. 230. Once any hazards
were corrected, he would remove the barricade and take down the sign. Tr. 230. Prior to
October 2009, the Midas Mine had always used a rope that stretched from rib to rib and metal
sign that stated, “Danger, heading inspection required.” Tr. 231. Miners were taught that this
meant that a heading inspection was to be done before work commenced and any hazards or
deficiencies were to be corrected. Tr. 231, 232. If any of these could not be corrected, the
miners were to call their shift foreman for help. Tr. 232. There is no procedure at the Midas
Mine for when headings must be tested for has levels. Tr. 257. Although it is not common,
miners have been disciplines or fired for failing to perform adequate heading inspections. Tr.
233.

After the inspections in 2009, Mark Ward (“Ward”), mine manager for the Midas Mine,
sent out a memorandum stating that Tolbert needed to give direction to the supervisors as to how
to barricade and what types of headings needed to be barricaded. Tr. 237, 238, 280. Tolbert
admitted that after the inspection, he was not clear on what needed to be barricaded because it
had not been an issue prior to this inspection. Tr. 238. However, after receiving the citations, he
suggested to Respondent’s personnel that snow fence needed to be attached at all four corners,
top and bottom. Tr. 252. Tolbert later developed a standard operating procedure, but it was not
presented to the miners and, later, Tolbert testified that Respondent was actually complemented
on its barricading procedures by another miner; although, Tolbert was not present to hear this
complement. Tr. 239, 240, 248. During cross examination, Tolbert agreed that snow fencing
and chain link fencing were used in some instances in the mine and that, at least for the snow
fence, the installation is done through the use of a handheld drill and takes less than thirty
minutes to finish. Tr. 249, 251.

Under cross examination, Tolbert explained that a crew consisted of twenty-five to thirty
men. Tr. 245. One foreman per crew carries an air quality monitor, but the miners on the crew
do not carry them. Tr. 245. Further, the air quality monitors are kept on the surface. Tr. 245.
So, should a miner get underground and realize that he needs a monitor, he must either walk back
up to the surface or call to have someone bring it down to him. Tr. 245, 246. He also testified
that, although miners are supposed to verify that air from the vent bag is sweeping the face, no
smoke tubes or anemometers are used to ensure that this is the case. Tr. 255. He stated that
although air would travel to a heading without the use of an auxiliary fan and with the ventilation
bag tied off, the air would not sweep the face. Tr. 271. Enough air would migrate through the
heading to dilute gases though. Tr. 273.

While the members of any crew who work for the mine are required to take the four-week
training session, Tolbert acknowledged that subcontractors do not have to take this training
session. Tr. 247. He stated that he is further aware of instances in the last three years where
miners have failed to complete heading inspections and maintain ventilation bags. Tr. 247.

As previously stated, Mark Ward is the Mine Manager for Respondent’s Midas Mine and
has held this position for a little over four years. Tr. 280. Prior to this, he was the mine manager
at Respondent’s Carlin operations for about ten years. Tr. 281. In total, he has worked in the
mining industry for over twenty-five years and graduated from South Dakota School of Mines
and Technology where received his Bachelor of Science degree in Mining Engineering. Tr. 281,

282. However, except for three months in 1981, all of his experience prior to the Midas Mine
     had been in surface mines. Tr. 302. His primary duties at the Midas Mine are to maintain safe
     and cost effective production. Tr. 282.

Ward is further involved in forecasting, which is the updating of the mining and
development production plan and determining all the operating and capital costs associated with
operations for the life of the mine. Tr. 282, 283. This is then used as a business model for the
operator and leads to a sequence of development and production. Tr. 283. However, mining is a
fairly dynamic environment, so things can change from quarter to quarter. Tr. 283. The map he
creates is color-coded to signify periods of time when activity is going to take place. Tr. 283,
284; Ex 17.

Ward testified that the process of developing an area is a very complicated process that
takes a long time from drilling into development and ultimately into production based upon
economics; and it requires several stages. Tr. 286. Initially, Respondent uses drill holes to drill a
two-inch core through the vein to determine where it is located, its thickness and to obtain assay
results on the gold and silver content. Tr. 287, 288. From these results, geologists build a
geological wire frame model that shows in space based upon the surveys and intercept where the
intercept is located. Tr. 288. The model is then turned over to the modelers, who apply
geostatistical analysis, break the model down into twenty-five foot long by twenty-five foot wide
blocks that are the thickness of the vein intercept and use the assay results to assign a metal value
to the block. Tr. 288. Depending upon where the operator is at in the process, development
could take several weeks or up to a year. Tr. 288.

During the time of development, people are required to access the development heading,
like heading 5301 at issue, in order to collect information, such as channel samples for metal
analysis. Tr. 288, 289. This, in turn, can drastically effect the development plan as more
knowledge of the value of the core is determined, such as in 5301 which was developed much
different than what was conceptualized the year prior to its development. Tr. 303, 304. In his
opinion, Ward would label this area as an active area that is not a working area because there
may not be someone assigned to that area that day or for the week. Tr. 289. However, he
explained that Respondent would be aware that someone needed to enter the area sometime
before it had to be done. Tr. 289.

Ward mirrored the testimony of Tolbert that a five-point safety inspection must be
conducted prior to work being conducted in the area and that there are rigorous training
requirements for new miners. Tr. 290. He further stated shifters visit working places once at
shift at a minimum and they normally carry gas detection devices with them. Tr. 291. However,
he further testified that this mines does not naturally produce gas so oxygen deficiency is not a
problem in this mine and he relies on the mineralogy of the rock and history of the mine to make
these statements. Tr. 291.

Ward testified that he attended the meeting at the Fire Science Academy in Elko, NV in
June 2009. Tr. 292. He recalled that a PowerPoint presentation was shown concerning the
industry trends on injuries, but does not recall that any other topics were discussed at length. Tr.
292, 293. He further cannot recall ever having seen any policy guidance that is written with
respect to the application of 30 C.F.R. § 57.8528 and, in his opinion, unventilated means that
there is a lack of oxygen. Tr. 293. He does not agree that the fact that an auxiliary fan was off
means that the area is unventilated because the fan can easily be turned on and, in any event, air
migrates into the headings even when the fan is not turned on. Tr. 293, 294. In the event that a
gas producing event is occurring, such as blasting, the area is barricaded for a minimum of thirty
minutes and the area is blocked by mine employees so that no one can enter. Tr. 294.

Ward recognized that rope barricades and signage stating “Danger, heading inspection
required” was not in compliance around October 2009, when the mine was issued a number of
citations. Tr. 294, 295. In response to this, Ward drafted a policy document relating to active
versus short term inactive versus long term inactive headings to give the miners some guidance
in what type of barricade and signage would be required in different situation to avoid future
citations. Tr. 295, 296. Chain link fence was to be used to barricade long term inactive
headings, snow fence was to be used on short term active headings and rope barriers were to be
used on active headings, which included headings that were scheduled for production or
development in the following four weeks where the ventilation bags had been tied off. Tr. 306-308. To this end, he stated that it is not practical to install snow fencing every time a heading is
unproductive for a period of time because it could be inactive for a very short period of time,
such as a week, and there is some flexibility in the mining plan. Tr. 297.

Ward testified that all of the previous citations issued to Respondent under the code
section at issue here had been settled. Tr. 312. These citations had ranged in penalty from
$128.00 to $285.00. Tr. 313. The assessed penalty for Citation No. 6482848 is $35,000.00. Tr.

313. Ward stated that it was an economic decision to contest this citation. Tr. 313.

Ivan Castellanos (“Castellanos”) is General Foreman at Respondent’s Midas Mine and
has been with Respondent for thirteen years. Tr. 316. Prior to this, he worked at Turquoise
Ridge and the Miekle Mine belonging to Barrick Goldstrike. Tr. 316. Before his position as
General Foreman, Castellanos was a lead man or active shifter. Tr. 316. His responsibilities
include enforcing all policies in order to ensure that everyone gets home safely at the end of the
day. Tr. 316.

Castellanos was present during the inspection on January 26, 2010. Tr. 319. He testified
that when he arrived at the 5301 elevation, the auxiliary fan was turned on, but he turned it off
when he got to the crosscut because the inspector asked him what level they were on and he had
to turn it off in order to talk to him. Tr. 319, 320. He stated that no one was working at the time
of the inspection and he conducted the heading inspection that was required. Tr. 321. Both
headings were roped of and posted with the exact same signage. Tr. 327. Castellanos testified
that both he and Guardipee walked all the way to the face of the north heading and Guardipee’s
gas meter did not alert them to any problems. Tr. 322. He further corroborated Guardipee’s
testimony that he did not follow him into the south heading because there was a hazard and he
held his men back. Tr. 322. He did not witness Guardipee taking any air quality samples and his
gas meter did not alert them to any problems in the heading. Tr. 322, 323. Although he did not
follow Guardipee into the south heading, he was not concerned that the air quality was bad in the
heading. Tr. 328. He stated that he simply didn’t want to go against company policy. Tr. 328.

In the course of his employment, Castellanos has only had his gas monitor go off when he
was following a truck too closely and the carbon monoxide alarm went off. Tr. 325. He has
never had it go off without the presence of running equipment, however. Tr. 325. In his position
as foreman, he visits the crews during their work shifts at least once a day. Tr. 325, 326. If a fan
happens to go down, he typically gets in touch with the electricians, tags the fan out and pulls the
miners out of the heading until the fan is replaced. Tr. 326.

The final witness, Lennon Van Kirk (“Van Kirk”) is an underground miner, tech five and
lead man at the Midas Mine and has been with Respondent for approximately six years. Tr. 329.
One of his responsibilities is to conduct five-point inspections prior to working in a heading. Tr.
329, 330. He testified that ground control and ventilation are the two most important parts of the
inspection. Tr. 330. During the ventilation inspection, he inspects the condition of the vent
tubing, fan controls and ventilation bags. Tr. 330.

He testified that the auxiliary fan could be turned off for a number of reasons. Tr. 330.
One reason would be during a blast, which create so much pressure coming out that it would
blow the ventilation bag to the ground. Tr. 331. Another reason for turning the fan off is to talk
on the phone. Tr. 331. The fans that are so loud that they must be turned off in order to have a
conversation in the crosscut. Tr. 331. Finally, he stated that the fans would be turned off in
order to repair or install ventilation bags. Tr. 331. He stated that it would not be practical to
erect a barricade every time a fan was turned off because it would be very time-consuming and,
in his opinion, is not necessary. Tr. 331.

Van Kirk acknowledged that Respondent does use signs that say “unventilated area.” Tr.

331. He testified that these signs are typically used when the ventilation infrastructure, such as
     the control box or fan, has been removed and it is an inactive area, but this would not be used in
     a scenario where the fan is simply turned off. Tr. 331, 332. He confirmed that an auxiliary fan
     and ventilation bag would be located in every active heading, but stated that they would not
     always be present in heading that were short term inactive. Tr. 333. He testified that they may
     be absent for planning purposes or used in a different area of the mine if needed, but a snow
     fence would be erected with an “unventilated area” sign posted. Tr. 334.

LAW AND REGULATIONS

30 C.F.R. § 57.8528 states, “Unventilated areas shall be sealed, or barricaded and posted
against entry.”

30 C.F.R. § 57.2 clarifies the meaning of “barricaded” as, “obstructed to prevent the
passage of persons, vehicles or flying materials.”

In interpreting the meaning of a statute, the Commission has recognized that “[w]hen the
meaning of the language of a statute or regulation is plain, the statute or regulation must be
interpreted according to its terms, the ordinary meaning of its words prevails and it cannot be
expanded beyond its plain meaning.” Western Fuels-Utah, Inc., 11 FMSHRC 278, 283 (Mar.
1989); Consolidation Coal Co., 18 FMSHRC 1541, 1545 (Sept. 1996). It is a cardinal principle
of statutory and regulatory interpretation that words that are not technical in nature “‘are to be
given their usual, natural, plain, ordinary, and commonly understood meaning.”’ Western Fuels,
11 FMSHRC at 283 (citing Old Colony R.R. Co. v. Commissioner of Internal Revenue, 284 U.S.
552, 560 (1932)). It is only when the plain meaning is doubtful that the issue of deference to the
Secretary's interpretation arises. See Pfizer Inc. v. Heckler, 735 F.2d 1502, 1509 (D.C. Cir. 1984)
(deference is considered “only when the plain meaning of the rule itself is doubtful or
ambiguous”) (emphasis in original); Azno Nobel Salt, Inc., 21 FMSHRC 846, 852 (Aug. 1999).

A violation is significant and substantial (“S&S”) “if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981). To establish an S&S violation, the Secretary must prove: “(1)
the underlying violation of a mandatory safety standard; (2) a discrete safety hazard - that is, a
measure of danger to safety - contributed to by the violation; (3) a reasonable likelihood that the
hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in
question will be a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984)(footnote omitted); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir.
1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1998)(approving the
Mathies criteria). The Commission has further found that “an inspector’s judgment is an
important elements in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing Nat’l Gypsum, 3
FMSHRC at 825-826). An evaluation of the reasonable likelihood of injury should be made
assuming continued mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985)(quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).

In Emery Mining, the Commission determined that an unwarrantable failure is
“aggravated conduct constituting more than ordinary negligence.” 9 FMSHRC 1997, 2001 (Dec.
1987). Unwarrantable failure is characterized by such as conduct as “reckless disregad,”
“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. At 2003-2004; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek
Coal, Inc., 52 F.3d at 136 (approving the 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’d on 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
1998). 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. Consolidation Coal
Co., 22 FMSHRC at 353.

ISSUES

Did Respondent violate 30 C.F.R. § 57.8528 so as to justify the issuance of Order No.
6482484 pursuant to 30 U.S.C. § 104(d)(2) of the Act?

CONTENTIONS OF THE PARTIES

The Secretary contends that Respondent’s mere use of a rope with a sign stating “Danger,
heading inspection required” in an inactive heading is a violation of 30 C.F.R. § 57.8528. This is
based on the Secretary’s belief that these actions neither meet the definition of “barricade” found
in 30 C.F.R. § 57.2 nor meet the requirements of a sign posted against entry as contemplated by
the regulation. She further argues that this violation is significant and substantial because it
could cause fatal accidents if miners were to be overcome by a lack of oxygen, especially in light
of the accident that occurred in the Miekle Mine in 2009. Finally, she asserts that Respondent’s
actions constitute an unwarrantable failure to comply with a mandatory standard because it had
been cited several times in the past, but refused to change its behavior to comply with the
regulation.

Respondent first argues that 30 C.F.R. § 57.8528 is inapplicable because the headings at
issue were not “unventilated areas.” It asserts that this is a non-gassy mine and, further, no work
activity was taking place to create toxic gases. It further argues that the geology of the mine
allows for the natural migration of air due to the main shaft fan running, causing air to sweep the
faces of the headings. Second, it contends that the auxiliary fans and vent bags were in place and
all that had to be done was to untie the vent bags in the South heading and turn on the fan if work
was to be done in the cited area. Third, it argues that the rope barricade was sufficient because
even a snow or chain link fence could not stop a miner from entering the area if he or she wanted
to enter. Finally, it argues that the Secretary’s interpretation of the standard is unworkable, less
safe, confusing and arbitrary and that it is inconsistent with MSHA’s regulatory history and
scheme as a whole.

DISCUSSION AND CONCLUSIONS

1. S&S Designation

The undersigned concludes that this violation is S&S, but not an unwarrantable failure to
comply with a mandatory safety standard. In first determining that the violation is S&S, the four
criteria under Mathies must be examined. The first criterion of Mathies, a violation of a safety
standard, is evident. 30 C.F.R. § 57.8528 explains that an unventilated area must be sealed or
barricaded and posted against entry. Because the auxiliary fan was turned off and the ventilation
bags were tied off, the undersigned concludes that the area was unventilated. Therefore, it should
have been either sealed off or barricaded and posted against entry.

The plain and unambiguous definition found in 30 C.F.R. § 57.2 states that a “barricade”
must be sufficient to prevent vehicles, persons or flying materials. A single rope strung from rib-to-rib is incapable of preventing any of the items listed in the definition from entering the
heading. Further, the sign made no mention that entry was prohibited or that the area was
unventilated. Instead, it stated only that a heading inspection was required. Since any
“experienced” miner can perform the heading inspection and air quality tests are not mandatory,
this signage is not sufficient. Tr. 257. Under this analysis, the violation of a safety standard is
clear.

Under the second criterion, a discrete safety hazard must be contributed to by the
violation. By employing this insufficient method of “barricade” and signage, the employer is
contributing to the chance that a miner will underestimate the level of danger, access the area and
be overcome by noxious air or a lack of oxygen.

The third criterion under Mathies requires that the hazard contributed to must be
reasonably like to result in injury. The undersigned finds that the following facts contribute to
the hazard: the inferior barricade of the heading, the signage stating only that a heading
inspection was required, the auxiliary fan in the “off” position and the ventilation bags tied up to
redirect airflow to working areas of the mine. The undersigned finds that this confluence of
factors contributed to the hazard of miner being overcome by noxious air or a lack of oxygen and
is reasonably likely to result in an injury. Although there is agreement that there are legitimate
reasons for the ventilation bags being tied off, the Act demands that these areas be barricaded and
posted against entry to avoid the possibility of a miner walking, whether intentionally or
unintentionally, into an unventilated heading.

In meeting the fourth criterion of the occurring injury being of a reasonably serious
nature, it is clear that if a miner was receiving insufficient level of oxygen to the brain, serious
injuries would reasonably likely occur. Commission precedent regards the dangers of low levels
of oxygen as “well-known” and obvious. See Kelly Creek Resources, Inc., 19 FMSHRC 457,
462 (Mar. 1997).

In arguing that the injury is not reasonably likely to occur, Respondent states that 30
C.F.R. § 57.8528 has been misapplied to its Midas Mine because, first, the mine is non-gassy
and, second, the areas are ventilated whether the auxiliary fan is on or not due to the natural
migration of air through the mine. The undersigned does recognize that the fact that a mine is
non-gassy is a mitigating factor in determining whether a serious injury is reasonably likely to
occur. The mine itself may not emit gases; however, Respondent runs diesel and other
equipment in the mine, which do emit combustible gases that can build up over time in
unventilated areas.

To illustrate its second argument, Respondent points to the gas readings taken by
Guardipee during his inspection of the Midas Mine. Although Guardipee’s readings show
sufficient oxygen and no measurable combustible gases, several facts and opinions weaken this
argument. Depo. Tr. 69; Ex. A, pg 6. First, the Commission has acknowledged that the
conditions in a mine can change unexpectedly. See Cumberland Coal Resources, LP, 28
FMSHRC 545, 553 (Aug. 2006) Second, Guardipee explained that air moving through the spiral
would have to enter the heading and then move ninety degrees in either direction to fully
ventilate the heading and this is combined with the testimony of Tolbert who acknowledged that
without the fans on, air would not sweep the face as required. Depo. Tr. 79; Tr. 271. Finally, in
the event of an auxiliary fan going down in the middle of the shift, Castellanos testified that it is
company policy to contact the electricians and pull the miners out of the heading until the
problem is fixed. Tr. 326. This procedure tends to be drastic for areas that are ventilated
anyway. While Respondent’s action in pulling the miners is certainly applauded, it does tend to
weaken any argument that the area is, in fact, ventilated, and Respondent has offered no
explanation as to why it pulls its employees out if those areas remain ventilated. As a further
note, although Tolbert suggested that sufficient air could be circulated through tied off
ventilation bags, the undersigned finds this explanation to be beyond reason.

Moreover, Guardipee’s entrance into the heading is an exact situation where more
descriptive signage is necessary. Guardipee was unaware that the area was not ventilated and
easily bypassed the rope to enter the heading. Although Respondent requires its employees to
undergo a rigorous training course on heading inspections and company policy regarding these
inspections, subcontractors do not receive this luxury and may be inclined to do the same thing
that Guardipee did should there be some need to cross the rope. Tr. 247.

Respondent also asserts that roping off the area is as sufficient as snow fencing or chain
link fencing because none would stop somebody with the intent of crossing it from doing so.
This argument falls flat and completely disregards the plain language and intent of the regulation.
While it is true that any of these barricades would be unlikely to stop the miner absolutely
determined to reach the other side of it, the simple rope is much less likely to stop anything from
breaching it. Anything dropped could roll, bounce, etc., under or over it with little to no chance
of it being stopped. A miner ducking under or stepping over the rope to retrieve the object would
then be in a hazardous position. It is understood that company policy is not to enter the area, but
it seems incomprehensible that Respondent could contend that no miner would violate this policy
to quickly retrieve a lost item. Not only would a snow fence or chain link fence be more likely to
stop the object, it would also give the miner pause before he heedlessly entered the unventilated
area. For these reasons, the undersigned finds that a rope does not qualify as a “barricade” as
contemplated by 30 C.F.R. § 57.2. In consideration of the foregoing, the undersigned finds that a
violation of 30 C.F.R. § 57.8528 does exist and it was correctly designated as S&S.

Respondent finally asserts that the Secretary’s definition of 30 C.F.R. § 57.8528 is
unworkable, less safe, confusing and arbitrary. This is unpersuasive in that a very specific
definition is given for the word “barricade.” Respondent cannot realistically argue that a single
rope or chain is sufficient to stop people, vehicles or flying objects from entering the heading. It
is further unclear how erecting a fence to prevent entrance is less safe than stringing a rope or
chain and Respondent offers no explanation of this. Nor does it explain why is asserts that the
Secretary’s plain language interpretation of the standard is arbitrary. In terms of the unworkable
nature of erecting a fence, it has been recognized that some efficiency may have to be sacrificed
in order to protect the safety of those working in the mine. See Plateau Resources Limited, 5
FMSHRC 605, 607 (1983)(ALJ). Moreover, a time intrusion of less than forty minutes does not
seem like such a substantial burden as to outweigh the life or safety of a miner.

The undersigned does recognize that there is no further definition of the phrase “posted
against entry” found in the regulatory text and this could lead to some confusion, but the plain
meaning of the words lead to the conclusion that the sign should indicate that a miner should not
enter the area. Although Respondent’s full time employees are trained to understand what is
meant by “Danger, Heading Inspection Required,” subcontractors and inspectors do not have the
luxury of this training. This, it seems, would lead to more confusion than blatantly stating “Do
Not Enter.” The undersigned finds that the Secretary’s interpretation of the plain language of the
statute is reasonable.

2. Unwarrantable Failure

In determining whether the unwarrantable failure designation, the undersigned must
consider whether Respondent’s conduct was aggravated and consisting of more than ordinary
negligence. Order No. 6482848 was the seventh violation of 30 C.F.R. § 57.8528 issued to
Respondent since October 2009. Guardipee stated in his notes that he designated the Order as
high negligence on the part of Respondent because, not only had the it been previously cited
under the same regulation before, the accepted methods of barricading an unventilated heading
had also previously been discussed with it. Depo. Tr. 85; Ex. F, pg. 1. As of the date of this
hearing, Respondent had not changed its methods of barricading. Tr. 333.

Respondent witness Tolbert testified that in light of the previous citations, it developed a
policy for barricading in order to give the miners some guidance on the issue. Tr. 237, 238, 280.
In its section entitled “active” headings, it defines an active heading as including those that are
scheduled to be in production or development within four weeks. Ex. 17. To prevent entry, a
rope with heading inspection sign attached to it are hung from the headings. Respondent testified
that to actually barricade each of these headings would be inefficient, time-consuming and
unnecessary. Tr. 334. However, witnesses for Respondent recognized that the erection of a
barricade takes approximately thirty minutes and only a few minutes to take down. Tr. 249, 251.
As noted above, efficiency cannot be weighed against the health and safety of a miner. See
Plateau Resources Limited, 5 FMSHRC 605, 607 (1983)(ALJ). And, as the accident at the
Meikle Mine illustrates, the barricading of unventilated headings is certainly not unnecessary.

Respondent also argues that the auxiliary fans and vent bags were in place and all that had
to be done was to untie the vent bags in the South heading and turn on the fan if work was to be
done in the cited area, the undersigned finds this unpersuasive. While pushing a button to turn
on the auxiliary fan is simple enough, a miner must then get equipment or a ladder in order to
untie the ventilation bag. This amount of time spent in an unventilated heading could result in an
injury to the miner. Because of this, this argument cannot be accepted.

The undersigned is persuaded, however, by Respondent’s argument that it was not on
notice of MSHA’s interpretation of the regulations. In it’s Post-Hearing Reply Brief, Respondent
states that the Secretary argues that at the meeting in Elko, NV, Hirsch gave “operators specific
guidance about what the Western District would accept as a barricade.” From this, it argues not
that it did not understand what a barricade was, but, rather, when a barricade must be used.
Based on its understanding of the guidance given, Respondent argues that it developed policies in
order in an attempt to reduce the amount of citations issued under 30 C.F.R. § 57.8528.
Although Respondent had been previously cited under the standard, the undersigned finds that
Respondent possessed a good faith belief that its policy of roping off headings that were to be
worked in the near future complied with the regulations. Although the undersigned stresses that
Respondent is now on notice, he does not find its conduct to be so aggravated and of such
negligence to justify the Secretary’s finding of an unwarrantable failure.

As a final assessment, the undersigned finds the testimony of Castellanos claiming that
the auxiliary fan was in the on position, but he turned it off in order to be able to talk to
Guardipee to be incredible. Although Respondent argues in its Post-Hearing Brief that this fact
was corroborated by Guardipee, there is no evidence of that. Guardipee testified that the
auxiliary fan was off when they approached the heading. Further, and telling, Castellanos’
testimony was the first time that this issue was ever raised by Respondent. It seems beyond
comprehension that Respondent would be cited for actions taken in an attempt to promote the
efficiency of the inspection and not raise that issue until the second to last witness at hearing.

3. Penalty Assessment

At hearing, Respondent witness Ward testified that all prior citations written under 30
C.F.R. § 57.8528 were assessed between $128.00 and $285.00. Tr. 313. However, the penalty
assessment for Order No. 6482848 is $35,000.00. In determining the appropriateness of the
penalty assessed for this Order, I am bound by to consider the operator’s history of violations, the
size of the operator in comparison to the penalty amount, the operator’s negligence, 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).

Respondent has received six other citations under 30 C.F.R. § 57.8528 since October 14,
2009. The seriousness of the injury that could result from miners entering an area of bad or
insufficient oxygen is grave. However, in an attempt to reduce the number of citations issued
under the standard, Respondent created company policies that it believed complied with the
regulations. While the Secretary carried her burden in proving that the violation was significant
and substantial, the undersigned found that she has not met her burden in proving an
unwarrantable failure. Further, the undersigned finds that an increase in penalty from a previous
maximum of $285.00 to $35,000.00 is excessive. In light of the finding that the Order is not an
unwarrantable failure to comply with a mandatory safety standard, a more reasonable penalty is
$5,000.

ORDER

It is hereby ORDERED that Order No. 6482848 is MODIFIED from a 104(d)(2) order
to a 104(a) citation. It is further ORDERED that Respondent PAY the Secretary of Labor the
sum of $5,000.00 within 30 days of this Decision.

/s/ John Kent Lewis

John Kent Lewis

Administrative Law Judge

Distribution:

Laura C. Bremer, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7th Street, Suite 3-700, San Francisco, CA 94103

Laura E. Beverage, Esq., Jackson Kelly, PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202