Boart Longyear Company

Plain-English summary

Boart Longyear faced three enforcement actions involving a contractor's drilling operation at a Nevada gold mine. Judge Margaret A. Miller upheld a brake-light violation on a flatbed truck but removed the unwarrantable-failure designation and changed it to a section 104(a) citation because repeated repair efforts were mitigating, assessing $8,000. She affirmed a significant and substantial, unwarrantable violation for a drill platform without handrails and assessed $20,900. She also affirmed a significant and substantial, unwarrantable safe-access violation because miners had to step over pipes, hoses, cords, and hot exhaust components, assessing $10,000. The total penalty was $38,900.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.14100(b), 56.11001, and 56.11002
• Outcome: The brake-light order was modified to an $8,000 section 104(a) citation, while two drill-platform violations were affirmed, for total penalties of $38,900.
• Key point: Repair attempts can defeat unwarrantable failure even when negligence remains high, while obvious platform fall and access hazards known to supervisors support aggravated findings.

Full text (FMSHRC public release)

         FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
                                 721 19th STREET, SUITE 443
                                   DENVER, CO 80202-2500
                                303-844-5267/FAX 303-844-5268


                                    October 12, 2012

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS
MINE SAFETY AND HEALTH :
ADMINISTRATION, (MSHA), : Docket No. WEST 2011-1252-M
Petitioner, : A.C. No. 26-00827-252573 Y12
:
v. : Docket No. WEST 2012-676-M
: A.C. No. 26-00827-281166 Y12
BOART LONGYEAR COMPANY, :
Respondent. : Mine: Barrick Cortez, Inc.

                                       DECISION

Appearances: Bryan Kaufman, Office of the Solicitor, U.S. Dept. of Labor, Denver, Colorado
for Petitioner;
Dana Svendsen, Jackson Kelly PLLC, Denver, Colorado for the Respondent.

Before: Judge Miller

   These cases are before me on petitions for assessment of civil penalty filed by the

Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration
(“MSHA”), against Boart Longyear Company (“Boart”) 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”). These
dockets include one violation issued by MSHA under section 104(d)(2) and two violations issued
under section 104(d)(1) of the Mine Act to Boart. The parties presented testimony and
documentary evidence at a hearing held on August 8, 2012, in Salt Lake City, Utah.

    Boart operated as an independent contractor at the Barrick Cortez mine, a large gold

mine, located in Lander County, Nevada. The parties agree that Boart is an operator as defined
by the Act, and is subject to the provisions of the Mine Safety and Health Act. Boart provides
drilling services to various mines and maintains a general office in Elko, Nevada. The history of
assessed violations is admitted as Sec’y Ex. 1. There are three citations and orders at issue in
these two dockets, all of which are related to the drilling rig.

                 I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

a. Order No. 8555555

    On September 16, 2010, Inspector David Reynolds issued Order No. 8555555, pursuant

to section 104(d)(2) of the Mine Act, to Boart for a violation of Section 56.14100(c) of the
Secretary’s regulations. Subsequently, the Secretary moved to plead Section 56.14100(b) in the

alternative. The Secretary’s motion was granted. The two alternative standards that have been
pled require the following.

           (b) Defects on any equipment, machinery, and tools that affect
           safety shall be corrected in a timely manner to prevent the creation
           of a hazard to persons.

           (c) When defects make continued operation hazardous to persons,
           the defective items including self-propelled mobile equipment
           shall be taken out of service and placed in a designated area posted
           for that purpose, or a tag or other effective method of marking the
           defective items shall be used to prohibit further use until the
           defects are corrected.

30 C.F.R. § 56.14100(b) and (c). The citation described the alleged violative condition as
follows:

           The brake lights located on the Ford flatbed pipe truck #-64, were
           not being maintained. The brake lights failed to function when
           tested. This condition has been reported since 09-11-10, on the
           driver’s pre use inspection. Joel Nalley, Driller in charge was
           aware that the brake lights were not working at the start of the
           shift, and failed to remove the truck from service, or tag the truck
           out of service to prevent further use until the brake lights were
           repaired. Joel Nalley engaged in aggravated conduct by his failure
           to take action of a known hazard. This violation is an
           unwarrantable failure to comply with a mandatory standard.

Reynolds determined that a fatal injury was reasonably likely to occur, that the violation was
significant and substantial, that one employee was affected, and that the negligence was high.
He designated the alleged violation as an unwarrantable failure. Pursuant to 30 C.F.R. § 100.3,
the Secretary proposed a civil penalty in the amount of $8,421.00 for this violation.

    Mine Inspector David Reynolds has been with MSHA for twelve years and, prior to

becoming a mine inspector, worked for eight years in the gold mining industry. (Tr. 78-79).
Reynolds has been trained to conduct accident investigations and is a MSHA special
investigator. (Tr. 79). On September 16, 2010 Reynolds was at the Barrick Cortez mine to
conduct a regular inspection. (Tr. 82). Reynolds traveled to the active pit area, where mining was
taking place and trucks were being loaded.

     As a part of his routine inspection, Reynolds checked the trucks used at the mine site,

including the Boart truck located in the pit area. (Tr. 81). There were three or four Boart
employees present in the pit. (Tr. 84, 100). The employees were supervised by Joel Nalley, the
driller. (Tr. 85-86). The cited truck, the No. 64 flatbed truck, is primarily used to transport pipes
but is also used to hold water. Sec’y Ex.12; (Tr. 84, 87). The truck was not tagged out or
removed from service, and was ready for operation. (Tr. 86, 88). When Reynolds, with the

assistance of Nalley, tested the brake lights on the truck, the lights failed to function. (Tr. 87,
102). The flatbed truck was located in an area of the pit where other vehicles were operating,
including large haul trucks that carry 300 tons of ore. (Tr. 88, 98). Reynolds testified that the
large haul trucks have a number of blind spots, and are difficult to stop thereby creating a
dangerous situation. (Tr. 88-89).

     Reynolds testified that he spoke with Nalley about the faulty brake lights and recorded

the conversation in his notes. (Tr. 90). Reynolds explained that, on the day of the inspection, he
learned that the operator had been having a problem with the brakes on the truck. Namely, the
lights had been repaired twice after it was discovered during a pre-operational check that they
were not working. (Tr. 91, 100). Nalley confirmed during his testimony that he that he had
repaired the lights on at least two occasions prior to the issuance of the citation. Reynolds
testified that he asked to see the preshift inspection reports and, based on such, determined that
the brakes were not working on September 15th or 16th. (Tr. 102). Nevertheless, the truck was
used on the15th, and, on the 16th the truck was loaded with equipment while the mine prepared to
move the rig to another spot. (Tr. 91-92, 98). Reynolds confirmed this understanding on cross
examination. Reynolds reviewed the maintenance book for the truck and observed that the pre-
use examination on the day of the inspection, September 16th, indicated the lights were not
working. (Tr. 93). Reynolds testified that Nalley had knowledge of the non-operational status of
the lights on that day. (Tr. 93). According to Reynolds, Nalley was prepared to use the truck in
spite of the non-operational brake lights. Moreover, Reynolds explained that the brake problem
had been recorded in the mine books since September 11th. (Tr. 91).

    Reynolds testified that his fear was that, without the brake lights being operational, any

vehicle following the flatbed truck or traveling behind it would not be aware that the truck was
stopping. If the flatbed truck stopped in front of a haul truck without the brake lights working,
the haul truck would have a difficult time stopping and could collide with the smaller flatbed
truck. (Tr. 94). If such a collision occurred, the flatbed truck would be crushed, resulting in a
fatal accident. (Tr. 94-95).

    Joel Nalley, has worked for four years as a driller and has been with Boart for a total of

nine years. (Tr. 109). His recollection of the truck incident is very different from that of
Reynolds. Nalley testified that he did not conduct a preoperational inspection of the No. 64 truck
on September 16th, as alleged by Reynolds, and he was not aware of the non-working brake
lights. (Tr. 112). Nalley was present when Reynolds tested and observed that the brake lights on
the flatbed truck were not functioning. He explained that this vehicle is used as a water truck and
to haul pipe. (Tr. 120). Nalley testified that, beginning on September 11, 2010, the truck had
problems with its brake lights. (Tr. 115). When the defect was discovered on September 11th, the
truck was tagged out and he replaced the bulbs and entire tail light assembly. (Tr. 115, 125).
Nalley did not inspect or operate the flatbed truck on the 12th. (Tr. 116). However, when he
conducted a preoperational test of the truck on the 13th, he again found that the brake lights were
defective. (Tr. 116). It took Nalley approximately two hours to repair the brake lights on that
day. (Tr. 118). In both instances Nalley noted in the pre-op book that he had repaired the brake
lights. Nalley explained that, although Reynolds reviewed the book, the mine destroyed the
preoperational book, as it is allowed to do, without producing pertinent pages related to this

violation. While Nalley had previously made the repairs to the brake lights on his own, he called
a mechanic to make the repair after the citation was issued. (Tr. 132).

    Nalley testified that he did not operate the truck on the 14th or 15th and, therefore, he did

not conduct a preoperational inspection on either day. (Tr. 119-120). He further testified that he
did not tell Reynolds he used the truck on the 15th. (Tr. 120). Moreover, Nalley denies that he
told Reynolds he had completed his check of the truck for the shift on September 16th and,
further, denies that he was aware of any defects. Nalley agreed that Boart was in the process of
moving the rig out of the pit that day and that the No. 64 flatbed truck was next in line to move.
(Tr. 125). However, Nalley testified that he had not completed the preoperational check, which
he would have conducted prior to moving the truck. (Tr. 124).

    Finally, Nalley testified that it was unlikely that this flatbed truck would be in the area of

the haul trucks. Boart normally has a pilot car behind the flatbed truck to provide support when
moving a vehicle as large as the truck. (Tr. 126). The purpose of the pilot car is to watch for
items falling off of the truck. (Tr. 127). Additionally the mine planned to use a spotter vehicle
when moving the truck that day. (Tr. 129). Nalley testified that this part of the mine had berms
that separated the area where Boart was working from the road driven by the haul trucks. (Tr.
128-129). However, on cross examination, Nalley conceded that haul trucks do use the pit area
and the roads crossing it, which includes the roads that the flatbed truck traveled. (Tr. 138). He
also agreed that the non-functioning brake light affected the safety of the truck, that the truck
could be hit from behind, and that the result would be a serious accident and accompanying
injuries. (Tr. 139-140).

   i.      Fact of Violation

    There is an obvious discrepancy in the testimonies of the MSHA inspector and Nalley.

Reynolds took notes, Sec’y Ex. 13, pp. 36 and 37, which support his testimony and his memory
of the conversations and observations at the time the order was issued. For the most part, Nalley
responded “yes” or “no” to answers suggested in the leading questions asked by Respondent’s
counsel. Also, Nalley answered questions in a very narrow manner, referring only to his actions
and not to those of others working in the area or who had driven the truck. Notably, two things
are missing from the transcript and evidence for this proceeding: (1) the pre-op reports that are
in dispute, and (2) the testimony of Seward, who was operating the truck without a working
brake light on the shift just prior to Nalley’s arrival. After responding on direct examination that
the truck is not driven often, Nalley agreed on cross examination that he was told by the
inspector that the truck was driven with the inoperable brake lights prior to Nalley’s arrival on
the day of the citation. Nalley had no notes, and the preoperational book was destroyed. Yet, in
response to leading, controlled questions, Nalley remembered details from two years ago.
Moreover, Nalley’s testimony was contradictory. On one hand he said he did not tell Reynolds
he had conducted a pre-op of the truck, but, on cross-examination, when asked if he spoke with
Reynolds about the brake lights, he stated that he spoke with Reynolds “[a]fter [he] did [his] pre-
ops., yes.” (Tr. 141). Nalley also explained that he learned from Reynolds that the truck was
observed operating without the brake lights on the night of the 15th. (Tr. 149).

    After carefully observing the witnesses and evaluating their demeanor and testimony, and

given the fact that Nalley’s testimony was almost exclusively leading, I credit the testimony of
Inspector Reynolds in determining the facts related to this violation. I find that, based upon the
testimony of Inspector Reynolds, the brake lights had been tested, were not operational, the truck
was not tagged out, and that the mine was prepared to move the flatbed truck to a new location.
The inoperable brake lights clearly affect the safety of the truck, as any vehicle traveling behind
the large truck would not realize that it was coming to a stop and would easily hit the back of the
truck. Hence, I find a violation of 30 C.F.R. § 56.14100(b).1

   ii.     Gravity

     The Secretary has agreed to amend the order and change the likelihood of occurrence

such that the order is now a non-S&S violation. (Tr. 14-15). The S&S nature of a violation and
the gravity of a violation are not synonymous. The Commission has pointed out that the “focus
of the seriousness of the violation is not necessarily on the reasonable likelihood of serious
injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.”
Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996). I find that, even though the
Secretary has modified the citation to “unlikely”, the violation remains a serious one. This
flatbed truck traveled on the roadway with large haul trucks. The roadway was the only way in
and out of the pit. (Tr. 94). Given that there are large haul trucks on the mine site, and that the
haul trucks may cross paths with, or drive behind, the flatbed truck that was cited, there may well
be an accident due to the inoperable brake lights. When the accident occurs, it will be serious and
the resulting injury will be serious or fatal. As Reynolds explained, he has investigated accidents
that involved haul trucks and the result was a great deal of damage to the smaller truck. (Tr. 97).
I find that the gravity warrants a higher penalty, even if it is not designated as S&S.

   iii.    Negligence and Unwarrantable Failure

  Reynolds found this violation to be the result of high negligence and designated it as an

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

           The unwarrantable failure terminology is taken from section
           104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious
           conduct by an operator in connection with a violation. In Emery
           Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission
           determined that unwarrantable failure is aggravated conduct
           constituting more than ordinary negligence. Id. at 2001.
           Unwarrantable failure is characterized by such conduct as
           “reckless disregard,” “intentional misconduct,” “indifference,” or a
           “serious lack of reasonable care.” Id. at 2003-04; Rochester &
           Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”);

   1
    The Secretary moved to plead in the alternative to include section (b) of this standard.

The motion was granted prior to hearing.

            see also Buck Creek Coal, Inc., 52 F.3d at 136 (approving
            Commission's unwarrantable failure test).

            Whether conduct is “aggravated” in the context of an
            unwarrantable failure analysis 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)
            . . . All of the relevant facts and circumstances of each case must
            be examined to determine if an actor's conduct is aggravated, or
            whether mitigating circumstances exist. Consol, 22 FMSHRC at
            353. Because supervisors are held to a high standard of care,
            another important factor supporting an unwarrantable failure
            determination is the involvement of a supervisor in the violation.
            REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998).

    The unwarrantable designation in this case turns primarily on the supposition that Nalley

had and would operate the flatbed with faulty brake lights. When Reynolds approached Nalley
about the inoperable brake lights, Nalley produced the pre-operation examination book and went
through it with the inspector who, in turn, took notes. Boart destroyed the book prior to giving a
copy to MSHA for purposes of the hearing and, presumably, took no other notes. The notes
made by Reynolds make it clear that Reynolds asked Nalley if the brakes were working at the
time and the response was “no.” Reynolds notes also show that he asked if the brakes were
working the night before the inspection and Nalley responded “no.” Nalley now says that he had
not conducted the pre-operation examination prior to Reynolds arrival on the day of the
inspection, and that he intended to do so prior to operating the truck. Nalley also denies that there
was a problem with the brakes on the shift just prior to his. I credit Reynolds testimony in this
regard and find that Nalley had conducted a pre-op check and found the brake lights to be
inoperable, yet failed to tag out the equipment or take it out of service. Again, I credit Reynolds,
based upon the facts presented, the notes that Reynolds kept, and the fact that Nalley’s testimony
was very limited and controlled by leading questions.

     With regard to factors needed to be addressed in the context of an unwarrantable failure

analysis, I find that the Secretary has not met her burden. While I believe that Reynolds account
of September 16th is accurate, there is still an element of misunderstanding in his conversation
with Nalley. It is likely that the condition of the brake lights existed for at least the shift prior to
Nalley’s, and Reynolds believed that Nalley would have operated the truck without the brake
lights if the citation had not been issued. Nalley denies that he would have operated the flatbed

truck with faulty brakes. That statement has some basis in the fact since the mine had been
making efforts, albeit ineffective, to find a permanent solution to the brake light problem.

    The Secretary argues that the violation is unwarrantable because it had lasted since

September 11, the time of the first repair, and that the flatbed had been used during that time
period. (Sec’y Br. 17) The argument fails to convince me that the violation was unwarrantable
because there is no evidence that the truck was driven with faulty brake lights during that time
frame. The inspector could not say that the brake lights remained inoperable from September 11
until the shift just prior to Nalley’s. Further, the Secretary fails in her argument that the mine
had been placed on notice since September 11 that extra efforts were needed. Instead, Nalley
believed that the brake lights had been repaired each time they were found defective. While I
agree with Reynolds that Nalley knew of the defective brake lights on September 16th, there is no
evidence that he had the time, or refused, to repair the defect. Nalley had conducted a pre-op and
observed the non-working brake lights when Reynolds arrived and there is no explanation as to
why the truck was not tagged out, but I cannot assume it would have been operated without
repair. While the violation was obvious and the operator had knowledge of the existence of the
violation, there are mitigating circumstances in this case, given that the mine attempted a number
of repairs on the brake lights in the days leading up to the citation. (Tr. 101). Consequently, I
find that the violation was not the result of the operator’s unwarrantable failure to comply and
the violation is more properly designated as a 104(a) citation. However, I do find that Boart
exhibited high negligence and, accordingly, I assess a penalty of $8,000.00.

b. Citation No. 8564140

    On August 5, 2010, Inspector Gerald Killion issued Citation No. 8564140, pursuant to

section 104(d)(1) of the Mine Act, to Boart for a violation of Section 56.11002 of the Secretary’s
regulations. The cited standard requires that “[c]rossovers, elevated walkways, elevated ramps,
and stairways shall be of substantial construction provided with handrails, and maintained in
good condition. Where necessary, toe boards shall be provided.” 30 C.F.R. § 56.11002. The
citation described the alleged violative condition as follows:

           Their (sic) were not handrails provided on the Drill Platform, to
           keep miners from falling off. The Drill Platform is accessed daily
           to make an inspection. The Drill Platform is 59 1/2 inches from
           the ground. In the event that a miner would fall from the Drill
           Platform, an accident with serious fatal injuries could occur. The
           supervisor stated that he has told management, about 2-3 weeks
           ago, that handrails needed to be put on the Drill Platform.
           Management engaged in aggravated conduct constituting more
           than ordinary negligence in that they were aware that handrails
           needed to be installed on the Drill Platform. This violation is an
           unwarrantable failure to comply with a mandatory standard.

Killion determined that a fatal injury was reasonably likely to occur, that the violation was
significant and substantial, that one employee was affected, and that the negligence was high.
He designated the alleged violation as an unwarrantable failure. Pursuant to 30 C.F.R. § 100.5

the Secretary specially assessed a civil penalty in the amount of $20,900.00 for this alleged
violation. At the hearing the Secretary moved to plead in the alternative to allege a violation of
30 C.F.R 56.11027. The motion was granted but the decision is based upon the standard
originally cited.

    Inspector Gerald Killion has worked for MSHA since 1999. (Tr. 22). Prior to becoming a

mine inspector, Killion worked for 24 years in the mining industry, including at a Newmont gold
operation. (Tr. 24). On August 5, 2010, in response to a complaint received by MSHA
concerning the Boart drilling operation, Inspector Killion traveled to the Barrick Cortez mine to
conduct an inspection of the Boart operation. (Tr. 24-26). During the course of the inspection,
Killion issued several citations and orders, including Citation No. 8564140 for not having
handrails on the drill rig walkway, and a second citation on the same drill rig, discussed infra, for
a lack of safe access to the platform. Both the Barrick mine and the Boart operation at the mine
were operating at the time of the inspection, and Boart had miners working at the site. (Tr. 26).

    Upon arriving at the drill platform2 Killion noticed an area along the side of the raised

area, approximately 50 to 60 feet long that appeared to be a walkway. (Tr. 38-39, 68). Killion
learned from Guadalupe Jacobo, the supervisor for Boart, that miners walked the area to conduct
preshift examinations, perform maintenance, and make repairs on the drill rig. (Tr. 27, 31).
Jacobo explained to Killion that there is a preshift inspection once each shift, that Boart operates
two twelve hour shifts, and that, as a result, the area is walked at least twice every 24 hours. (Tr.
31, 34-35). Nothing on the drill rig was locked or tagged out. (Tr. 28). It was obvious to Killion
that anyone could access the rig and walk along the sides of the rig, until turning to the
mechanical components in the center.

     Killion testified regarding Sec’y Ex. 4, which consists of three photographs of the drill

rig, including the area along the side of the platform, the drill, and the mechanical components of
the drill in the center of the platform. (Tr. 31-32, 38). The second photograph shows that the area
where miners walked was roughly 61 inches above the ground. Sec’y Ex. 4 p. 2.; (Tr. 32).
Killion testified that he observed footprints, traveling in both directions, in the subject area. (Tr.
31, 33-34). While there was a working platform surrounded by handrails for the operator of the
drill at one end of the platform, the subject area described by Killion did not have guards or
handrails to prevent a miner from falling from that area. (Tr. 40, 71). Killion stated that there was
nothing to hold onto along the entire length of this raised area, and the cited area was exposed to
rain and other elements. (Tr. 33). Moreover, Killion explained that there were no caution signs or
barricades to keep miners off of the elevated area. (Tr. 36). Notably, Boart had another rig in the
area which did have handrails around the perimeter. (Tr. 37).

   Killion testified that Jacobo explained to him that he had discussed the need for handrails

with Dan Kohlman, Jacobo’s supervisor, two to three weeks prior to the date of this inspection.

   2
      I use the term “platform,” which was used by the Secretary, to describe the cited area.

The area was described in various terms throughout the course of the hearing. The drill is
mounted on this large platform, and the drill and platform together are referred to as the drill rig.
I do not find this to be a “working platform”.

(Tr. 31, 35-36). Killion took notes regarding his dialogue with Jacobo and, at hearing, was very
clear about the nature of the conversation. (Tr. 35).

    Killion testified that he feared that someone walking along the edge of the platform

would lose their footing and fall the approximately five feet to the ground. (Tr. 32). He explained
that a falling miner would land on the hard ground, or on an object on the ground, resulting in
severe injuries, including broken bones. (Tr. 53). Killion understood that the mine was prepared
to put railings on the walkway, but had decided to wait and do so when the rig was moved back
to the shop in two or three weeks. Killion has no doubt that the violations were obvious. (Tr. 55).
It was clear that persons had been walking along the edge of the platform and there was no
handrail or other guard to prevent the miners from falling. (Tr. 55).

     Jacobo, a rig supervisor, has worked for Boart for sixteen years and has worked on and

off at the Barrick site for the past fifteen years. (Tr. 153, 156). Jacobo had a different recollection
of his conversation with Inspector Killion. He explained that, although he discussed installing
handrails with a supervisor, as he told Killion, he did not believe the handrails were necessary
because the area was not a walkway and the men working in the area were trained where to walk
and how to access the drill. (Tr. 171, 182). However, he was told by Barrick that handrails may
be necessary along the edge of the platform. (Tr. 178). Jacobo stated that the drill rig has been
used at various mine locations and it had not been cited by MSHA in the past. (Tr. 159). This
drill rig had been on this Barrick site for four weeks prior to the citation in August, 2010. (Tr.
162-163). He explained that the drill rig is brought to mine sites on a large trailer, and then
moved off of the trailer and set on jacks. (Tr. 160-161). The rig remains until the job is complete.

    Jacobo testified that the walking surface on the drivetrain portion, the area that the

inspector refers to as the drill rig, is a non-skid steel deck. Jacobo explained that he regularly
refers to the MSHA standards and it is his belief that handrails were not necessary because the
rig was not six feet or more above the ground3. (Tr. 163, 167-168). Jacobo emphasized that
Boart was in compliance because the area along the sides of the platform was not a walkway.
Instead, he explained, the miners climb up from a ladder on either side of the platform, go
directly to the center of the rig to conduct checks and perform maintenance, and they have no
need to walk along the edge. (Tr, 169).

    Jacobo disagreed with Killion’s assessment that miners would fall and, instead, testified

that no one would fall and there would be no serious injuries. (Tr. 168). He explained that the
miners are well-trained, know where they can safely walk, and know the correct route to follow
to reach the drill to perform the checks and maintenance. (Tr. 168-170). He has never known
anyone to fall off the drivetrain portion of the drill rig, nor has he heard of anyone being injured
while accessing the drivetrain area. (Tr. 169-170, 194). Jacobo asserted that miners don’t
regularly work on the drivetrain portion and, instead, mostly work on the work platform located
at the end of the rig. (Tr. 168-169). However, Jacobo agreed that miners do preshift

   3
       The six foot measurement is an OSHA requirement or guideline.

maintenance, grease drivelines, and check the oil on the large drill located on this platform. (Tr.
169). The miners access the raised bed by ladder and on one side, step over the pumps and cables
to reach the machines in the middle. In his view, this is the only area on the platform that is
traveled.

    Dan Kohlman, the operations manager for Boart, works out of the company’s Elko office

and testified that Boart has owned the rig since 1992. (Tr. 196). While Kohlman has been the
operations manager for the past 11 years, he has been with Boart for over 20 years. (Tr. 196). As
operations manager, he supervises 8 individual including Jacobo. (Tr. 198). Kohlman’s
testimony generally mirrored that of Jacobo, but Kohlman had less knowledge of the rig given
that his office is in Elko near the shop and not at the mine site. (Tr. 199). The testimony of both
witnesses was in the form of one syllable responses to leading questions. Accordingly, I do not
find Jacobo’s or Kohlman’s testimony particularly credible.

    Kohlman agreed that, roughly a week after the rig went to Barrick Cortez, he had a

discussion with Jacobo about the need for handrails. (Tr. 205). Kohlman and Jacobo discussed
that there was no need for the handrail, but they were told that MSHA was unreasonably citing
operators for failure to have such rails, so they determined that the parts, which are not normally
stocked, would be ordered and the rails installed when the drill was returned to the shop. (Tr.
179, 205). At the time the citation was issued, the parts for the rail had arrived. (Tr. 205-206).

   i.      Fact of Violation

   I find that the cited area is a walkway and the lack of handrails is a violation of the cited

standard. While the Secretary’s regulations do not define “walkway,” the regulations do define
“travelway,” which has been equated with a “walkway.” The Secretary defines “travelway” as a
“passage, walk, or way regularly used and designated for persons to go from one place to
another.” 30 C.F.R. § 56.2. When determining whether an area is a travelway under the
standard, the Commission has held that “the relevant question is whether the areas in question
were used, or intended to be used, for walking.” Alan Lee Good, 23 FMSHRC 995, 1000 (Sept.
2001). While Jacobo denies that the area is a walkway, the evidence demonstrates that it is used
as such. Killion observed footprints in the area along the edge of the platform. He was also told
that miners access the area and use it to travel the length of the drill rig during the preshift
examination. The area is also used as a walkway as miners access the platform from either side
by way of a ladder, and walk along the edge until turning in to the center of the platform to
perform checks and maintenance on the drill and motors. I credit the testimony of Killion that,
upon observing the area, it was obvious that miners walk along the edge and side of the platform
to conduct inspections and to reach other areas of the drill rig. There were not handrails, signs,
barricades or guards to prevent someone from slipping and falling off of the platform while
walking along its length.

     Boart argues that since the drill rig has been used for many years and was not previously

cited, it did not have fair notice of the handrail requirement. This particular piece of equipment is
unique in that it is moved from mine to mine, and, given the time it was scheduled to be at this
mine, it may be moved as often as every few weeks. Even so, Jacobo recalls that no other
inspector has taken issue with the lack of rails on the platform. However, there is no evidence

that an inspector observed the rig while at a mine or that an inspector noticed the missing
handrails and moved on without issuing a citation. Instead, this drill rig is moved from location
to location and may be set up for only a few weeks at time, making it difficult for an inspector to
locate and inspect.

   In Alan Lee Good, 23 FMSHRC 995, 1004-1005 (Sept. 2001) the Commission stated the

following:

           When “a violation of a regulation subjects private parties to
           criminal or civil sanctions, a regulation cannot be construed to
           mean what an agency intended but did not adequately express.”
           Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir.
           1982), quoting Diamond Roofing Co. v. OSHRC, 528 F.2d 645,
           649 (5th Cir. 1976). To determine whether an operator received
           fair notice of the agency’s interpretation, the Commission asks
           “whether a reasonably prudent person familiar with the mining
           industry and the protective purposes of the standard would have
           recognized the specific prohibition or requirement of the standard.”
           Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). . . .

           In applying the reasonably prudent person standard to a notice
           question, the Commission has taken into account a wide variety of
           factors, including the text of a regulation, its placement in the
           overall regulatory scheme, its regulatory history, the consistency of
           the agency’s enforcement, and whether MSHA has published
           notices informing the regulated community with ““ascertainable
           certainty” of its interpretation of the standard in question. See
           Island Creek Coal Co., 20 FMSHRC at 24-25; Morton Int’l, Inc.,
           18 FMSHRC 533, 539 (Apr. 1996); Ideal Cement Co., 12
           FMSHRC at 2416; U.S. Steel Mining Co., 10 FMSHRC 1138,
           1141, 1142 (Sept. 1988); Al. By-Prods. Corp., 4 FMSHRC 2128,
           2131-32 (Dec. 1982). Also relevant is the testimony of the
           inspector and the operator’s employees as to whether certain
           practices affected safety. Ideal Cement Co., 12 FMSHRC at 2416.
           Finally, we have looked to accepted safety standards in the field,
           considerations unique to the mining industry, and the
           circumstances at the operator’s mine. [FN1] Island Creek Coal
           Co., 20 FMSHRC at 24-25; BHP Minerals, 18 FMSHRC at 1345,
           citing U.S. Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983).

    Of all of the factors listed above, the operator relies most heavily on the lack of prior

enforcement of this regulation. While Jacobo testified that the lack of handrails had never been
cited, he was not able to be more specific. Kohlman could only say that he was not aware of any
citations that were issued for the lack of handrails. No witness for the operator could explain if
an inspector had inspected the rig, had seen footprints, questioned Boart about the walkway, and
had determined that there was no violation.

     As the above-cited cases indicate, prior inconsistent enforcement is only one of several

factors that the Commission considers in evaluating whether an operator has received fair notice
of the Secretary’s interpretation of an ambiguous regulation. Guarding is traditionally the
standard in which the “fair notice” defense is raised and has been discussed at length in
Commission decisions and other industry documents. The lack of handrails on a walkway is
similar to a guarding violation and also has been discussed at length. In fact, based upon
Jacobo’s testimony, Boart learned through conversations with Barrick that the drill rig should
have handrails and, in fact, other rigs owned by Boart do have rails along the sides where miners
can and do easily travel the length of the rig. The need for rails was obvious. Even if the
walkway was not used regularly, it was used at least once per shift according to Killion and the
danger was obvious. Based on such findings, I have determined that a reasonably prudent person
familiar with the mining industry and the protective purpose of the standard would have
understood that a handrail was required along the walkway on the rig. Given my above analysis,
I find that the Secretary has established a violation of the cited standard.

   ii.     Significant and Substantial

    Given the fall hazard associated with this violation, Killion designated it as significant

and substantial. A significant and substantial (“S&S”) violation is described in section 104(d)(1)
of the Mine Act as a violation “of such nature as could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A
violation is properly designated S&S “if, based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). The Commission has explained that:

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

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

    The Commission has long held that an S&S designation must be based on the particular

facts surrounding the violation, and viewed in the context of continued mining operation.
Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130
(Aug. 1985). The Commission and courts have also observed that an experienced MSHA
inspector’s opinion that a violation is significant and substantial is entitled to substantial weight.

Harland Cumberland Coal Co., 20 FMSHRC, 1275, 1278-79 (Dec. 1998); Buck Creek Coal
Inc., 52 F.3d 133, 135 (7th Cir. 1995).

     I have found that there is a violation of a mandatory standard and that the violation

created a discrete safety hazard, that of falling from a platform five feet above the ground and
striking the ground or a hard object on the ground. A fall would lead to a serious injury,
including broken bones or a head injury. The question then becomes, given the circumstances, is
it reasonably likely that the lack of handrails will result in a fall and a subsequent injury. The
mine operator argues that the miners are trained to not walk along the edge of the platform, and,
instead, to walk to the center between two machines to conduct checks and maintenance. The
Secretary, on the other hand, argues that miners do a preshift examination and walk along the
edge of the platform in accessing other areas of the drill rig. Further, she argues, the subject area
is open to the elements, may become wet and slippery, and there are cables and other obstacles to
avoid when walking along this area. Killion reasoned, that given his experience and background,
that if a miner were to fall, they would suffer serious injuries, including broken bones.

    As in the case of guarding violations, the normal actions of miners must be considered in

determining whether a violation is S&S. In discussing the injuries related to guarding in
Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984), the Commission took into
account “inadvertent stumbling or falling, momentary inattention, or ordinary human
carelessness” and explained that “in related contexts, we have emphasized that the constructions
of mandatory safety standards involving miners behavior cannot ignore the vagaries of human
conduct.” See, e.g., Great Western Electric, 5 FMSHRC 840, 842 (May 1983); Lone Star
Industries, Inc., 3 FMSHRC 2526, 2531 (Nov. 1981). Applying this test requires taking into
consideration all relevant exposure and injury variables, e.g., accessibility of the miners to the
walkway, the work areas, ingress and egress, work duties, and, as noted, the vagaries of human
conduct.

     I find that the lack of a handrail along a fifty to sixty foot walkway, where miners travel

in all types of weather, at least once per shift, is a significant and substantial violation. It is
reasonably likely that, given that this condition would remain uncorrected for the remainder of
the job, a miner walking along the area would stumble and fall off of the platform. Given the
daily exposure, the accessibility to the walkway, and the various work duties required on the
platform, it is reasonably likely that the violation would lead to an injury and that the injury
would be serious. Accordingly, I find that the violation was S&S.

   iii.    Negligence and Unwarrantable Failure

    Killion determined that the failure to provide handrails was the result of Boart’s high

negligence and unwarrantable failure to comply with the mandatory standard. Killion explained
that the primary reason he determined that the violation was unwarrantable was because
management knew of the problem and failed to remedy it. He understood from Jacobo that
Jacobo had discussed the need for handrails with Kohlman several weeks prior to the citation,
and the materials to provide the rails were at the shop, yet the handrails had not been installed.
(Tr. 170-172). Jacobo denies that he told the inspector that he was aware of the need for
handrails and instead testified that he told Killion that they had discussed handrails and had a

plan in place to install them. (Tr. 172-175). Kohlman indicated that, since Boart didn’t believe
they needed the handrails, the installation could wait for several weeks until the job was
complete and the drill rig was returned to the shop where it was easier to install the handrails.
However, Kohlman had little knowledge about the actual worksite and he was not aware that
there was another rig at the location that did have handrails. Nevertheless, he did explain that
other rigs, including truck rigs, are higher off of the ground and, for that reason, those pieces of
equipment have handrails. (Tr. 212-213).

    I find that the mine was aware of the need for handrails, that the violation had existed for

several weeks, and that, although Boart had ordered the parts, it did not follow through and,
therefore, made little effort to abate the violation. Because supervisors are held to a high standard
of care, another important factor supporting an unwarrantable failure determination is the
involvement of a supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar.
1998) (Commissioner Marks concurring in part and dissenting in part).

    Killion also relied upon the fact that the violation was obvious, that it would lead to a

serious injury and that it had existed since the rig was brought to the property four weeks prior to
the citation. (Tr. 55). Killion testified that he observed the violation immediately upon his arrival
to the Boart working area at the mine. The violation was also obvious to Barrick, who, through
conversations, informed Boart that handrails were needed along the walkway at the edge of the
platform. While there is no discussion about Boart having been put on notice that greater efforts
were necessary for compliance with regard to this violation, the other aggravating factors have
clearly been demonstrated and, therefore, I find the violation to be unwarrantable and the result
of high negligence. I assess the proposed penalty of $20,900.00.

c. Order No. 8564141

    On August 5, 2010, Inspector Killion issued Order No. 8564141, under section 104(d)(1)

of the Mine Act, to Boart for a violation of Section 56.11001 of the Secretary’s regulations,
which requires that“[s]afe means of access shall be provided and maintained to all working
places.” 30 C.F.R. § 56.11001. The citation described the alleged violative condition as follows:

           A safe means of access was not being provided on the Drill
           Platform. Miners have to access the platform by stepping over
           hoses, pipes, lines, etc., causing slip, trip and fall injuries. Miners
           access this area daily to make an inspection. In the event that a
           miner slips, trips, or falls, an accident with injuries such as sprains,
           strains, contusions, lacerations and/or broken bones could occur.
           The supervisor stated that he has told management 2-3 weeks ago
           that a safe access needs to be provided in this area. Management
           engaged in aggravated conduct constituting more than ordinary
           negligence in that they were aware that a safe access needed to be
           provided. This violation is an unwarrantable failure to comply with
           a mandatory standard.

Killion determined that an injury was reasonably likely to be sustained and that such an injury
could reasonably be expected to result in lost workdays or restricted duty, that the violation was
significant and substantial, that one employee was affected, and that the negligence was high.
He designated the alleged violation as an unwarrantable failure. Pursuant to 30 C.F.R. § 100.5
the Secretary specially assessed a civil penalty in the amount of $7,300.00 for this alleged
violation.

    After viewing the walkway described above, Killion traveled to the other side of the drill

rig and observed a ladder that was used to access the drill rig from that side. (Tr. 42). At the top
of the ladder he observed a pathway that was used by miners to access the equipment and
conduct maintenance on that side of the rig. (Tr. 42-43). The path required miners to step over
hoses, metal pipes, and grids to make their way to the middle of the platform to service the
equipment. (Tr. 42-43). Killion testified that photographs included in Sec’y Ex. 7 accurately
depict the area both before and after the condition was corrected. (Tr. 42-43). The photos in the
exhibit show exhaust pipes that are hot to the touch that must be navigated to reach the machines.
(Tr. 45). There are few handholds to use while negotiating the gauntlet of pipes and hoses. (Tr.
45). Killion asked Boart personnel how they conduct the preoperational inspections and one of
the miners, as well as Mr. Jacobo, indicated to Killion that they travel the path across the pipes,
tubes and hoses. (Tr. 46, 69-70). Footprints on the hoses confirmed that someone had been
walking in the area. (Tr. 45). Killion believed that walking over pipes and hoses did not
constitute a safe access to the machines that were regularly serviced and repaired. The third
photo of Sec’y Ex. 7 depicts the area after the condition was abated by placing a flat grid
walking surface over the obstructions, thereby providing a much safer means of access. (Tr. 43).
Based on his observations, Killion issued Order No. 8564141 as a 104(d)(1) order for unsafe
access.

    Jacobo testified that it was his belief that the access was not unsafe. He explained that,

when miners climb up the ladder and on to the rig, he tells them to watch out for hoses, hot
surfaces and other tripping hazards. (Tr. 176, 188-189). They are trained and instructed to walk
carefully and he believes that there are things to hold onto as they “position themselves.” (Tr.
176). He agrees that miners could possibly grab a hot area and there are some pieces of metal
they could come in contact with, but he denies that any of those objects are sharp. (Tr. 190). In
Jacobo’s view, given the thorough training and the constant reminders, there is no problem with
the access.

   i.      Fact of the Violation

    I find Killion to be a credible and experienced witness who was more than capable of

determining when an access is or is not safe. Given his testimony, supported by the photographs
he took, I agree that there was not safe access to the engines and equipment that must be reached
by employees on a regular basis. Jacobo’s and Kohlman’s testimonies were controlled by
leading questions, and I do not find them to be credible. I am not convinced by their notion that
training and instructing miners how to walk over and through hot pipes is a substitute for safe
access to equipment that requires regular attention. Although the mine asserts that the only
reasons to travel in the area shown in Sec’y Ex. 7 p. 1 is to repair machinery, conduct
maintenance, or to get to the center of the machine, there has been no evidence or testimony

presented to indicate that maintenance was being performed, and therefore access required, in
any other manner than as described by Inspector Killion. An employee had to travel on the
narrow area, over hoses, metal pipes and between hot exhaust tubes, often while carrying tools.
Miners access the area each time a preoperational check is performed, which may be each day.
Therefore, I find that Boart did not provide safe access to the working place and accordingly, I
find that the Secretary established a violation of Section 56.11001.

   ii.     Significant and Substantial

    Killion designated the violation as S&S. He observed many areas where miners could

easily slip, trip, fall, and hit their head or other body parts while traversing the area needed to
reach the machines and equipment on the drilling platform. (Tr. 46). Killion observed footprints
on the hoses and pipes and he was told by Jacobo that miners do walk through the area to
conduct preshift inspections and to reach the engines and equipment that require service and
repair. (Tr. 46). In Killion’s view, miners would easily trip and fall while traversing this route.
The result of a fall would be strains, lacerations, burns, and head injuries resulting in lost
workdays or restricted duty. (Tr. 46). Killion also learned that the miners were instructed to
walk carefully between the two exhaust system pipes to reach an area that required greasing.
(Tr. 47). The entire length of those pipes is hot and the area to walk in is not very wide. (Tr. 47-
48).

    Boart asserts that it is unlikely that any miner would be injured climbing the ladder and

making their way to the machines in the center of the platform. According to Boart, the miners
are well trained, and are often reminded of the correct path to take through the hoses and pipes.
The mine also asserts that the area is not often accessed. Yet, Killion observed foot prints on the
pipes and was told by a Boart worker that they are required to climb up and work their way
across the various obstacles on the floor to reach the machines that need regular maintenance and
repair. In fact, the operator agrees that the route described by Killion is the one used by the
miners to access the machines.

     I have found that there is a violation of the mandatory standard as alleged, and I find that

the violation presents a discrete safety hazard, that of slipping, falling or contacting hot pipes.
Each of possible hazardous outcomes would result in an injury of a serious nature. Given that the
miners are required to walk across the pipes, tubes, cords and hoses to make repairs, maintain
and grease the equipment, and conduct inspections, it is reasonably likely that one of them will
trip, slip, or fall while doing so. Moreover a miner who did trip, slip or fall would suffer injuries
of serious injuries, including strains, lacerations, burns, and head injuries. The photographs taken
by the inspector convince me that the area is dangerous to traverse and that it is very likely that
someone will trip, slip and fall. I credit the testimony of Killion that, in spite of any training, the
access way must be safe for those who travel the area. The Commission and courts have
observed that an experienced MSHA inspector’s opinion that a violation is significant and
substantial is entitled to substantial weight. Harland Cumberland Coal Co., 20 FMSHRC, 1275,
1278-79 (Dec. 1998); Buck Creek Coal Inc., 52 F.3d 133, 135 (7th Cir. 1995). For the reasons
discussed above, I find that the violation is S&S.

   iii.    Negligence and Unwarrantable Failure

    Killion determined that the violation was the result Boart’s high negligence and

unwarrantable failure to comply with the mandatory standard. Killion reviewed the violation
history and inspection records and determined that there was no intervening clean inspection and,
therefore, it was appropriate to issue the order pursuant to Section 104(d)(2) of the Act (Tr. 59-
67).

     I conclude that the violation was caused by Boart’s unwarrantable failure to comply with

the standard. Boart demonstrated a serious lack of reasonable care in allowing this unsafe access
to a working area to continue to exist. The Secretary established that the pipes, hot exhaust tubes,
hoses, and the other obstacles blocked the way for miners. These obstacles had existed for some
time prior to inspection, and at least as long as the period of time since the rig was set up at the
Barrick mine, several weeks prior to the inspection. Jacobo was aware of the conditions for some
time, yet he took no action to correct or to eliminate the hazards. Instead, he instructed the
miners to walk carefully. Further, the hazards posed by the conditions were serious, and Jacobo’s
failure in the face of his knowledge of the conditions represented a serious lack of reasonable
care. I find that Jacobo’s failure to correct the conditions, or to otherwise eliminate the hazards
they posed, represented a grievous failure to meet the standard of care required of him as the
supervisor. He was, as the Secretary rightly charges, highly negligent, and his negligence is
attributable to the company. As mentioned above in the context of the handrail violation, given
that supervisors are held to a high standard of care, another important factor supporting an
unwarrantable failure determination is the involvement of a supervisor in the violation. REB
Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998) (Commissioner Marks concurring in part and
dissenting in part).

    The cited conditions were obvious, not only to the inspector, but to the workers at the

mine. The pipes, hoses and tubes were plainly visible before one would ever reach the top of the
access ladder. Jacobo was aware of the hazard, but, rather than correct the condition, he
instructed the miners how to walk through the many obstacles in order to reach the working area.
As to the extent of the violation, the inspector’s testimony is undisputed that the area was
completely covered in obstacles and miners had to be trained to navigate through those obstacles.
The miners frequently accessed the area in order to reach the engines and machinery in the
middle of the platform to conduct maintenance, repairs and inspections. Further, the violation
posed a high degree of danger, given the immediate slip, trip and fall hazard that would cause
miners to end up on top of, or among, hot exhaust pipes. Boart should have had a heightened
awareness that a flat surface, covering the pipes, cords, tubes and obstacles, was necessary to
secure safe access. Given the high degree of danger, extent, and obviousness of the violation,
along with the duration and Jacobo’s knowledge of the obviously violative condition, I find that
a serious lack of care has been demonstrated. I find that the violation was the result of high
negligence and an unwarrantable failure to comply. Accordingly, I assess a penalty of
$10,000.00.

                                     II. PENALTY

    The principles governing the authority of Commission administrative law judges to

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i)
of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties
provide in [the] Act.” 30 U.S.C. § 820(i). The Mine Act delegates the duty of proposing penalties
to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that
it intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty.
29 C.F.R. § 2700.28. The Mine Act requires, that “in assessing civil monetary penalties, the
Commission [ALJ] shall consider” six statutory penalty criteria:

           [1] the operator’s history of previous violations, [2] the
           appropriateness of such penalty to the size of the business of the
           operator charged, [3] whether the operator was negligent, [4] the
           effect on the operator’s ability to continue in business, [5] the
           gravity of the violation, and [6] the demonstrated good faith of the
           person charged in attempting to achieve rapid compliance after
           notification of a violation.

30 U.S.C. § 820(i). The history of assessed violations, Sec’y Ex. 1, shows that Boart has been
cited for similar violations. Boart is a medium sized operator and the mine has not alleged that
payment of the penalty as assessed will inhibit its ability to remain in business. The gravity and
negligence of each violation is discussed above and each violation was abated in good faith. I
therefore, assess the penalties as described above, and summarized below:

WEST 2011-1252-M
Order No. 8555555 $8,000.00 modify to 104(a) citation.

WEST 2012-676-M
Citation No. 8564140 $20,900.00
Order No. 8564141 $10,000.00

                                       III. ORDER

   The three citations and orders included in this decision are affirmed or modified as

discussed herein. Boart Longyear is hereby ORDERED to pay the Secretary of Labor the sum
of $38,900.00 within 30 days of the date of this decision.

                                          /s/ Margaret A. Miller
                                          Margaret A. Miller
                                          Administrative Law Judge

Distribution:

Brian Kauffman, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800,
Denver, CO 80202-5710

Dana Svendsen, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202