Secretary of Labor v. Yenter Companies

Plain-English summary

Yenter Companies performed blasting work at Mountain Cement's Wyoming quarry and contested two enforcement actions arising from a January 2014 blast. Judge Richard W. Manning vacated the blast-site barricade order because the standard offered alternative compliance methods and Yenter attended the site and posted danger signs. He affirmed the post-blast examination violation after a mine employee entered the blast area before the all-clear signal, but found that the unexpected entry did not amount to unwarrantable failure. The Judge modified that citation to section 104(a), reduced negligence to moderate, and assessed a $400 penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 56.6306(a) and 56.6306(g)
• Outcome: The barricade order was vacated, the post-blast citation was modified to section 104(a) with moderate negligence, and a $400 penalty was assessed.
• Key point: A blast site complies with section 56.6306(a) when it uses one of the regulation's alternative protective methods, but work may not resume before a qualified post-blast examination and all-clear.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

Office of
Administrative Law Judges

United States Custom
House

721 19th
Street, Suite 443

Denver, CO 80202-2536

303-844-3577 FAX
303-844-5268

August 28, 2015

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

YENTER
COMPANIES,

Respondent

CIVIL
PENALTY PROCEEDING

Docket No.
WEST 2014-429-M

A.C. No. 48-00007-343734
J2W

Mountain
Cement Company

DECISION

Appearances:               Laura Ilardi Pearson,
Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for
Petitioner;

Rodney L.
Smith, Esq., Sherman & Howard, LLC, Denver, Colorado, for Respondent.

Before:                                    Judge
Manning

This
case is before me upon a petition for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration
(“MSHA”), against Yenter Companies (“Yenter”), 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”). The parties presented testimony and documentary evidence at a
hearing held in Denver, Colorado, and filed post-hearing briefs. A section
104(d)(1) citation and order were adjudicated at the hearing. Yenter Companies
is an independent contractor performing blasting operations at a quarry operated
by Mountain Cement Company near Laramie, Wyoming.

I.
DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

My
findings of fact in this decision are based on the record as a whole and my
observation of the witnesses. In resolving conflicts in the testimony, I have
taken into consideration such factors as the interests of each witness, the
consistency of each witness’s testimony, and the consistency of each witness’s
testimony with the testimonies of other witnesses. Although I have not included
a summary of all the evidence presented at the hearing in this decision, I
fully considered all of the evidence.

Yenter is a drilling, blasting, and rock stabilization contractor that
has been in business since 1977. Yenter has conducted all blasting operations
for Mountain Cement Company at its Laramie, Wyoming, quarries for about 25
years. The blaster in charge is Jim Wasmuth and his

assistant is
Norman Jariell. Wasmuth has several pertinent blasting certifications and he
has been in charge of the blasting operations for Mountain Cement since 1989.

A. Order No. 8754714

On January 7, 2014, MSHA Inspector John C. Kalnins[1]
issued Order No. 8754714 under section 104(d)(1) of the Mine Act, alleging a
violation of section 56.6306(a) of the Secretary’s safety standards. (Ex. P-1).
The citation alleges that there was no barricade at the blast area in the
quarry to keep miners from entering a live blast area. The order further states
that the blaster was on the blasting site getting ready for the blast and that,
if a miner entered the area, he may have received fatal injuries.

Inspector Kalnins determined that an injury was reasonably likely to
occur, that the violation was of a significant and substantial (“S&S”)
nature, and that any injury could reasonably be expected to be fatal. He
determined that Yenter’s negligence was high and that one person would be
affected. Section 56.6306(a) mandates that “[w]hen explosive materials or
initiating systems are brought to the blast site, the blast site shall be
attended; barricaded and posted with warning signs, such as ‘Danger,’
‘Explosives,’ or ‘Keep Out;’ or flagged against unauthorized entry.” 30 C.F.R.
§ 56.6306(a). The Secretary proposed a penalty of $2,000.00 for this order.

Discussion and Analysis

MSHA cited Yenter for failing to barricade the blast site in order to
keep miners from entering a live blast area. Yenter was responsible for the
shot blasting area at that time. (Tr. 179). The parties disagree as to the
presence of any barricades or blasting notices on the day of the blast. The
Secretary’s only witness, MSHA Inspector John Kalnins, testified that on
January 7, 2014, the requisite barriers or blasting notices were not present
when he entered the quarry owned by Mountain Cement. (Tr. 14). Inspector Kalnins
also testified that only after Wasmuth noticed that a MSHA inspector was
present did Wasmuth start to put up cones barricading the blast area. (Tr. 22).
 Wasmuth, on the other hand, testified that the “Blasting Today” sign was opened
by Jariell, his assistant. (Tr. 93). Jariell likewise testified that he opened
the “Blasting Today” sign around 7:00 a.m. (Tr. 133) and that both he and
Wasmuth attended the site in order to prevent anyone from entering it for the
entire time they loaded and wired the shots. (Tr. 137). Wasmuth further
testified that he placed three cones on the access road prior to the blast, but
had removed the center cone the day of the blast so he could access the site. (Tr.
94-5). Mountain Cement safety manager, Charles Murphy, testified that he did
not see any cones barricading the blast area upon entering the area with Mr.
Kalnins, but that he did see the Danger - Blasting sign to the right of the
blast site access road. (Tr. 183-84).

The parties disagree as to the requirements of the safety standard. The
Secretary contends that the standard “requires that when explosive materials or
initiating systems are brought to a blast site the operator [is required to] ensure
that the blast site is (1) attended, (2) barricaded, and (3) posted with
warning signs.” (Sec’y Br. 9) (emphasis added). In the alternative, the
operator has the option of flagging the site against unauthorized entry. Id.
Yenter, on the other hand, argues that the safety standard presents alternatives
that an operator may use to comply. It notes that the standard uses the word
“or” rather than “and” in the list of options available to an operator. In
support, Yenter points to the preamble to the safety standard, which provides:

Moreover,
the final regulation gives operators compliance flexibility by providing
alternative methods on how to demarcate the blast site. Under this final regulation,
once initiation systems are brought to the blast site, mine operators must
either: (1) attend to the blast site; (2) barricade and post the blast site
with warning signs, such as “Danger,” “Explosives,” or “Keep Out;” or (3) flag
the blast site, to be in compliance with paragraph (a).

61 Fed. Reg. 36790, 36793 (July 12, 1996).

I find that the Secretary did not establish that
Yenter violated the safety standard. The language of the safety standard is
clear; it provides several alternatives for compliance. “Where the language of
a regulatory provision is clear, the terms of that provision must be enforced
as they are written unless the regulator clearly intended the words to have a
different meaning or unless such a meaning would lead to absurd results.” Dynamic
Energy, Inc., 32 FMSHRC 1168, 1171(Sept. 2010). The intent of the
Secretary, as set forth in the preamble, supports the plain language in the
safety standard itself and this clear meaning would not lead to absurd results.

One of the alternatives for
compliance is for the blast site to be “attended” by the operator. The term
“attended” means the “presence of an individual or continuous monitoring to
prevent unauthorized entry or access.” 30 C.F.R. § 56.2. The term “blast site”
is defined, for purposes of this case, as an “area where explosive material is
handled during loading, including the perimeter formed by the loaded blastholes
and 50 feet (15.2 meters) in all directions from loaded holes.” Id. Both
Wasmuth and Jariell spent the morning in the blast site loading and wiring the
explosives. Wasmuth and Jariell were present at the blast site from the time
they started working until they exited the area to initiate the blast. The only
way to access the blast site was via the road they used to enter the area
earlier that morning. (Ex. J-1). The area surrounding the blast site was open
land with sparse vegetation. (Ex. R-1).  A person could not have approached the
blast site without being seen by either Wasmuth or Jariell. (Tr. 101, 137-38). I
find that the evidence establishes that the blast site was “attended,” as that
term is defined by the Secretary.

Although it is not critical to my holding, I
credit the testimony of Jariell that he opened the “Blasting Today” sign the
morning of January 7, 2014. That sign warns anyone entering Mountain Cement’s
quarry site from the public road that blasting would be occurring that day. (Ex.
R-8). The sign does not prevent anyone from driving along the main access road
and onto the secondary roadway that leads to the blast site.

There had been three orange cones
across this secondary roadway, but when Wasmuth entered the area at the
beginning of his shift that day, he removed the center cone to drive into the
area and did not stop to replace the center cone. Thus, there were two orange
cones on the roadway, but a vehicle could still pass through even though the
roadway was only the width of one vehicle. (Tr. 16). Wasmuth also testified
that he placed a sign along the side of the secondary roadway about 100 yards
beyond the two cones when he first entered the area. (Tr. 95). The sign said
“Danger, Blasting, Keep Away.” (Tr. 95-96). Inspector Kalnins testified that he
observed Wasmuth putting up the danger sign only when he saw the inspection
party approaching the blast site around 1:00 in the afternoon. (Tr. 21). Murphy,
who drove the inspector to the quarry, did not see Wasmuth pull the danger sign
from his truck as the inspection party approached. He testified that the sign
was already present along the side of the road as they entered. (Tr. 182, 197).
I credit the testimony of Murphy and Wasmuth on this issue. Wasmuth replaced
the missing middle cone just before the blast countdown was commenced. (Tr.
106).

The Secretary takes the position in
his brief that because the secondary roadway leading to the blast site was not
barricaded against entry, a violation was established. He states that
“Wasmuth’s failure to replace the cone constitutes a violation of the cited
standard by Yenter.” (Sec’y Br. 10). He concludes that “[e]ven if the Court
finds that the site was appropriately attended and warning signs were posted,
the site was not barricaded while explosives were present. Therefore,
Respondent violated Section 56.6306(a).”  (Sec’y Br. 11). His position is
contrary to the plain and clear wording of the safety standard which requires
that a blast site be attended, barricaded and posted, or flagged against
authorized entry. Yenter attended the blast site and posted danger signs. Those
actions complied with the safety standard. For these reasons, the citation is VACATED.

B. Citation No. 8754730

On January 7, 2014, MSHA Inspector Kalnins issued Citation No. 8754730
under section 104(d)(1) of the Mine Act, alleging a violation of section
56.6306(g) of the Secretary’s safety standards. (Ex. P-3). The citation alleges
that after a blast in the quarry, miners went into the blasting area before the
area had a post-blast examination. The citation further states that a miner
entering the blasting area before it is examined for misfires could receive
fatal injuries.

Inspector Kalnins determined that an injury was reasonably likely to
occur, the violation was S&S, and that an injury could reasonably be
expected to be fatal. He determined that Yenter’s negligence was high and that
one person would be affected. Section 56.6306(g) mandates that “[w]ork shall
not resume in the blast area until a post-blast examination addressing
potential blast-related hazards has been conducted by a person with the ability
and experience to perform this examination.” 30 C.F.R. § 56.6306(g). The Secretary
proposed a penalty of $2,000.00 for this citation.

Discussion and Analysis

MSHA cited Yenter for allowing
unauthorized persons to enter the blast area before a post-blast inspection was
completed and an all-clear notice was given. Yenter’s company policy allows for
the assistant blaster to perform all of the blaster in charge’s duties, save
clearing misfires, so long as the former is under the supervision of latter. (Tr.
157). Jariell testified that he performed the post-blast inspection immediately
after the blast and issued an all-clear. (Tr. 143). Jariell and Wasmuth
testified that only one person, Mountain Cement pit boss Scott Swinford,
entered the blast area before an all-clear was given. (Tr. 117,148). This
testimony was corroborated by Charles Murphy, the safety manager for Mountain
Cement. (Tr. 201). Inspector Kalnins, on the other hand, testified that several
Mountain Cement employees entered the blast area before the all clear was given.
Swinford had witnessed blasts performed by Yenter in the past but Wasmuth,
Jariell, and Murphy testified that they had not previously observed Swinford
enter a blast area prematurely as he did in this instance. (Tr. 116-17, 149,
187, 191)

I find that the Secretary established
a violation. The evidence establishes that, once the shot was fired, Swinford
drove his vehicle down the access road and “parked just in front of the face of
the shot[.]” (Tr. 203, 196). The all-clear had not been given at that time. Inspector
Kalnins believed that several other people entered the blast area, but the
evidence clearly demonstrates that only Swinford prematurely traveled to the
blast area.[2]
(Tr. 117, 148, 204). Mountain Cement disciplined Swinford by suspending him for
three days without pay. (Tr. 205). Inspector Kalnins issued an imminent danger
order and the section 104(d)(1) citation and order that are the subject of this
case after observing Swinford drive to the blasting area.[3]

Yenter argues that although
Swinford wrongfully entered the blast area before the all-clear signal was
given, the Secretary did not establish a violation because there is no evidence
that Swinford entered the blast area before Jariell finished examining the
blast area for misfires. Yenter also argues that there was no proof that
Swinford conducted any “work,” as that term is used in the safety standard,
before the all-clear was given. The Secretary only proved that Swinford drove
into the blast area.

I reject Yenter’s argument. It is
clear that Swinford entered the blast area prematurely. It is possible, but
unlikely, that Swinford arrived at the blast area after Jariell completed his
post-blast examination but before he actually gave the all-clear signal. It
would not have taken Swinford as long to drive to the blast area as it would take
Jariell to complete his examination.[4]
While it is true that Swinford did not walk upon the blast area to conduct any “work,”
he did drive into the blast area for a work-related purpose. Given the purpose
of the safety standard, the term “work” should be interpreted broadly to
include the act of entering the blast area before the post-blast examination has
been completed.

I find that the Secretary did not establish that the
violation was the result of Yenter’s unwarrantable failure to comply with the
safety standard.[5]
The citation alleges that “[b]laster Jim Wasmuth engaged in aggravated conduct
constituting more than ordinary negligence in that he knew the proper blasting
procedures and still let miners access the hazardous area.” The evidence
establishes that Wasmuth did not permit miners to enter the blast area before
he completed his examination. At some point Wasmuth saw Swinford’s truck in the
blast area, but he did not authorize or permit him to enter the area.[6] (Tr. 117-18). Swinford was an employee of Mountain
Cement, not Yenter. The primary dispute between the parties with respect to
this issue is whether Swinford habitually entered the blast area prematurely. The
Secretary argues that Swinford frequently traveled to the blast area
immediately following a blast before the post-blast examination had been
completed. He maintains that Wasmuth, acting on behalf of Yenter, did not take
any steps to stop this practice. Respondent maintains that Wasmuth and Jariell
made sure that people did not prematurely enter the blast area until the all
clear signal was given, in accordance with Yenter policy.

Swinford had
witnessed many blasts conducted by Yenter. Both Wasmuth and Jariell testified
that they had never observed Swinford drive to the blast area before the
post-blast examination was completed. (Tr. 117-18, 149)  I credit their
testimony. Murphy testified that he overheard Swinford tell Inspector Kalnins
that “he has always done it that way.” (Tr. 190). This testimony is hearsay and
it is not clear what the phrase “done it that way” means with respect to
Swinford’s conduct. It could simply mean that he is always the first Mountain
Cement employee at the blast site, not that he always jumped the gun and
entered the blast area before Yenter had completed its post-blast examination.[7]

Although Yenter,
as the blasting contractor, “has a duty to ensure the safety of miners within
the blast area,” its failure to prevent Swinford from entering the blast area in
this instance did not rise to the level of aggravated conduct. Orica Nelson
Quarry Services, 35 FMSHRC 3004, 3012 (Sept. 2013)(ALJ). The violation occurred
instantaneously without warning.  The Secretary argues that the violation was
extensive because it was a regular practice for employees to enter blast areas
before the all-clear had been given. I credit the testimony of Wasmuth and Jariell
that they followed Yenter’s blast security measures and prohibited others from
entering the area before their post-blast examination had been completed. (Tr.
116-17, 148). The Secretary did not establish that Yenter habitually allowed
Mountain Cement employees to enter the blast area before completion of the
post-blast examination. Yenter had not been put on notice that greater efforts
were necessary to comply with the safety standard. For the same reason, I find
that Wasmuth and Jariell, acting for Yenter, did not know that Swinford would
attempt to enter the blast area prior to the all-clear being given. As a
consequence, Yenter did not have an opportunity to abate the violative
condition prior to its occurrence. Traveling into a blast area before the
all-clear signal is given creates an obvious and serious safety hazard. Because
Yenter did not know that Swinford would enter the blast area prematurely until
the moment he did so, Yenter did not have knowledge of the violation prior to
its occurrence.

I find that Yenter exhibited
moderate negligence. In determining whether an operator has met its duty of
care, the Commission considers what actions would have been taken under the
same circumstances by a reasonably prudent person familiar with the mining
industry, the relevant facts, and the protective purpose of the safety
standard. JWR Res. Inc., 36 FMSHRC 1972, 1975 (Aug. 2014). I find that
Yenter was not indifferent to the necessity to prevent miners from entering the
blast area before the area was examined and its conduct in this respect did not
amount to a serious lack of reasonable care. Neither Wasmuth nor Jariell knew
or expected that Swinford would drive into the blast area. Yenter had a policy that
prohibited miners from entering a blast area until the all-clear notice was
given. (Tr. 161-62; Ex. R-5 at 9-10).

I find that the Secretary
established that the violation was S&S.[8]
There was a violation of a safety standard that created a discrete safety
hazard. The hazard included the risk of a misfire and the possible presence of
noxious gasses. Explosive material could have ignited on its own or as a result
of Swinford’s presence upon exiting his vehicle.

Whether it was reasonably likely
that the hazard contributed to by the violation will result in an injury is the
closest issue. The “reasonably likely” requirement does not require the
Secretary to prove that an injury was “more probable than not.” U.S. Steel
Mining Co., 18 FMSHRC 862, 865 (June 1996). The “Secretary need not prove a
reasonable likelihood that the violation itself will cause injury” but, rather,
that the hazard contributed to by the violation will cause an injury. Musser
Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010);
Cumberland Coal Resources, 33 FMSHRC 2357, 2365 (Oct. 2011). I find that
entering a blast area before it has been examined and cleared is hazardous and
that a serious injury is reasonably likely given continued mining operations. I
find that the hazard created by this violation was reasonably likely to lead to
an injury and that such an injury would be of a reasonably serious nature.

The gravity of the violation was serious
for the reasons described above. The violation could have contributed to a
fatal or permanently disabling injury.

I MODIFY Citation No. 8754730 to a 104(a) citation with moderate
negligence. In all other respects the citation is affirmed. Although I am not
bound by the penalty point system developed by MSHA, I note that if the penalty
is recalculated using MSHA’s system taking into consideration my moderate
negligence finding, the penalty would be $392.00 with the reduction for good
faith abatement. 30 C.F.R. § 100. 3. I find that a penalty of $400.00 is
appropriate for this violation. I considered all of the penalty criteria in
assessing this penalty. I took particular note of Yenter’s small size and its
lack of any previous history of violations.

II. APPROPRIATE CIVIL PENALTIES

Section
110(i) of the Mine Act sets forth the criteria to be considered in determining
an appropriate civil penalty. The parties stipulated that Yenter has no history
of previous MSHA violations during the relevant time period. (Tr. 5). Respondent
is a small independent contractor. The violations were abated in good faith. The
penalties assessed in this decision will not have an adverse effect upon the
ability of Yenter to continue in business. The gravity and negligence findings
are set forth above.

III. ORDER

Order
No. 8754714 is VACATED for the reasons set forth above. Citation No.
8754730 is MODIFIED to a section 104(a) citation with moderate
negligence. Yenter Companies is ORDERED TO PAY the Secretary of Labor
the sum of $400.00 within 30 days of the date of this decision.[9]

/s/ Richard W.
Manning

Richard
W. Manning

Administrative
Law Judge

Distribution:

Laura Ilardi Pearson, Esq., Office of the Solicitor, U.S.
Department of Labor, 1244 Speer Blvd., Suite 216, Denver, CO 80204-3518

Rodney L. Smith, Esq., Sherman & Howard L.L.C., 633
Seventeenth Street, Suite 3000, Denver, CO 80202-3622

RWM

[1]
Kalnins had been an inspector with the MSHA
Denver field office for six years at the time of the hearing. (Tr. 7). Prior to
his employment with MSHA, he worked at open-pit sand and gravel operations and
in construction as a laborer, foreman, and project manager. (Tr. 8). Inspector
Kalnins testimony at the hearing was often confusing and muddled. Although I do
not question his honesty, his memory of the events that transpired the day of
the inspection was often inaccurate. I find that his testimony was not
persuasive with respect to several key issues.

[2]
The term “blast area” includes a much larger
area than a “blast site.” “Blast area” is defined, in part, as “the area in
which concussion (shock wave), flying materials, or gases from an explosion may
cause injury to persons.” 30 C.F.R. § 56.2.

[3]
Yenter did not contest the imminent danger
order.

[4]
Swinford no longer works for Mountain Cement and
he did not testify at the hearing.

[5]
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 conduct described
as “reckless disregard,”
“intentional misconduct,” “indifference,” or a “serious
lack of reasonable care.” Id.
at 2002-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC
189, 194 (Feb. 1991); see also Buck Creek Coal, Inc., 52 F.3d 133,
136 (7th Cir. 1995) (approving Commission's unwarrantable failure test).
The Commission has explained
that whether a citation is an “unwarrantable failure” is a question
that should be evaluated
based on the facts and circumstances in each case, and in light of each of the
following factors: (1) the length of time that the violation has existed; (2) the extent of the violative condition; (3) whether
the operator has been placed
on notice that greater efforts were
necessary for compliance; (4) the operator's efforts in abating the violative condition; (5) whether the violation was obvious;
(6) whether the condition posed
a high degree of danger; and (7) the operator's knowledge of the existence of the violation. See Consolidation Coal Co., 22
FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346 (Dec. 2009). 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.

[6]
During the blast, two groups of miners blocked
access to the blast area. Swinford used his truck to block the main haulage
road to the south of the access road to the pit and the blast area. Other
personnel were in that area, including Inspector Kalnins and Murphy who were in
the same vehicle during the blast. Others
blocked the access from the north along the same haulage road. Murphy testified
that, as they watched Swinford drive toward the blasting area, he told
Inspector Kalnins that he did not know why Swinford had left the area before
the all-clear was given. (Tr. 186). Murphy further testified that when he asked
Kalnins whether he should contact Swinford on the radio, Kalnins replied “No,
let’s just see where he is headed.” Id. Kalnins, on the other hand,
testified that Murphy tried to contact Swinford, but was not successful. (Tr.
61-62). Given the inspector’s confusion about the events of the day, I credit
Murphy’s testimony.

[7]
Inspector Kalnins wrote in his notes “miners
went into the blasting area before the area had a post blast examination. The
miners stated that this was the way it was always done.” (Ex. P-4). As stated
above, the inspector erroneously believed that many miners had prematurely
entered the blast area. This written statement suffers from the same ambiguity due
to the inspector’s confusion about the events that took place at the quarry
that day.

[8]
An S&S violation is a violation “of such
nature as could significantly and substantially contribute to the cause and effect
of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) (2006). In order
to establish the S&S nature of a 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 will be of
a reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.
1984); accord Buck Creek Coal Co., Inc., 52 F.3d 133, 135 (7th Cir.
1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th Cir. 1988)
(approving Mathies criteria). The Commission has held that “[t]he test under the third element is whether there is a
reasonable likelihood that the hazard contributed to by the violation…will
cause injury.” Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC
1257, 1281 (Oct. 2010).

[9]
Payment should be sent to the Mine Safety and Health Administration, U.S.
Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.