Secretary of Labor v. Original Sixteen to One Mine, Inc.

Read the official release (fmshrc.gov)

Plain-English summary

Seven consolidated dockets covered 36 citations and orders at the underground Original Sixteen to One and Plumbago gold mines in California. The matters addressed emergency communications, electrical protection, training, mine records, equipment defects, escape planning, explosives storage, travelway openings, combustible materials, and related safety duties. Judge William B. Moran affirmed or modified most matters, dismissed one citation, approved the parties' settlements and concessions, and recognized the Secretary's withdrawal of another citation. Two serious violations for denying an inspector entry accounted for $4,000 of the total assessment. The operator was ordered to pay $7,350, after which all seven dockets would be dismissed.

Decision snapshot

• Cited standards: Multiple Part 57 standards governing emergency response, electrical safety, equipment, escapeways, explosives, and mine examinations
• Outcome: Thirty-six matters were affirmed, modified, settled, dismissed, or vacated, with total penalties of $7,350.
• Key point: Denying MSHA entry for an inspection was treated as a serious violation and produced more than half of the total penalty.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA
AVE., N.W., SUITE 520N

WASHINGTON, DC
20004-1710

TELEPHONE:
202-434-9933 / FAX: 202-434-9949

May 3, 2016

SECRETARY OF LABOR

MINE SAFETY AND HEALTH  

ADMINISTRATION (MSHA),

Petitioner,

v.

ORIGINAL SIXTEEN TO ONE

MINE, INC.,

Respondent.

CIVIL PENALTY PROCEEDINGS

Docket No. WEST 2014-527-M

A.C. No. 04-01299-345516

Docket No. WEST 2015-158-M

A.C. No. 04-01299-366336

Docket No. WEST 2015-251-M

A.C. No. 04-01299-368842

Mine: Sixteen to One Mine

Docket No. WEST 2015-77-M

A.C. No. 04-03065-363861

Docket No. WEST 2015-78-M

A.C. No. 04-03065-363861

Docket No. WEST 2015-240-M

A.C. No. 04-03065-368847

Docket No. WEST 2015-381-M

A.C. No. 04-03065-372727

Mine: Plumbago Mine

DECISION AND
ORDER

Appearances:               Michele
A. Horn, Esq., U.S. Department of Labor, Office of the Solicitor, Denver,
Colorado, for Petitioner

Michael
M. Miller, pro se, Alleghany, California, for Respondent

Before:                        Judge Moran

The Original Sixteen to One Mine
and the Plumbago Mine are underground gold mines of historical significance
within California’s Alleghany Mining District.  Tr. 17-18.[1]
 A hearing regarding the citations associated with the dockets listed above was
held in Nevada City, California from November 17-19, 2015.  Seven citations
were settled or vacated at the hearing.[2]    

Before turning to the particular contested matters,
the Court believes it is important to make the following comments.  For several
of the citations in these various dockets the Court reduced the civil penalty
from the amount proposed initially and, in some instances, from revised amounts
sought by the Secretary at the hearing.  The Court wishes to advise Respondent
that it should not take the reductions as signaling that, by going to hearing,
penalties may be reduced.  Respondent is not new to mining, nor to MSHA, and as
such, it may be that in future litigation penalty amounts may be adopted as
originally proposed or as revised by the Secretary during a hearing.  It is
also possible that penalties may be increased by the Court beyond the amounts
sought by the government.  Of course, the penalty for established violations is
dependent upon the particular facts adduced at each hearing. 

A Preliminary Matter Pertaining to All of the Contested Matters
in This Litigation

A running controversy during the
hearing involving discovery was whether Respondent requested copies of the
inspectors’ field notes associated with the various citations.  See, e.g.,
Tr. 123, 302-04.  The Court ultimately resolved this dispute by requiring
counsel for the Secretary to determine if Mr. Miller made a request for the
field notes of the inspectors who testified in this proceeding.  If no request
was made, that would end the matter, in terms of Respondent making objections
about their absence.  If the request was made, then the Secretary’s Counsel was
to advise as to the date such documents were delivered to Respondent, assuming
such delivery was made.  If, despite such a request, the field notes were not
delivered, then the Court instructed that Counsel was to deliver all such field
notes to Respondent, and Respondent would then have 2 weeks to review those
notes and, if applicable, to identify in what manner the absence of those notes
disadvantaged Respondent.  Tr. 304-05. 

Following the Court’s instructions
at the hearing, Attorney Horn responded on November 21, 2015, as follows:

Cc: Michael Miller
([email protected])

Subject: Original
Sixteen to One discovery

Your Honor,

In response to
directions given by you at the hearing last week, I have inquired as to whether
or not the General Field Notes associated with the seven dockets discussed at
hearing were sent to Mr. Miller prior to hearing.

Per my records I
received only one discovery request from the operator.  It was sent on
September 30, 2015, via e-mail and the discovery portion  of the message from
Mr. Miller read, “Please send me the citations MSHA has issued for the next
hearing.” 

In response to this
request, I sent the citations, citation notes and photographs for each citation
which was discussed at the hearing last week.  Contrary to my stated belief
last week, I did not send the General Field Notes.

However, as the Mr.
Miller’s discovery request was limited to “citations” it is my understanding
that this ends any issue regarding the non-production of the General Field
Notes. 

Thank you.

Michele Horn

The Court responded to Attorney Horn’s email as follows:

Saturday, November
21, 2015

Dear Attorney Horn
(and Mr. Miller): 

Thank you, Attorney
Horn, for your prompt attention to this issue.  On the basis of your message
below, you are correct that, per my order during the hearing, and your message,
below, which relates that “as the Mr. Miller’s discovery request was limited to
“citations” it is [the Secretary’s] understanding that this ends any issue
regarding the non-production of the General Field Notes.”  Thus, absent Mr.
Miller being able to show that he sent you or a representative for the
Secretary a specific request seeking the General Field Notes related to the
dockets in issue during our hearing this past week, the matter is ended.  

I want to reiterate
that I appreciate the professionalism displayed by all during the hearing.

Sincerely, Judge
William Moran

No such showing was thereafter provided by Mr. Miller,
thereby resolving the issue in the Secretary’s favor.

Respondent’s Post-hearing Brief

The Court read and considered Respondent’s
post-hearing brief and makes the following observations and comments about it. 
Not every point raised in the brief is discussed, but the entire brief was
considered.  Part of that consideration involves the Court’s discretion as to
the need to comment upon specific parts of the brief.  The same principle was
applied to the Secretary’s post-hearing brief — not every contention is
addressed.  Among the contentions made in Respondent’s Brief were the claims that
some of the inspectors hired by MSHA are not qualified; that the Plumbago Mine,
while a mining operation, is not conducting mining activities; and that the
activities at that mine do not affect interstate commerce.  Mr. Miller’s
position is that only Inspector Rogers was qualified and competent to conduct
the inspections and issue the citations/orders which resulted from those
events. The Court rejects each of these contentions, as they are without any
merit. 

The Court notes that even if one
were to accept Respondent’s claim that nearly all of the MSHA inspectors
involved here were unqualified, a claim with which the Court does not agree
at all, nearly all of the various citations in this litigation were
established apart from one’s mining knowledge.  A few examples clearly show
this.  Citation No. 8783098 involved a violation of 30 C.F.R. § 57.15031(a)
for failing to have a self-rescuer within 25 feet of a worker’s location.  If a
self-rescuer is more than 25 feet away, there is a violation, and no previous
mining experience is needed to make such a determination.  Another example,
among many such instances in this litigation, is Citation No. 8793805, which
involved finding combustible materials, such as grass, brush, wood, and rubbish
within 25 feet of a powder magazine.  No mining expertise is required to make
such a determination, though in fact the issuing inspector had 18 years of such
experience.  While more examples are not needed, a few more are here included. 
It is noted that Citation No. 8785247 involved a vehicle with no functioning brake
or tail lights, a violation which Respondent acknowledged to exist.  As a last
illustration, Citation No. 8793806 involved a magazine that was not bullet
resistant, as it had a steel exterior of about 1/8 inch with an interior lining
of about 1/2 inch of plywood, instead of the required 1/4 inch of steel and 2
inches of hardwood. 

Respondent also maintains that
citations/orders must be the result of “specific conditions at the mine.”  Resp’t’s
Post-hearing Br. 4.  The Court was attentive to this claim, both at the hearing
and during the Court’s close review of the transcript, as reflected in this fifty-plus
page decision, and finds that, for each alleged violation (other than the one
that was dismissed), the violations were both established and based upon the
specific conditions at the mine.  To the extent that prior history was
referenced during the course of the testimony, a mine’s history of violations
and extensive mining experience are factors which may be taken into account,
per the statutory penalty criteria, where violations have been established. 

Of great concern to the Court, Respondent
asserts that its “miners are ragingly mad with the administrative agency
legislated to protect them.  Mr. Boylan and his supervisors put them out of
work.” Resp’t’s Post-hearing Br. 7.  Except for the instances where inspectors
found employees working at Respondent’s mine, despite a live withdrawal order
in place, no one with MSHA put any employee out of work.  The larger problem,
and it must be faced directly, is that Respondent objects to MSHA’s lawful
presence and the carrying out of its Mine Act obligations through the
statutorily-mandated inspections under that Act.  The sadly contentious nature
of the relationship between MSHA and Respondent will not improve until
Respondent comes to accept that MSHA’s presence and its inspections are
legitimate.  While it may be potentially useful for the MSHA district office to
have discussions with Respondent, nothing positive can come of such discussions
until Respondent first accepts the legitimacy of MSHA, its authorized
representatives, the inspectors, and their statutory inspection obligations and
duties.  The Court calls upon Mr. Miller to discard the combative and
non-productive approach, as reflected vividly in his post-hearing brief, and to
have a change of heart and attitude, as he approaches the last years of working
experience in the mining industry. 

The Court also fully considered Mr. Miller’s
Reply Brief.  That submission largely continues with the themes raised in
Respondent’s post-hearing brief, and the Court will not revisit those
contentions.  One distinction is that, for the Reply Brief, Respondent raises
specific objections for a few of the citations.  Having reviewed those
contentions, not all merit a response from the Court.  Where the Court
considers that a response is warranted, those will be addressed infra.

Respondent’s Challenge to MSHA’s Jurisdiction

Throughout this litigation, Respondent
has also taken the position that MSHA lacks jurisdiction to inspect its mines. 
The Court read all of the contentions made by Respondent and rejects them
without qualification.  Nothing sums up Respondent’s position better than the
concluding line from its post-hearing reply brief which asserts that not a one
of “[t]he citations and orders issued should not be affirmed by the court.”  Resp’t’s
Reply Br. 9.

At the hearing, the Court explained to Mr.
Miller that the federal courts have long ago affirmed the jurisdiction and
breadth of the Mine Act.  Nevertheless, a few cases, among a plethora of such
holdings, are noted.  In Cyprus Industrial Minerals Co. v. FMSHRC, 664
F.2d 1116 (9th Cir. 1981), it was held that digging a tunnel into a hill for
the purpose of assessing the value of talc deposits constitutes mining, even if
minerals were not being extracted.  In D.A.S. Sand & Gravel, Inc. v.
Chao, 386 F.3d 460 (2d Cir. 2004), it was held that the Commerce Clause
permits Congress to regulate mines whose products are sold entirely
intrastate.  Finally, in

Donovan v. Carolina Stalite Co.,
734 F.2d 1547 (D.C. Cir. 1984), it was held that Congress intended the
definition of a mine under the Act to be given the broadest possible
interpretation.[3]

Legal Standards

Significant and Substantial

The Significant and Substantial
(“S&S”) terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to
“significant and substantial,” i.e., more serious, violations.  A violation is
S&S if, based on the particular facts surrounding the 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).  In Mathies Coal Co.,
6 FMSHRC 1 (Jan. 1984), the Commission further explained:

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.

Id. at 3-4 (footnote omitted); accord Buck
Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin
Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving
Mathies criteria).  The S&S determination “must be made at the
time the citation is issued ‘without any assumptions as to abatement’
and in the context of ‘continued normal mining operations.’”  Paramont Coal
Co., 37 FMSHRC 981, 985 (May 2015) (quoting U.S. Steel Mining Co., 6
FMSHRC 1573, 1574 (July 1984)).

Negligence

As the Commission recently clarified, “judges
are not required to apply the definitions of Part 100.”  Brody Mining, LLC,
37 FMSHRC 1687, 1702 (Aug. 2015).  Rather,

judges may evaluate
negligence from the starting point of a traditional negligence analysis rather
than based upon the Part 100 definitions. Under such an analysis, an operator
is negligent if it fails to meet the requisite standard of care - a standard of
care that is high under the Mine Act[.]

Id.  Accordingly, “a Commission Judge may find ‘high
negligence’ in spite of mitigating circumstances or may find “moderate”
negligence without identifying mitigating circumstances.”  Id. at 1703. 
The Commission has stated that “the gravamen of high negligence is that it ‘suggests
an aggravated lack of care that is more than ordinary negligence.’”  Id.
(quoting Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)).

Unwarrantable Failure

The Commission has stated that an
“unwarrantable failure is aggravated conduct constituting more than ordinary
negligence.”  Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013).  Unwarrantable
failures are characterized by such conduct as “‘reckless disregard,’ ‘intentional
misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable care.’”  IO
Coal Co., Inc., 31 FMSHRC 1346, 1350 (Dec. 2009) (quoting Emery Mining
Corp., 9 FMSHRC 1997, 2003-04 (Dec. 1987)).

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, including (1) the extent of the violative condition, (2) the
length of time that the violative condition existed, (3) whether the violation
posed a high degree of danger, (4) whether the violation was obvious, (5) the
operator’s knowledge of the existence of the violation, (6) the operator’s
efforts in abating the violative condition, and (7) whether the operator had
been placed on notice that greater efforts were necessary for compliance.

Manalapan Mining Co., 35 FMSHRC at 293.  When
determining whether a violation was due to an unwarrantable failure, the Court
must consider all relevant factors and the relevant facts and circumstances of
the case to determine whether the actor’s conduct was aggravated and whether
mitigating circumstances exist.  IO Coal, 31 FMSHRC at 1351.

Penalty Determinations

“The Mine Act sets
forth a bifurcated penalty scheme under which the ‘Secretary proposes penalties
before a hearing based on information then available to him and, if the
proposed penalty is contested, the Commission affords the opportunity for a
hearing and assesses [the] penalty.’”  Hidden Splendor Res., Inc., 36
FMSHRC 3099, 3101 (Dec. 2014) (quoting Sellersburg Stone Co., 5 FMSHRC
287, 291 (Mar. 1983), aff’d, 736 F.2d 1147, 1151-52 (7th Cir. 1984)). 
Under this bifurcated scheme, “[t]he Secretary's regulations at 30 C.F.R. Part
100 apply only to the Secretary's penalty proposals, while the Commission
exercises independent ‘authority to assess all civil penalties provided [under
the Act]’ by applying the six criteria set forth in section 110(i) [of the Mine
Act].”  Id. (quoting 30 U.S.C. § 820(i)).  The six section 110(i)
factors are:

the operator's
history of previous violations, the appropriateness of such penalty to the size
of the business of the operator charged, whether the operator was negligent,
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).

Findings of
Fact and Conclusions of Law for the Citations and Orders in These Dockets

Docket No. WEST
2014-527-M (Sixteen to One Mine)

Citation No. 8783098[4]

Proposed Penalty: $100.00.  Penalty Assessed: $50.00.

The Secretary called MSHA Inspector
Miles Frandsen, regarding Citation No. 8783098, GX 2(a).[5]
 The inspector issued the citation to the Sixteen to One Mine on January 23,
2015, for an alleged violation of 30 CFR § 57.15031(a).[6] 
Sec’y Br. 5.  Frandsen found a worker, a contractor employee, without his
self-rescuer device within the specified footage of his work area.  The type of
self-rescuer used for this type of mine, a metal-nonmetal mine, scrubs carbon
monoxide from the air.  Tr. 20-21.  The cited standard requires that the device
be within 25 feet of the worker’s location.  The worker in this instance was
about 50 feet away from the device.  Tr. 22.  The inspector listed the likelihood
of injury as “unlikely.”  His concern was that if a wall of smoke were to enter
the mine and the worker couldn’t get to and find the self-rescuer, the worker
could perish from the smoke exposure.  Tr. 23.  However, the inspector did not
find anything that would be likely to cause a fire, noting, for example, that
the mine’s timbers were moist.  Id.  Frandsen’s view was impacted by a personal
experience where a miner couldn’t get to his self-rescuer, even though it was
on the other side of the shuttle car.  In that instance, the self-rescuer was a
mere 5 to 6 feet away from the miner.  Tr. 24.  The inspector considered the
negligence to be moderate, as the owner, Mr. Miller, did not challenge the
distance from the worker to the self-rescuer, and had advised the worker to
keep it “in the area.”  Tr. 25.  The inspector stated that a self-rescuer is as
important in a gold mine as it is in a coal mine. Tr. 33.  Frandsen affirmed
that he marked that a fatality could occur, a conclusion based on one not being
able to breathe due to smoke from a fire.  Tr. 34.  However, he also marked
that it was an unlikely to occur event.  Thus, he expressed that “[i]t’s not
the likelihood of the fire, it’s the result of not having [a self-rescuer] when
[one is] in a fire.”[7]  Tr. 35. 

Jonathan Farrell, a long-term
employee of Respondent, testified with regard to the self-rescuer citation. 
Farrell was not present when the citation was issued but he believed that,
because the mine has a reversible fan, ventilation can be controlled.  It was
also his view that the individual was within a safe distance of the self-rescue
device.  Tr. 66. 

Mr. Miller also testified,
asserting that the person cited was not a miner, nor an employee, but instead
was an outside contractor’s employee who was doing exploratory work.  Tr. 49.  The
operator also defended this citation by attesting that at the time the citation
was written there were no hazards in the mine that would lead to the
self-rescuer being needed and that a self-rescuer is only needed in an emergency
situation.  As such, the contractor’s failure to wear the device should be
evaluated as if conditions existed such that a self-rescuer was needed.  Tr.

50.  The Court rejects this viewpoint and incorporates the Secretary’s
arguments addressing this issue in its post-hearing brief but, for the other
articulated reasons, including those in footnote seven, supra, does not
adhere to the claim that the violation was S&S. 

As the Secretary has noted, the
standard requires, generally, that self-rescue devices be worn or carried “by
all persons underground.”  30 C.F.R. § 57.15031(a).  However, where doing so
would be hazardous, the 25 foot rule applies, and the citation in this instance
involved that exception.  The Secretary correctly observes that there “is no
requirement of any legal relationship between the person underground and the
mine operator nor is there any requirement that the person be employed as a
miner.”  Sec’y Br. 6. 

This violation was conceded in that
Respondent admitted that the device was not within 25 feet of the miner.  The
citation was issued as unlikely, non-S&S, fatal, moderate negligence, and
one person affected, with a proposed penalty of $100.00.  The Secretary’s Part
100 procedures for proposed assessment of civil penalties does not allow for a
penalty of less than $100.00.[8]  The Court is not so
restricted as it looks to the statutory criteria, not Part 100.  Given the
conditions at this small mine, and the other evidence adduced, a fatal accident
was not likely to be the result but rather lost workdays or restricted duty. 
Accordingly, the Court declines to modify the citation to reasonably likely and
S&S.  A penalty of $50.00 is imposed for this violation.

Citation No. 8783099

Proposed Penalty: $100.00.  Penalty Assessed: Dismissed.

Citation No. 8783099, GX 3, citing 30 C.F.R. §
57.12010,[9] was addressed by
Inspector Frandsen.  Issued on January 23, 2014, the inspector alleged finding
the mine’s phone line touching a 480-volt power cable in several places underground. 
Tr. 37.  The hazard was not what one might anticipate, however, as it did not involve
any shock hazard.  Instead, it pertained to the electrical field around the
power cable.  Where that cable touches the phone line, the electrical field from
the cable has the potential to cause the phone line to malfunction, but only during
equipment start-up.  Photos showed the phone line touching the cable.  GX
3c (the phone line is white).  The inspector stated that it was unlikely
that the power cable would short out the phone line.  Tr. 40.  This was because
the mine did not then have any electrical equipment underground that would
cause a surge when such equipment was started.  Id.  The inspector
defended his designating the injury as “fatal” on the basis that if one couldn’t
use the phone for help one could perish.  The negligence was marked as moderate
because a part-time electrician was designated to do the electrical work and
this problem was obvious.  Id. 

The Court asked the inspector about this
citation and the standard cited, which is titled “Isolation or Insulation
of Communication Conductors.”  30 C.F.R. § 57.12010 (emphasis added).  The
inspector stated that the standard requires that such telephone lines have to
be protected either by isolation or by suitable insulation and in this instance
there was neither protection.  Tr. 42.  Abatement was achieved by separating
the lines.  Id. 

Upon questioning by Respondent, the inspector
admitted that he had no idea how long the condition had existed.  Tr. 43.  He
did not know precisely what type of phone line was being used.  Respondent also
inquired about SO wire[10] and its use for phone
lines.  Tr. 43-44.  Respondent’s non-attorney representative Mr. Michael Miller
testified about this citation.  He stated that the insulation on the phone line
was approved for underground use when it was purchased, that the wire is
“well-insulated,” and that it works.  Thus, Miller contended that the wire had
suitable insulation.  Tr. 67.  Miller also asserted that the inspector’s designating
the violation as potentially involving a fatality was too speculative.  Tr.

68.  Still, Miller did concede that the phone lines did touch the 480 volt
power cable in several locations.  Miller stated that the power cable had been
there for some 15 or 20 years and the phone line was there and subject to
numerous MSHA inspections without any citations being issued for this issue. 
Miller believed that the issuing inspector cited the condition because his
background was mostly associated with coal mines and Miller considered the
comparison inapt because the differences between the Sixteen to One Mine and a
coal mine are so profound.  Tr. 70.  Miller continued, stating that the phone
line insulation, as shown by GX 3c, was intact.  As to the electrical lines, he
stated that, being SO wires, they were already double insulated, and such
electrical wires are MSHA approved.  Tr. 71.  Thus, Miller maintained that the
phone wires are unlike house phone wires and would not be subject to the
concerns expressed by the inspector.  Tr. 72.  Miller then reaffirmed his
stance that the phone wires were adequately insulated.  Id.  This view
was based upon his knowledge of the phone wires when they were purchased.  Tr.
73. 

The Secretary recalled the inspector, who stated
that the power line has insulation in that the individual conductors are
insulated and the jacketing around those conductors serves as protection, as
opposed to insulation.  Tr. 74.  The same, he stated, is true of the phone line
as it too has insulation on the inside wires and, like the power line, there is
an outer covering, which he again distinguished as “protection” as opposed to
“insulation.”  Id.  Still, the inspector stated that the phone line’s
insulation was not sufficient to meet the cited standard, 30 C.F.R. § 57.12010,
asserting that the standard requires additional insulation for the phone
line.  Tr. 75.  However, the Court observed that the standard does not express
that there must be additional insulation.  Id.  The Court pressed
the inspector to explain his basis for asserting that the insulation on the
phone line was not suitable.  Tr. 77.  The inspector maintained that his MSHA
training was that when such wires touch, they are to cite the standard as being
violated.  Id.  The Court then asked the inspector if there was any
telephone wire that would meet the standard’s requirement for adequate
insulation and was advised there is no such wire.  Id. 

While isolating the phone line from
the power cable is an option, the phone line can be wrapped with simple
electrical tape to provide the insulation sufficient to protect the signal. 
Tr. 79.  The inspector repeated that he evaluated the violation as unlikely,
noting that there was “no underground equipment that would probably generate [the
electrical field that concerned him].”  Tr. 79.  Despite that concession, he
believed that it was possible, in the future, that such equipment could
be added at some time.  Tr. 79.  Based on the inspector’s later response, the
Court asked why he did not mark the citation as “no likelihood” as opposed to
“unlikely.”  Tr. 80.  In response, apparently not understanding the question,
he stated that he did not remember what was in the mine.  Id. 
Respondent was successful in bringing out the lack of prior MSHA enforcement of
this standard for the phone lines.  Tr. 81. 

Upon consideration, this citation, No. 8783099,
is DISMISSED.  The Secretary was unable to authoritatively respond to the
Respondent’s contention that the SO cable meets the standard.  Further, the
inspector’s admission that there was no underground equipment that would
probably generate the electrical field that concerned him suggests that the
violation was not present with the equipment then in the mine.

Docket No. WEST
2015-77-M (Plumbago Mine)

Citation No. 8698235                                         

Proposed Penalty: $5,000.00.  Penalty Assessed: $500.00
(five hundred).

Citation No. 8698235, GX 19, dated
May 12, 2014, and citing 30 C.F.R. § 50.10(a),[11] was issued because there
was a death on the mine property which was not reported to MSHA.  Tr. 512.  The
deceased was Mr. Buck Barker, who was present at the mine site strictly as a
caretaker, not as a miner.  Tr. 513.  He died on May 2, 2014. 

The standard cited requires that
MSHA be notified within 15 minutes when anyone dies on a mine site.  In this
instance, notification did not occur until after the citation was issued.  Tr.

513.  The inspector stated that the standard exists because MSHA has
jurisdiction at mines and when someone dies it is part of their responsibility
to determine the cause of death.  Tr. 514.  He acknowledged that some deaths at
a mine are unrelated to mining activity.  For example, one could simply have a
heart attack.  Nevertheless, the circumstances do not change the duty to
report.  Tr. 514.  Mr. Barker’s living quarters at the mine were near a
historical building at the mine.  Tr. 515; GX 19c, photo 1. 

The citation was listed as
non-S&S, no lost workdays, and no likelihood because it was a notification,
that is, a reporting, standard.  Tr. 516.  However it was marked as high
negligence because the operator has been in the mining industry for a long time
and knew of the requirement when a person dies at a mine site.  In fact, the
inspector asserted that Mr. Miller had dealt with a mine site fatality previous
to this one.  Id.  The inspector, speaking to the issue of the
operator’s knowledge of the mine site death, stated that workers at the mine
informed him that the mine operator called the local authorities about the
death.  Tr. 518.  The individual had died a couple of days before the
inspector’s arrival.  Tr. 518.  Mr. Miller did not ask any questions of the inspector
about GX 19.

Mr. Miller testified about GX 19, stating that,
far from Mr. Barker being a “caretaker,” the mine was a caretaker for him.  Tr.

532.  Miller believed that the cited standard’s reference to whether an
operator knew or should have known of an accident occurring was inapplicable
because no accident was involved; instead, the 80-year-old man simply died of
natural causes. Tr. 533.  Miller added that he believed he spoke with someone
in the MSHA district office for clarification on this matter but never received
any response.  The Court then took note that the definition of “accident” under
§ 50.2(h), means the death of an individual at a mine.  Tr. 536.  Mr. Miller
responded to the Court’s observation, effectively acknowledging that he was in
violation of the standard.  Tr. 536.

Taking into account the undisputed
role of the deceased, who was not in any manner a miner, nor one who provided
service to the mine in the way, for example, that an independent contractor
might aid in the mine’s operation, and that this individual, who acted solely
as a caretaker, essentially by his presence to deter trespassers, and also considering
that the mine did contact other authorities, albeit not MSHA, the Court imposes
a significantly reduced penalty of $500.00.  This penalty is consistent with
the “no likelihood,” “no lost workdays,” non-S&S findings on the citation. 
In context, the negligence is found to be “low,” not the “high” designation
made by the inspector.

Citation No. 8698236

Proposed Penalty: $112.00.  Penalty Assessed: $75.00.

Citation No. 8698236, GX 20a, a section 104(a)
citation, was issued on May 13, 2014, at the Plumbago Mine.  This citation was
issued because of an earlier-issued section 104(g)(1) order issued May 6, 2014,
requiring the miners to be withdrawn from the mine until they received
training.  When the inspector returned to the mine for a compliance follow-up
visit on May 13th, the miners were still working at the site, despite not
having received the training.  Tr. 519.  At the time of the return visit,
miners “Britt [McDaniel] and Joseph [Sauer]” were present and they were working
in the shop at the mine site.  Tr. 521, 525.  They informed that they had
received some training, that is, a “safety talk,” from Mr. Miller, but did not
know it if was in compliance with the earlier-issued order.  Tr. 521-22.  Also,
Mr. Miller told them it was okay for them to be working at the site.  Tr. 525. 
The inspector noted that if the required Part 48 training had been done, there
would be a record of that.  Id.

At the time of his follow-up visit
on May 13, 2014, no training plan had been submitted to MSHA for the Plumbago
Mine.  No records were produced for the inspector, nor had the section 104(g)
withdrawal order been terminated.  Tr. 523-24.  The citation was marked as no
likelihood and non-S&S, since it was a violation of a section of the Act
but not a violation of a safety or health standard.  Though the inspector
initially marked it as “reckless disregard,” he ultimately marked the violation
as high negligence, feeling that it met that lesser criteria better. Tr. 525.  Mr.
Miller did not ask any questions of the inspector about Citation No. 8698236.

Mr. Miller testified about the charge of working
in the face of a withdrawal order. He began by stating that after the inspector
raised the matter, he went back to the training records for the Sixteen to One
Mine and determined that the only difference between that mine and the Plumbago
was the communications.  Tr. 537.  However, this testimony related to the
training plan, and not to the training itself.  Tr. 538.  Miller then conceded
that there was a “paper problem” but adamantly asserted that no one was in any
danger, and he believed they were not in violation based on his understanding
of the law.  Miller believed that everyone was trained and also had years of
experience with his operations.  Id.  Miller reiterated that his men
were trained but that, as a small operation, the paperwork lags behind.  Tr.

539.  Small mining operations such as these mines, Miller stated, are
overwhelmed with paperwork.  Id. Though he conceded that he allowed the
miners to go back to work, he probably told them to work on the surface only,
not underground.  Tr. 540.

Miller then asserted that he had
certificates of training for Britt McDaniel, Skyler Noble, Joseph Sauer and
Kevin George, dated July 22, 2014, to support his contention that those miners
were not “newly hired experienced miners.”  Tr. 541-42; RX 6.  He stated that
all the miners did was move over to a different mine, from the Sixteen to One
Mine to the Plumbago.  Tr. 542.  An objection was made by the Secretary as the
document related to the Sixteen to One Mine and it involved annual refresher
training, not newly hired experienced miner training.  Id.  Besides, the
training applied to the wrong mine, and there was the additional issue of it
not being newly hired experienced miner training.  Instead the proposed exhibit
related to annual refresher training.  Mr. Miller countered that the miners
were not “newly hired,” as that would mean, in Miller’s view, that the miners
were coming to the property for the very first time.  Tr. 544.  At most, he
contended, they had made a paperwork error.  The Court observed that, if it can
be shown that the miners met the qualifications at the Sixteen to One Mine,
such a fact could impact the penalty assessment.  The Court allowed the exhibit,
RX 6, a two page document, to be admitted.  Tr. 545. 

On cross-examination of Mr. Miller, he admitted
that RX 6 reflects training records pertaining to the Sixteen to One Mine.  Tr.

548.  Miller stated that he completed the training for Britt McDaniel, Skyler
Noble, and Joseph Sauer.  Though he did not make out the forms, per RX 6, he
did sign them.  Tr. 549.  Miller agreed that he is a certified MSHA trainer and
that, as such, he is aware that annual refresher training is not the
same as newly hired experienced miner training.  Tr. 550.  However, he stated
he did not know that such training has to be site specific. Id.  Mr.
Miller expressed that he could not answer the question of whether every mine
requires its own training plan, stating “there’s too many unknowns” in the
question posed.  As an example of an “unknown,” Miller stated that he did not
know the definition of a mine as used in the question.  Tr. 551. 
Significantly, Miller did concede that there was no training plan in existence
for the Plumbago Mine at the time that the miners signed the training plans
reflected in RX 6.  Id.  Miller agreed that the training record for
Kevin George, per RX 6, was for newly employed experienced miner training on
May 20, 2014.  Tr. 552. 

Continuing with regard to GX 20, relating to the
first working in the face of an order received by Miller regarding this
litigation, when Mr. Miller was asked if he was upset upon receiving the first
104(g)(1) withdrawal order on May 13th, he responded that he knew from his employees
that the order had been issued and that he “probably got on the phone right
away.”  Tr. 554.  He believed that the only issue was the training, not the
paperwork.  Id.  He admitted that when inspector Dan Boylan returned to
the mine on May 13th, MSHA considered the miners at the Plumbago mine to not be
properly trained.  Tr. 555.  However, Miller denied that he sent the miners
back to work without the required training being received.  Id.  His
support for that view is that those miners had the training, albeit for the
Sixteen to One Mine, but that there was no difference in the training for those
two mines, except, as noted,  for a different communication system at the
Plumbago.  Id.  He then suggested, imprecisely, that the next morning
they got the “procedure” (possibly referring to the communication system or
perhaps the whole paperwork for the Sixteen to One Mine) in writing and took it
over to the Plumbago Mine.  Id.  However, he admitted that he had not
submitted a plan to MSHA, but added that he didn’t know he needed to do that. 
Tr. 556. 

On further cross-examination, Miller agreed that
following Inspector Boylan’s issuance of a withdrawal order at the Plumbago
Mine on May 17, 2014, the miners then came to the Sixteen to One Mine and met with
him, informing him of the withdrawal order.  Tr. 560.  Miller then telephoned
MSHA about the issue.  However, he denied asking Boylan “what the hell” he was
doing at the Sixteen to One Mine office.  He could not recall if Boylan told
him he had issued a 104(g) withdrawal order, or whether the inspector asked to
see the mine’s training records.  Tr. 561.  Miller agreed that he knew the
issue was the training of his miners.  Tr. 562.

On May 13, 2014, Boylan issued the working in
the face of an order violation (GX 20a), but he had not delivered the 104(g)(1)
order in person prior to that date.  Tr. 570.  Boylan saw what would become RX
6 on the first day he arrived at Plumbago in connection with the hazard
complaint on May 6, 2014, but determined that it was insufficient because it
related to the Sixteen to One Mine, not the Plumbago Mine.  Tr. 572.  Training
is site specific.  Tr. 572-73. This is because a training plan must address the
geology, hazards, and conditions relevant to the particular mine site and these
mines are at different sites.  Tr. 573. 

Mr. Miller attempted to show that the geology
for the two mines was essentially the same, and by that, he was suggesting that
one could have a single plan which applied simultaneously to both mines.  Tr.

574.  The inspector conceded that the geology was not different; rather the
violation was based on the lack of a plan for the Plumbago Mine.  Tr. 574-75. 
The Court then interjected that even if Mr. Miller could establish that in
every regard the Sixteen to One and the Plumbago mines were identical, it still
wouldn’t affect the requirement to have a separate plan for each mine. Tr.
576.  As noted, such a consideration could be considered in assessing a
penalty.  Mr. Miller noted that he had previously conceded that there was no
separate plan for the Plumbago.  Id. 

Upon consideration of the evidence adduced, the
Court imposes a civil penalty of $75.00.  This takes into account the slight
differences between the plans but still holds Respondent responsible for the
compliance obligation.

Docket No. WEST
2015-78-M (Plumbago Mine)

Order No. 8698224

Proposed Penalty: $112.00.  Penalty Assessed: $112.00.

Inspector Boylan testified regarding the section
104(g)(1) order, Order No. 8698224.[12]  This matter arose in
connection with a verbal hazard complaint received by MSHA on May 5, 2014.  Tr.

386.  The complaint was anonymous and made by telephone.  Thereafter, it was
assigned to Boylan.  The allegation was that the Plumbago Mine had no telephone
and no permit for explosives storage and use, and that there was drug and
alcohol storage, production, and/or use at the mine.  In addition, the
complaint asserted that workers were concerned over news that a caretaker at
the property had died. 

Finding the Plumbago Mine took some
research on the inspector’s part, but three IDs came up using MSHA’s data
retrieval system.  Those ID numbers are reflected in GX 18.  Tr. 386-88.  The
IDs, however, do not provide GPS locations, so the inspector had to drive to
the vicinity and then try to find the mine.  Tr. 389.  Since the information
MSHA had listed the mines as “abandoned,” there were no directions to the mine,
nor to a mine office location.  Tr. 390.  Eventually, the inspector found the
location, coming upon a gated entrance with an old mill and rail dumps.  At
that time he also saw yellow caution tape on the gate leading to the mine.  He
then walked past the gate, arriving at the portal, some 1,700 feet from that
point.  Along the way to the portal he saw signs that mining activity had been
taking place, observing relatively new PVC pipe, a box for power lines, with
the box in the “on” position, and an electric locomotive of the type used for
underground mining.  The tracks were also shiny, an indicator of use.  New timber
and tools were also present outside of a shop and tools were in front of the
portal.  Tr. 395.  These observations led him to conclude that there was mining
activity. 

No one was presently at the site
but he then came into contact with someone who lived on a hill near the mine
site, who informed him that people were coming and going from the site
location.  He told the inspector that the Miller boys were going in there.  Tr.

396.  Soon after that exchange, the inspector related that people started to show
up at the site; they were Britt McDaniel, Joseph Sauer, and Skyler Noble.  Tr.
397.  Those individuals informed him that they were rehabilitating the mine and
had been working there for about six months and were presently about 1,000 feet
into it.  They also confirmed to the inspector that this was the Plumbago Mine.
 Tr. 398.  Interviewing the men, they spoke of their activities at the site,
such as removing poor timber and replacing it with new wood, and checking
ground and roof control for safety.  Tr. 399. 

All of the information led the
inspector to conclude that it was an active mine site.  Checking with his MSHA
office, the inspector received confirmation that no one had reported the mine
as being active.  Further, he confirmed that no training plan had been
submitted for the mine.  Tr. 400.  The individuals he interviewed advised that
they had some training a few months earlier, but as there was no training plan
for the mine, such training was for a different mine.  Tr. 401.  He later
learned that the training the men mentioned was annual refresher training, but
for the Sixteen to One Mine.  Id.  Original Sixteen to One Mine, Inc.,
owns the Plumbago Mine.  Tr. 402.

Based upon his investigation, as described
above, Boylan issued Order No. 8698224, a section 104(g)(1) order, GX 21(a),
invoking 30 C.F.R. § 48.6.[13]  The order alleged that
miners had not received the newly hired, but experienced, miner training.  Tr.

402.  The order withdrew the miners from the mine site, as untrained miners are
deemed to be a hazard to themselves.  A safety meeting was held the day after
he issued the citation.  Tr. 403.  The order was marked as “reasonably likely”
and “S&S.”  The inspector’s issue was the miners not being trained under a
training plan associated with the mine where they were working.  Those miners
had exposure for about six months, working in the formerly abandoned mine, as
they made their efforts at the mine’s rehabilitation.  Training plans must take
into account the specific hazards at the specific mine. Tr. 404-05.  The
inspector also marked the Order as “fatal” because the history of mine
fatalities correlates with untrained miners.  Tr. 405.  Also, the inspector
considered that the mine did not have a ventilation plan or a mine rescue plan.
Tr. 406.  The negligence was marked as “high” because training is “101” for
mining (i.e., a basic requirement) and the operator, being a “blue card holder”
is able to give the training.  This means that the operator, Mr. Miller, as a
blue card holder, was well aware of the training requirements.  Id. 
Subsequently, changes were made to some of the order’s designations, lowering
them.  Tr. 408.

In later testimony regarding this order,
Inspector Boylan stated that he discussed the order with Mr. Miller in person. 
Tr. 566.  This happened on the same date that Boylan came to the Sixteen to One
Mine office after informing the miners of the withdrawal order.  Boylan
affirmed that, through his conversation, it was clear that Miller knew that he
had issued a withdrawal order for failure to train the miners.  Tr. 567. 
Boylan stated that in response Miller was upset and believed that the mine had
been shut down.  The mine was not shut down, but the miners had been
withdrawn.  Id.  Because of the heated atmosphere, Boylan decided not to
issue the order that day.  Instead he returned to the MSHA office, typed out
the order and delivered it via email, confirming by the software program that
the order had been delivered.  Tr. 569.  

Respondent’s post-hearing reply
brief asserts that

[t]he opening quote
of the citation implies that the miners lacked the required training to act as
trained miners.  This is patently false.  These miners have long standing
employment with Respondent. At most this is paper dumbness. There could not be
an allegation of fatal.  Negligence was zero. The proof is in our history.

Resp’t’s Reply Br. 4.  Respondent misses the point.  The order
alleged that miners had not received the newly hired, but experienced, miner
training.  This was established.  Respondent’s contention only serves to show
that it could have easily complied with the requirement.  Training, for
experienced and new miners, is a recognized safety fundamental.  Characterizing
it as “paper dumbness” is a misguided view. 

Order No. 8698224 is upheld and the
findings of the inspector are affirmed.  The Court imposes a penalty of
$112.00.

Citation No. 8698225

Proposed Penalty: $100.00.  Penalty Assessed: $100.00.

Citation No. 8698225, GX 22, citing 30 C.F.R. § 48.3(a)(3),
was also written on the same day as GX 21.  It was based on the lack of an
approved Part 48 training plan prior to the reopening and reactivation of the
Plumbago Mine.  Tr. 408.  For this citation, the inspector marked it as no
likelihood, no lost workdays, and non-S&S.  He so marked it because he
regarded it as a recordkeeping violation.  However, because Mr. Miller was well
aware of the requirements, he designated it as “high negligence.”  Tr. 409. 

The Court upholds the violation and agrees that
“high negligence” is the appropriate characterization.  This finding is also
appropriate when the violation is viewed in the context of Order No. 8698224,
GX 21, and Citation No. 8698226, GX 23, as they are related.  A penalty of $100.00
is assessed.

Citation No. 8698226

Proposed Penalty: $100.00.  Penalty Assessed: $100.00.

Inspector Boylan’s testimony also
addressed Citation No. 8698226, GX 23,
for failing to notify MSHA before starting operations, per 30 C.F.R. § 57.1000. 
Tr. 409.  Prior to the inspector’s arrival at the mine, MSHA had not been
notified of the mine’s rehabilitation status. Tr. 410.  For this violation too,
the inspector marked it as no likelihood, no lost work days and non-S&S,
because he viewed it as a paperwork violation.  Id.  The reasons for the
notification requirement are obvious.  With awareness of mining activity: MSHA
can arrive for help if the situation calls for it; it can make sure there are
training plans; and, more fundamentally, it enables the agency to perform
within its jurisdiction to inspect mines.  Id.  In the six months of
failing to notify MSHA of the activity, at least one inspection would have
otherwise occurred.  Tr. 411.  As before, the negligence was listed as “high”
because the operator has a long history of mining and was well aware of these
requirements.  Id.  In addition, the inspector learned that other
agencies had been notified of the mine’s new activity.  Tr. 413.  Employee Rae
Bell allegedly told the inspector that OSHA had been notified, but that Mr.
Miller deliberately did not notify MSHA.  Id.  Later the same day, the
inspector was at the Sixteen to One Mine and he met Miller there.  Miller
stated MSHA had no jurisdiction at the Plumbago Mine and was upset that it had
been shut down.  Tr. 415-16.  As noted, while the mine had not been shut down,
effectively it had been, as its employees could not work there until their
training had been completed.

Mr. Miller’s cross-examination of the inspector
began with inquiring about the basis for the inspector being on the Plumbago
Mine property, which he characterized as “private.”  Tr. 418.  Miller asserted
that MSHA did not have jurisdiction over the mine.  This, he stated, was based
on Section 4 of the Mine Act, the text of which was read into the record.  That
section, titled “Mines Subject to Act,” provides: “SEC. 4. Each coal or other
mine, the products of which enter commerce, or the operations or products of
which affect commerce, and each operator of such mine, and every miner in such
mine shall be subject to the provisions of this Act.”  Tr. 421.  From this,
Miller asserted that no products entered into production from the operation,
and therefore there was no impact on interstate commerce.  Id.  In
addition, there was not any equipment there that would affect interstate
commerce.  Tr. 422.  Mr. Miller then asked the inspector to distinguish between
mining activity and tunneling.  The inspector stated that mining is “producing,
exploration and development and rehabilitation.”[14] 
Tr. 425.  This claim by Respondent, that jurisdiction was lacking, completely
lacking in merit, has been discussed earlier.

Mr. Miller then testified about the
foregoing, grouped matters, beginning with offering RX 3 for identification. 
The Secretary objected to the exhibit as not relevant, as it reflects an
approved training plan for the Sixteen to One Mine.  These matters all
relate to the Plumbago Mine, and therefore the training plan for another mine
was not material.  However, the Court utilized its discretion and admitted the
exhibit, while noting that the weight afforded the exhibit was a distinct
matter.  Tr. 432.  Miller then moved for the admission of RX 4, the Plumbago
Mine’s MSHA-approved Part 48 underground mining plan, dated June 26, 2014.  The
Court noted and Miller affirmed that his point in offering the exhibit was to
show that it is virtually identical to the plan for the Sixteen to One mine. 
Tr. 433.  The Court noted that the exhibit also can be viewed from a different
perspective, as it shows how easy it would have been for the mine to have been
in compliance, in large measure by just changing the name of the mine on the
title page.  Id. 

The Court upholds the violation and
agrees that “high negligence” is the appropriate characterization.  This
finding is also appropriate when the violation is viewed in the context of
Order No. 8698224, GX 21, and Citation No. 8698225, GX 22, as they are related. 
A penalty of $100.00 is assessed.

Citation No. 8698228

Proposed Penalty: $243.00.  Penalty Assessed: $243.00.

Inspector Boylan also testified
regarding Citation No. 8698228, GX 25a, issued May 7, 2014, and citing 30
C.F.R. § 49.2[15] for the Plumbago Mine’s
failure to “have at least two mine rescue teams available onsite, nor an
alternative compliance under the small and remote mine rescue capabilities.” 
Tr. 437.  Such an alternative plan has to be applied for and sent to the MSHA
district office.  That MSHA office had no such record on file.  Tr. 438.  Small
mines are required to have their own mine rescue team or to have an agreement
with another mine to provide mine rescue.  The Plumbago mine had neither
arrangement.  Tr. 438-39.  The inspector looked for documentation at the mine
and the MSHA district office, but none was at either location.  Tr. 439. 

The inspector marked the citation
as S&S and reasonably likely because, in context, there was no mine rescue,
no ventilation plans, and no escape and evacuation plan, but there was exposure
of miners.  Miners had been working, untrained, and underground for six months
in this formerly abandoned and now rehabilitated mine.  Tr. 439.  He added that
the standard he cited is considered an “emergency standard.”  This didn’t mean
that there was an emergency underway, but rather that mine rescue comes into
play when the event of a disaster has occurred to address the need of rescuing
miners who are in danger underground or trapped.  Tr. 439-40.  For those
reasons, he also marked the citation as fatal.  The citation was issued under
section 104(d)(1) because of his determination that elevated negligence was
involved, that the mine operator knew of the requirement, and that the
requirement for a mine rescue team is basic and fundamental, not to mention
that mine operator Miller used to be involved with mine rescue teams.  Tr.
440. 

In his cross examination regarding
the mine rescue citation, Mr. Miller began with proposed exhibit RX 5, a letter
from “Barrick Goldstrike Mines” to Mr. Miller as the manager of the Sixteen to
One Mine, dated April 1, 2014.  The inspector acknowledged he had seen the
letter before.  Tr. 451.  Mr. Miller asked no other questions of the inspector
about the letter.  Mr. Miller attempted to use the letter to show that Barrick
Mines would help in the event of a mine emergency.  Tr. 452.  The problem with
it is that it references only the Sixteen to One Mine, not the Plumbago Mine. 
Tr. 452.  Miller agreed that the letter makes no reference to the Plumbago
Mine.  Tr. 453.  The Court ruled that the letter was not material to the issue
of whether there were two mine rescue teams available and committed to respond
to an emergency at the Plumbago Mine and therefore proposed exhibit RX 5 was
not admitted. Tr. 454. 

Upon consideration of the evidence
for this citation, the proposed penalty of $243.00 is adopted and imposed.

Citation No. 8698229

Proposed Penalty: $308.00.  Penalty Assessed: $154.00.

For Citation No. 8698229, GX 26a,
issued May 7, 2014, to the Plumbago Mine, and citing 30 C.F.R. § 57.11053, the
inspector cited the lack of an escape and evacuation plan.  A plan was not
available for posting at the mine and therefore, in the event of a mine
disaster, there were incomplete, non-existent, or inaccurate emergency plans. 
Tr. 441.  Such a plan, obviously, is to address an emergency for miners as well
as for rescue personnel or even mine visitors.  Tr. 442.  Mr. Miller stipulated
that the mine did not have such a plan.  Tr. 443, 458.  Taking into account
that the miners told him they had radios to call out in such an event, the
inspector initially marked the citation as non-S&S and unlikely.  However,
after considering other deficiencies, involving the absence of a ventilation
plan and mine rescue training, he then considered it to be reasonably likely. 
Tr. 444.  He also marked the gravity as ‘fatal’ and high negligence.  Id. 
Without such a plan, if an emergency arose, one would not have a specific
escape and evacuation plan, which plan would facilitate rescues, too.  With a
plan, people would know the way in and out and where miners were working.  It
was also designated as high negligence because the operator was well aware of
the standard.  Id.  With the inspector’s reassessment, he then revised
the citation to a section 104(d)(1) violation.  Tr. 445.  Subsequently,
however, as reflected on the fourth continuation page and Exhibit A to the
penalty petition, the inspector later re-evaluated the paper and reduced the
violation to a section 104(a) moderate negligence citation.

Mr. Miller’s cross-examination for GX 26 began
by characterizing the citation as relating to a tunnel.  The inspector stated
that he did not go underground for this citation, as it involved the failure to
have an escape and evacuation plan in the event of an emergency.  Tr.

457.  Apart from the claim that the mine was a tunnel, Respondent presented no
defense to this citation. 

The plan is obviously important,
but given the small size of the mine, in terms of employees, and given the
inspector’s initial assessment that the gravity was unlikely, and that the
miners had radios, a lesser penalty is appropriate.  The Court imposes a civil
penalty of $154.00 for this violation.

Citation No. 8698230

Proposed Penalty: $308.00.  Penalty Assessed: $154.00.

Citation No. 8698230, GX 27, citing 30 C.F.R. § 57.8520,[16]
was addressed.  As originally issued, the violation was written as a section
104(a) citation.  This involved the Plumbago Mine’s failure to have a
ventilation plan.  Such a plan must be filed with the MSHA district office, but
the inspector found none.  Further, no plan was at the mine office and the
miners did not know of such a plan either.  Tr. 447.  The inspector did know
that the ventilation was natural, i.e. not accomplished through mechanical
means.  However, the miners didn’t know where the ventilation was coming from. 
Id.  As with Citation No. 8698229, GX 26a, the inspector revised his
initial citation upward to S&S, likely, high negligence, and fatal, and
converted it to a 104(d)(1) order after considering the other related
violations for lack of mine rescue and escape plans.  In the event of a fire, a
ventilation plan is used to control it, by having knowledge of the airflow in
the mine.  The reasoning for those designations followed that cited by the
inspector for Citation No. 8698229.  Tr. 448.  Just as with Citation No.
8698229, however, the inspector later reduced the negligence from high to
moderate and re-evaluated the 104(d)(1) order to a 104(a) citation, as
evidenced by the fourth continuation page of the citation.  For GX 27, Mr.
Miller stipulated that no plan of the mine ventilation system was set out by
the mine operator in written form.  Tr. 460.  Mr. Miller’s defense for Citation
Nos. 8698228, 8698229, and 8698230 began by questioning his witness, Mr.
Farrell, about mining law in 1872.  Tr. 462. 

The violation is upheld.  Applying the same
reasoning used for Citation No. 8698229, GX 26, the Court imposes a civil
penalty of $154.00. 

Citation No. 8698231

Proposed Penalty: $100.00.  Penalty Assessed: $100.00

Inspector Boylan testified about Citation No.
8698231, GX 28, issued to the Plumbago Mine on May 5, 2014, and citing standard
30 C.F.R. § 57.18009. [17]  Tr. 465.  The standard
requires that a person be designated as the one in charge at a mine in the
event of an emergency.  When the inspector asked about who was so designated,
no one was identified.  Tr. 467.  This was another violation for which the
inspector changed his original designations upward to S&S and reasonably
likely, high negligence and fatal.  Here again, his more serious assessment was
based upon the other violations he found during his inspection, such as the
lack of a mine rescue team, and no escape and evacuation plan.  Tr. 467-68.  He
later reduced the designations back to unlikely, no lost workdays, moderate
negligence, and non-S&S, according to the second continuation sheet
provided with the citation and the penalty petition.

Mr. Miller testified regarding Citation No.
8698231.  Speaking to the competent person issue, Miller asserted that Britt
McDaniels “has been a competent person working for our company . . . [and]
Joseph Sauers is a competent person also.”  Tr. 484.  He added that the mine
had radio communications.  Id.  The Court noted that the standard
requires a competent person, designated by the mine operator, is to be in
attendance but the inspector testified that no such person was present.  Tr.

485.  Miller then stated that Britt McDaniels, Joseph Sauer, and Skyler Noble
were all at the mine that day and that all were competent persons.  Tr. 486. 
Miller then reiterated that he designated McDaniels as the competent person at
the Plumbago Mine and if that person was not there at a given time, Sauers was
there.  Tr. 487.  Miller stated that he so designated those people as competent
persons at the mine, “[p]robably well before May.”  Id.  While he could
not give a precise date, Miller stated that it was approximately in January
2013.  Tr. 488.  Miller’s position was that the miners there at the time of the
citation’s issuance simply didn’t speak up, viewing the inspector as a
“stranger.”  Tr. 491. 

The Court noted that Miller’s
testimony about the date he designated those individuals had implications about
his claim concerning when the Plumbago Mine became active.  Tr. 489. 

In light of the testimony from Respondent, Attorney
Horn recalled Inspector Boylan.  Boylan stated that when he was at the mine he
identified himself as an MSHA Inspector to the miners at that site.  Tr.
505-06.  Boylan reaffirmed that when he spoke with Britt McDaniels, asking if
he knew who the designated person in charge in case of an emergency was, he
responded there was none.  Tr. 506.  On re-cross, Boylan was asked how he
identified himself to “Britt [McDaniel] and Joseph [Sauer].”  Tr. 510.  The
inspector stated he responded: “My name is Dan, I’m with the Mine Safety and
Health Administration, and I’m here on [a] hazard complaint.”  Id.  Mr.
Miller had no questions of the inspector about the citation reflected in GX

28.  Tr. 483. 

The Court finds that this violation was
established and imposes the penalty as proposed.

Citation No. 8698232

Proposed Penalty: $112.00   Penalty Assessed: $112.00

Citation No. 8698232, GX 29, citing 30 C.F.R. §
57.4533(a),[18] issued May 7, 2014,
pertained to the mine shop, which was located right outside the portal, and
asserts that the shop was not constructed of non-combustible materials.  Mr.
Miller then stipulated to the fact of violation.  Tr. 469.  However, Respondent
did challenge the fatal and moderate negligence designations.  The inspector
stated that GX 29c accurately represented what he observed: the shop’s
proximity to the mine portal.  A concern is that, with such combustible
construction, smoke could enter the mine if the shop caught fire.  Tr. 472.  A
fire, and smoke from it, could impede the ability to exit the mine.  Id. 
At the time of the citation’s issuance, there was only one portal, also as
depicted in GX 29c.  Moderate negligence was marked, on the basis that the
inspector had no facts as to how often the mine operator had been on site and
evaluated the mine property.  Tr. 473. 

Regarding Citation No. 8698232, Miller stated
that his remarks applied to that citation and “the other one,” apparently
referring to Citation No. 8698233.  He asserted there are two portals and that
the second portal in fact is more than 100 feet from the building.  He
described the two portals as “like a Y.”  Tr. 492.  Miller asserted that if the
building did catch fire no danger would be presented.  He based this on the
statement that air was coming out of the portal, not going into it.  Despite
that assertion, the violation was abated by installing a sprinkler system, a
fix Miller described as “very expensive.”  Tr. 493. 

Mr. Miller had no questions of the
inspector about the citation reflected in GX 29.  Tr. 483.  Upon consideration
of the record evidence, the Court adopts the findings and proposed penalty
derived therefrom. Therefore, the $112.00 penalty is imposed.

Citation No. 8698233

Proposed Penalty: $100.00.  Penalty Assessed: $75.00.

Citation No. 8698233, GX 30, citing 30 C.F.R. §
57.9300(a)[19] and issued May 7, 2014,
involved the lack of a berm on the roadway leading up to the mine.  The roadway
was elevated and miners used the road to travel to and from the mine.  Tr. 473.
 Photos designated GX 30c were offered to show the cited road condition. 
Though he did not measure the elevation, the inspector estimated it to be about
38 feet in height.  GX 30c, photo two, shows the edge of the elevated roadway.  Also,
clarifying the photo’s depiction, the inspector affirmed that, in photo one of
GX 30c, the roadway cited is to the left of the private property sign.  Tr.

477.  The inspector agreed that, per that photo, he believed a berm was needed
from the private property sign up to the gate.  Id.  No berm was present
along the cited part of the roadway.  The road itself was 18 feet wide.  The
inspector designated the citation as non-S&S and unlikely because it was
not a haulage road, but instead was used to enter or exit the mine.  However,
he did mark it as “fatal” because, if a vehicle did go over the roadway edge,
one would receive fatal crush and impact injuries.  Once again, the negligence
was marked as moderate because the inspector had no evidence that the mine
operator was aware of the condition.  Tr. 476.  Thus, quite favorably to the
mine operator in the Court’s view, the inspector viewed the absence of evidence
that the operator knew of the issue as a mitigating factor.  Id. 

Miller agreed that photo one of GX 30c was a
fair representation, but asserted that photo two was not.  He maintained that
the depth of the rock cannot be seen and that there was a berm that came up to
the mid-axle of the pickup truck.  Tr. 494.  He contended that repeated grading
of the road over the years had created a sufficient berm.  Later, the berm
height was increased when they brought in a loader.  Miller’s position was that
the citation should be vacated.  Tr. 496. 

On redirect for GX 30c, photo 3,
Boylan was asked if he saw a berm in that photo, and he responded that he did
not and that the photo reflected the condition of the roadway on May 6, 2014. 
Tr. 507.  Directed to the right side of the photo where PVC pipe is shown, the
Inspector stated that he did not consider that area of the roadway to have a
berm.  While he agreed that there appeared to be a “bump” or a “little material
raised up” there, it was not a berm, as it was not mid-axle height of the
vehicle that used that road, which was a pickup truck.  Tr. 507-08.  He did not
measure the mid-axle height of the truck because it was so obvious that the
berm was not mid-axle height.  Tr. 508.  The inspector stated that he did
consider the density of forest in that location but added that the majority of
the trees were not up to the roadway’s edge.  It was his view that one who over-traveled
the road would overturn before going into the trees.  Tr. 509.

Mr. Miller had no questions of the
inspector about the Citation reflected in GX 30.  Tr. 483. 

The violation was established. 
However, given the small size of this mine and the minimal traffic along the
cited berm-less road, a penalty of $75.00 is imposed.

Citation No. 8698234

Proposed Penalty: $100.00.  Penalty Assessed: $100.00.

Citation No. 8698234, GX 31, citing standard 30
C.F.R. § 57.4131(a), [20] was issued May 8, 2014. 
For this matter, at issue was timber being stored about ten feet from the
portal.  As mentioned earlier, the standard requires that no more than one
day’s supply of combustible material may be stored within 100 feet of the mine
opening.  Tr. 478-79.  The condition was photographed.  GX 31c, photo 2.  The
wood, the pieces of timber, which the inspector cited, were not related to the
building shown in the bottom center of the photo.  Tr. 479.  Mr. Miller
stipulated that the material cited was less than 25 feet from the portal.  Tr.

480.  The citation was marked as non-S&S and unlikely as the inspector did
not see any ignition sources or other sources of combustion such as liquids or
gases.  Tr. 481.  He concluded that there was more than a one-day supply of
wood by speaking with the miners at the site and learning how long the wood had
been there and upon being informed that the mining progress had been slow
going.  Tr. 481.  He never learned how long the wood had been there, other than
being told it was more than a day.  Id.  He marked the violation as
fatal because of the combustible materials’ closeness to the mine entrance and
because of the adverse impact it would have with mine rescue and escape and
evacuation if a fire were to occur.  Id.  For the same reasons he gave
earlier, no information as to the operator’s knowledge of the condition, he
marked the negligence as moderate.  Tr. 482.  Mr. Miller had no questions of
the inspector about the citation reflected in GX 31.  Tr. 483. 

Regarding the one-day supply of lumber issue,
Miller repeated that there are two adits, forming a Y shape, with the second
adit of the Y being 100 feet from the other.  Miller also asserted that, as any
experienced miner would know, the wood cited was less than a one day’s supply,
especially when one is renovating a tunnel.  Tr. 497.  Miller added that
because the air exits from that portal, even if the material did catch on fire,
no smoke could enter it.  Tr. 498.  He added that there were no sources of
fire.  Miller concluded by stating that his only defense regarding that
citation is that there was not more than a day’s supply of lumber. Tr. 499.

Attorney Horn then asked Miller, regarding GX 31c, photo 2,
whether one of more of the lines depicted in that photo were electrical.  Tr.

501.  Miller admitted that to be the case, but responded that the electrical
line or lines had no bearing on the citation regarding the wood.  Tr. 502. 
Miller then agreed that there was a compressor at the mine and that it was
powered by electricity.  Tr. 504. 

On redirect for Citation No. 8698234, Attorney
Horn asked Inspector Boylan how he determined that there was more than a one
day’s supply of lumber.  The inspector advised that it was based on his
interviewing the miners.  Further, nothing else he learned contradicted that
view.  Tr. 509.

Upon consideration of the record evidence, the
Court adopts the findings in the citation and the proposed penalty derived
therefrom.  Therefore, the modest $100.00 penalty is imposed.

Citation No. 8785247

Proposed Penalty: $100.00.  Penalty Assessed: $75.00.

Inspector Nicholas Basich testified regarding Citation
No. 8785247, which pertained to an alleged violation of a vehicle with no
functioning brake or tail lights at the Plumbago Mine.  The cited standard was
30 C.F.R. § 57.14100(b).[21]  Respondent agreed to
the conditions and practices section of the citation, conceding the vehicle did
not have functioning brake and tail lights, per item 8.  Tr. 204.  That the
lights were non-functioning does not fully describe the condition, because the
vehicle had no such lights present at all.  Tr. 205.  Miller did challenge the
claim that the condition had been that way for about two months.  A photo of
the vehicle appears in GX 32c.  The inspector did acknowledge the presence of a
bar with a red rectangle on the back of the cab, but he did not know if it was
a functioning brake or warning light.  However, he did not consider it to be a
brake or warning light. Tr. 207.  The hazard is, with non-functioning lights,
persons might be unaware of the vehicle stopping. Tr. 208.  In addition, miners
were in the truck’s seats.  However, the inspector listed the violation as
non-S&S and unlikely.  Tr. 209.  He believed the condition had existed for
two months.  The inspector acknowledged learning that the needed lights had
been purchased but not yet installed.  Tr. 210.  The inspector listed the
negligence as “high” because the condition had existed for some time and the
operator was aware of it.  Id.  As such lights are warning devices, the
inspector stated that their absence is plainly a safety defect.  Id. 

Mr. Miller objected only to the high negligence
designation for Citation No. 8785247.  To begin, he stated that the light on
the top of the cab was a brake light.  Tr. 213.  Further, the truck was never
used at night, and in Miller’s view, it did not need tail lights.  In addition,
he took issue with the inspector’s claim that people would not be able to see
the truck stop without the presence of such lights.  Though he ordered his
workers to install the lights, they failed to do so.  Tr. 214.  Miller felt the
negligence should be low or at least moderate.

The truck was used to transport miners to
various mines.  At that time he employed five miners.  Tr. 216.  The truck transported
men over a seven mile stretch of county road.  Tr. 217.  Miller continued to
object to calling the site a mining operation.  Rather he called it a
“rehabilitation of an abandoned piece of property.”  Id.  As noted,
Respondent’s claims that Plumbago is not a mine have been rejected.

Considering Mr. Miller’s credible testimony on
this matter, the Court agrees that high negligence is inappropriate and that
moderate negligence is more accurate.  Accepting the other designations made by
the inspector, including that the violation was properly determined to be
non-S&S, the Court imposes a penalty of $75.00 for this violation.

Citation No. 8793615

Proposed Penalty: $100.00.  Penalty Assessed: $100.00.

Citation No. 8793615, GX 33, citing
30 C.F.R. § 57.12028,[22] was issued on September
4, 2014, for the Plumbago Mine.  Tr. 579.  That citation related to testing for
continuity and resistance for electrical components, a requirement to be
performed annually as well as after installation and changes to such electrical
components.  Tr. 580.  The inspector could find no record of the test having
been performed and he also learned, through interviewing the miners, that it
had not been done.  Id.  The standard is important as a failsafe and to
ensure that the electrical equipment is operating correctly and safely.  Id. 
Such testing must be recorded.  The inspector inquired at the Sixteen to One
Mine office and at the Plumbago Mine site as to such records, but none were
presented.  Tr. 581.  The inspector also inquired, apart from the lack of
records, whether the testing had been done, and learned from mine employee
Britt McDaniel that it had not and that he would have been the person to do
that.  Tr. 582.  Mr. Miller then stated that, assuming the inspector was
accurately testifying about Mr. McDaniel’s conversation, the citation was
“deserved.”  Tr. 583.  Miller then stipulated that the gravity and negligence
markings for the citation were as written (unlikely for gravity, restricted
duty or lost workdays, non-S&S, and moderate negligence).  Id. 

Accordingly, based on the
foregoing, the Court imposes the same $100.00 penalty as proposed by the
Secretary.

Citation No. 8793617

Proposed Penalty: $100.00.  Penalty Assessed: $50.00.

Citation No. 8793617, GX 35, issued September 4,
2014, involves standard 57.15030,[23] and the requirement for
a weight test for self-rescuer devices.  Those devices must be maintained in
good condition and there is a requirement that they be inspected, with a weight
test, within 90 days.  Tr. 585.  The weight test is not explicitly required in
the standard.  Rather, a program policy manual provides for such test.  Mr.
Miller then stipulated to the fact of violation for this citation as well.  Tr.

586.  He also agreed to each of the designations on the citation, save the
marking that it would be fatal.  Tr. 587.  With that designation, the last item
in dispute for that citation, the inspector explained that he marked it as
fatal because it is a life-saving device, called into use in an emergency and
that, if it did not work when needed for an escape, the consequences would be
fatal.  Tr. 588. 

Mr. Miller, objecting to the fatal
designation, stated that there were two or three devices out of compliance with
the 90 day requirement and essentially asserted that his son, an employee at
the mine, was behind in the paperwork, and at that, he was late by only two to
four days.  Tr. 589.  As to the fatality designation, Mr. Miller stated that
air rapidly exits from the mine and the tunnel itself is very short.  Tr. 590. 

The inspector was then recalled. 
He acknowledged that the weight tests were not many days overdue but that he
still believed the fatal designation was appropriate.  Though unlikely that the
devices were in a non-maintained condition, he still asserted that if they did
not function, the expected injury would be fatal.  Tr. 591. 

Given that not all the devices were out of
compliance and that the period of non-compliance was only a few days, the Court
assesses a civil penalty of $50.00 for this conceded violation.

Docket No. WEST
2015-158-M (Sixteen to One Mine)

Citation No. 8785248

Proposed Penalty: $100.00.  Penalty Assessed: $25.00.

Inspector Nicholas Basich testified regarding
this citation, which alleged a violation of 30 C.F.R. § 57.14207.[24] 
Miller stipulated to the “Condition or Practice” section of the citation — that
the truck was parked without its parking brake being set — but he asserted that
it was on level ground.  He took issue with the moderate negligence designation. 
Tr. 220.  Miller also disputed that the condition exposed miners to the hazard
of contact by a slow moving vehicle.  Inspector Basich stated that if the
vehicle were bumped and it jumped out of park, it could have begun a slow roll,
exposing miners to bumps or bruises.  Tr. 221.  However, the inspector conceded
it was very unlikely that, if bumped, the truck would jump out of park.  Tr.

223.  The truck was not being used at the time he cited it.  He marked it as
moderate negligence because the standard is one within the “Rules to Live By,”
meaning many accidents have been associated with it.  Tr. 222.  MSHA wants mine
operations to set the parking brake in all instances, not simply when a vehicle
is on a grade.  On cross-examination, referring to the photograph in GX 10c,
the inspector agreed that there was a bank and a tree on the other side of the
truck and it was his understanding that the truck had recently been brought to
the location where he observed it.  Tr. 226.  There was no indication that the
truck had been tagged out, nor did the miner accompanying him assert that.  Id. 

Mr. Miller then testified about the citation,
stating that there was no way another vehicle could bump the truck in that
location.  Tr. 228.  Further, he stated that the truck, a used vehicle, had
been recently purchased and had not yet been put in service.  Tr. 229.  Miller
also disputed that two people worked at that location.  Tr. 230.  Miller
couldn’t speak to whether it had been tagged out, but he maintained it was at
that location and not to be used until it had been checked out.  Id. 
Therefore, he believed the citation should be vacated.  Tr. 231.  On
cross-examination, he did acknowledge there was another vehicle near the cited
one but contended that it was also there for repair work to be done.  Tr. 233.

Upon consideration of the testimony, including
the small size of the mine, the Court finds that the negligence was low and
imposes a penalty of $25.00.

Citation No. 8785249

Proposed Penalty: $100.00.  Penalty Assessed: $ 50.00.

Inspector Basich testified regarding Citation
No. 8785249, GX 11a, citing 30 C.F.R. § 57.6132(a)(6)[25]
and issued September 9, 2014, at the Sixteen to One Mine.  While inspecting the
area around a magazine, the inspector noticed there was no sign informing that
explosives were present.  Tr. 236.  The standard requires posting signs so that
one shooting at the signs would not accidentally hit the magazine.  Tr. 237. 
Shooting at signs is apparently a common practice in rural areas.  Tr. 250.  GX
11c consists of photographs of the cited condition and its abatement, and the
white box depicted in the center of photo one is the magazine.  Tr. 237-38; GX
11c.  Detonators were stored in the magazine.  The posting requirement applies
to all approaches.  Tr. 239.  There was one sign on an A frame but it had
fallen and therefore was not readily visible upon approaching the magazine.  Id. 
From two approaches to the magazine, signs were not readily visible.  Photos
six and seven of GX 11c show the abatement of the condition.  Tr. 241-42. The
citation was marked as non-S&S and unlikely.  This was based on the fact
that those who worked at the mine site knew of the magazines.  Tr. 242. 
However, the inspector deemed the negligence as moderate because these
standards are well known in the mining industry.  Tr. 243.  Also relevant to
the negligence determination was that it was obvious that the signs were not
present.  Tr. 244.  He marked the injury as “fatal” because an explosion at the
magazine could produce such a result.  Id.  Two magazines were cited for
the one violation; one was the detonator magazine and the other was the high
explosive/blasting agent magazine.  Their relative locations were about 100 to
150 feet apart.  Tr. 245. 

On cross-examination, the inspector stated that
simply seeing the magazines and no readily visible signs prompted the
citation’s issuance.  Tr. 246.  For the other magazine, the “powder” magazine,
a sign was visible, but only from one direction.  Tr. 247.  Thus, the inspector
agreed that there was a sign at both magazines but they were not readily
visible.  Id.  He also agreed that the miners knew of the magazines’
locations.[26]  Tr. 248.  The inspector
did sum up the issue with regard to both magazines.  For photo one in GX 11c,
depicting the detonator magazine, there were two approaches to it.  Tr. 253. 
For that magazine, he saw only one sign and it had become loose so that it was
not readily visible.  However, two signs were needed.  For the high
explosives/blasting agent magazine, shown in GX 11c, photo 4, there were also
two approaches.  Tr. 256.  Here, too, there was only one sign.  Tr. 257. 

Mr. Miller then testified about this citation
involving the warning signs.  He did not believe that any citation should have
been issued.  Other than the miners, anyone else on the property would be
trespassers.  However, he then volunteered that a creek passes through his
property and that people are permitted to walk along it; they are not
trespassing.  Tr. 259.  Miller viewed adding more signs as an invitation
encouraging people to shoot at them.  Tr. 260.  Therefore, he wanted the signs
to be in the least conspicuous location.  Tr. 262.  Miller also was of the
opinion that there was only one approach, not two, to the magazines.  Tr. 261. 
In addition, Miller did not think that a bullet would ignite the magazines,
because the contents are non-detonating.  Tr. 263.

This violation was established, but the Court
takes into consideration that, while they were insufficient, there were signs
present.  Upon further factoring in the small nature of this mine and Mr.
Miller’s testimony (though his views were misplaced about whether more signs
were ill-advised, as the standard requires appropriate warning signs from each
approach), the Court views the negligence as less than moderate.  A civil
penalty of $50.00 is imposed.

Citation No. 8785250

Proposed Penalty: $100.00.  Penalty Assessed: $75.00.

Inspector Basich also testified regarding
Citation No. 8785250, GX 12, issued on September 10, 2014, and alleging a
violation of 30 C.F.R. § 57.8520.[27]  Tr. 265.  This dealt
with alleged deficiencies in the mine’s ventilation plan.  Such plans, while
not needing MSHA’s approval, still must be submitted to the agency.  The
inspector asserted that the deficiencies included a failure to indicate air
flow direction on the plan.  Tr. 267.  Also, the plan did not indicate seals
for a vent, though there was a vent and sealed workings. The plan needs to
indicate abandoned workings and seals.  Tr. 268.  Areas withdrawn from the
ventilation system need to be on the plan, too.  For such areas, the plan has
to inform if air is flowing through withdrawn areas.  Also, locations of known
underground openings adjacent to the mine must be indicated on the plan. 
Diagrams, descriptions, or sketches showing how ventilation is achieved in each
typical working place and the approximate quantity of air and the size and type
of auxiliary fans, as well as the ventilation quantity and direction of airflow
for current working places at the time of an inspection, must be provided. 
Still, despite the deficiencies alleged, the citation was marked as unlikely
and non-S&S because the inspector found that the air was good.  Tr. 270. 
However, because of the importance of the information in a mine emergency, the
citation was marked as fatal, in terms of expected injury.  Id.  The
lack of such information would hinder a mine rescue operation.  Negligence was
deemed “moderate” because the mine had submitted a plan, and the inspector’s
review of the mine’s records reflected that some of the deficiencies had been
raised to the mine at a prior time. 

During cross-examination, the inspector stated
that he did not believe that the plan’s deficiencies were made knowingly.  The
inspector confirmed that he had been told by a mine employee that there were
abandoned areas that had been sealed off.  However, the inspector did not
dispute that if it were asserted there were no seals at the mine, he could not
contradict such a claim, except for the one employee who told him there were
seals.  Tr. 276.  The inspector agreed that he did find a drawing in the
records about the seven existing openings.  Id.  Asked if such a drawing
would aid a mine rescue effort, the inspector’s response was that this
information would need to be part of the ventilation plan, not merely among the
mine’s records.  Tr. 276-77.  As noted, the inspector agreed that if the mine
had no seals, the ventilation plan need not reflect the absence of seals. 

In the course of cross-examination, the
Secretary’s Counsel stipulated that the ventilation plan does not reference
mine rescue operations.  Tr. 279.  Respondent offered for identification an
escape and evacuation plan, proposed exhibit RX 2, and the Secretary raised an
issue about its materiality to the alleged violation.  Tr. 280.  Mr. Miller
described it as “an Exploration and Operation Nonspecific Escape and Evacuation
Plan.”  Tr. 278.  Some confusion developed about the nature of the exhibit and
its materiality to the citation.  The inspector could not recall if the
proposed exhibit was among the papers presented to him when he asked to see the
ventilation plan.  Tr. 281.  He viewed the proposed exhibit RX 2 as an escape
and evacuation plan.  Tr. 282.  He acknowledged that RX 2 shows some
information about air flow and quantity and direction but he could not recall
if the mine’s ventilation plan was more specific or not.  The inspector could
not identify whether the plan reflected in RX 2 was the plan submitted to MSHA. 
Tr. 283.  Despite the momentary confusion, the inspector confirmed that
whatever ventilation plan was presented to him on the day of his inspection, it
had the deficiencies he described.  Tr. 284.  RX 2 was later admitted into
evidence.  Tr. 359.

The inspector considered the citation to be a
recordkeeping violation.  Tr. 300. Inspector Basich expressed the view that the
accuracy of a mine’s ventilation plan would be critical to mine rescue and
recovery efforts, and it could impact how quickly such operations could proceed
and such delays could create a fatal condition at the mine.  He elaborated,
using the example of a mine fire and knowing how oxygen would be supplied to
that fire, that knowing the direction smoke moves in such an event would be important. 
Tr. 309. 

Mr. Miller then spoke to Exhibit GX 12.  He
stated that his mine does not use seals.  He asserted that the employee who
referred to seals meant barricades, diversions, or tarps to direct air, but
they are not seals.  Tr. 314.  He acknowledged that, based on what he learned
from the inspector’s testimony, the map had deficiencies.  Tr. 315.  He also
admitted that, in order to terminate the citation, the map had to be updated.  Id. 
RX 2 is the map that the mine had at the time of the citation.  Tr. 315.  It
was Miller’s testimony that the mine made good faith efforts to have the plan
contain all the required information and this included working with an MSHA
inspector some three or four years ago, all in an attempt to have the mine’s paperwork
be compliant.  On that basis, Miller believed that no negligence should be
assigned to the violation.  Tr. 316.  Low or moderate negligence would be
unfair because the mine has worked hard with MSHA to be in compliance on its
paperwork.  Miller also believed that no lost workdays should have been marked
because there was no likelihood for such an event to occur.  This is because of
the site specifics, because of ways to get out of the mine, and because of the
lack of fuel for a fire, among other reasons.  Tr. 318-21.

The violation is upheld.  Miller essentially
conceded the fact of violation.  Upon consideration, taking into account
testimony regarding Miller’s prior efforts and that the record was not clear as
to the presence, or the lack of, seals, the Court deems the negligence to be
slightly less than moderate.  As noted earlier, for each of the
contested citations, at both mines, these are very small mining operations,
with size being a penalty factor to consider.  Given these factors a civil penalty
of $75.00 is imposed.

Citation No. 8793618

Proposed Penalty: $100.00.  Penalty Assessed: $50.00.

Testimony was received with regard to Citation
No. 8793618, GX 6a, issued on September 9, 2014.  For this matter, citing 30 C.F.R. § 57.14100(b),[28]
which was in the upper shop, the inspector observed a hook for a two-ton hoist
with its safety clip incorrectly installed, as it was on the outside of the
hook.  Tr. 333-34.  The hoist was not being used when the inspector observed
the condition of the hook, but it was ready and available for use.  Tr. 333. 
The clip, when on the inside of the hook, prevents material from sliding out of
it.  He considered the clip, in the condition observed, to be a safety defect. 
Tr. 334-35.  GX 6c, a photo, displays the clip when correctly installed.  Tr.

335.  The inspector marked the violation as non-S&S and unlikely because
the hook was rarely used.  He determined that any injury would be lost workdays
or restricted duty because the hook was being used within its capacity.  It
would be when positioning something that had been lifted when the risk of the
item coming off the hook would be greater.  Tr. 336.  The negligence was marked
as moderate because it had not been reported to management and the person who
incorrectly installed the clip didn’t recognize that it was incorrect.  Tr.
337. 

On cross-examination by Mr. Miller, he began by
focusing on the words “in a timely manner” from the cited standard, § 57.14100(b). 
However, those words were not important to the violation in this instance.  The
standard is directed at safety defects, and when such defects are present, the
standard directs that such defects be corrected in a timely manner.  Tr.
338-39. 

Jonathan Farrell testified for Respondent
regarding the hoist citation and GX 6c, stating that he had used that hoist. 
He agreed that the purpose of the clip is to keep a chain or strap from sliding
off the hook.  However, he contended that, if one uses a chain or strap that
uses the hook fully, the clip needs to be bypassed for such circumstances and
then returned to its normal position.  Clarifying his remarks, Farrell
contended that the clip would then be repositioned so that it once again acts
as a safety device.  Tr. 364.  While he conceded that the clip is meant to be
moved back and forth, but not sideways (i.e., left or right), Farrell
maintained that as a practical matter it was so moved to accommodate such
larger chains or straps.  Tr. 365.  Farrell contended that the clip itself was
fine; it was not replaced.  Abatement was achieved by simply repositioning it
on the hook.  Id.  However, Farrell agreed that if the clip for the hook
had been used as depicted in GX 6c, its purpose would’ve been defeated.  Tr.
366.

Mr. Miller then added his own testimony about the
hook and clip citation, stating that his experience using the clip was the same
as Farrell’s.  Id. 

As the Secretary noted in the
post-hearing brief:

Farrell [the mine’s
surface superintendent] agreed that the safety hook is intended to keep chains or
straps from sliding off the hook when the hoist is in use.  (Tr. 362-363). 
Farrell also testified that when the chains or ropes that are too large to fit
through the hook opening with the safety clip attached, that the clip is
bypassed by placing the clip outside the hook, as it was found by the
inspector, and then replacing the clip inside the hook for [subsequent] use. 
(Tr. 363).  On cross-examination, Mr. Farrell admitted that this is not how the
safety clip is designed to be used; generally the clip moves frontwards and
backwards within the bounds of the hook and [that it] is not designed to move
around the tip of the hook to the outside.  (Tr. 365).  Farrell also admitted
that if the hook were used in the condition in which it was found by the inspector,
that the intended safety protections provided by the safety clip would have
been defeated.  (Tr. 365-366).  That the safety latch “could” have been
replaced prior to use does not mean that the latch “would” have been replaced
prior to [its next] use.  Respondent admit[ted] that had the hoist been used in
the condition in which it was found by the inspector, it would have been a
safety hazard. (Id.).

Sec’y Br. 16.

The violation was established. 
Given the small size of the mine, the infrequent use of the hoist, and the
“unlikely” gravity designation, the Court assesses a civil penalty of $50.00
for this violation.

Citation No. 8793620

Proposed Penalty: $100.00.  Penalty Assessed: $75.00.

Regarding Citation No. 8793620, GX 8, issued
September 10, 2014, to the Sixteen to One Mine and citing 30 C.F.R. § 57.4131(a),[29] the issuing inspector
observed combustible material stored about 15 feet from the mine opening at the
800 portal.  Tr. 342.  GX 8c is a photo of the condition observed by the
inspector.  His concern was with the wooden rails and the pallet, per that
photo.  Id.  As the wood appeared to be weathered, the inspector
believed that condition increased the chance of it being combustible.  He
concluded that the wood was more than a one day’s supply because it was being
stored there.  In addition, he saw the same material there the day before he
issued the citation.  Tr. 345.  The hazards associated with such storage, if it
were to catch fire, are the risk of smoke entering the mine and impeding the
ability to leave the mine portal.  Tr. 345.  He stated that the mine “probably
[had] quite a few [portals]” but the 800 portal, which is in the photo GX 8c,
is the main one.  Tr. 346.  Miners did work underground that day.  As noted,
the mine uses natural ventilation.  Though he could not recall the weather on
the day the inspector issued the citations, he remembered it “being fairly
dry.”  Tr. 347.  The citation was marked as unlikely and non-S&S, because
he did not see any immediate ignition sources around.  In addition, while it
was more than a one day’s supply, the amount was not very large.  Id. 
Lost workdays and restricted duty was marked because he believed that could be
the effect of smoke inhalation.  Id.  Negligence was marked as moderate
because it had not been reported to management. 

On cross-examination, the inspector repeated
that he considered the material to be more than a one day supply, because he
observed it the previous day.  Tr. 349.  Mr. Miller asked if the standard’s
concern was over the quantity of timber, not the time it remained at the
location.  The inspector expressed that the intent was to permit such material
near the portal when it is intended to bring it into the mine, as opposed to
storing it outside the portal.  Tr. 350. 

Regarding Citation No. 8793620, Mr.
Miller stated that the amount of wood was very small.  It was used as track
ties to fix rails.  He agreed with the inspector’s designation of unlikely, as
there was no possibility of smoke going into the mine at that location, as the
air exits there.  Tr. 370.  Miller maintained that the wood the inspector saw
was in transit to the mine and that it was impractical to store it elsewhere. 
Tr. 368-70.  He also asserted that the amount of wood did not impede the entrance
to or exit from the mine.  Tr. 371.  Mr. Farrell also testified about this
citation.  It was his position that the standard speaks to the quantity of
wood, not the length of time it is so located.  Tr. 373.  He contended that the
amount of wood depicted in the photo was less than a one day’s supply, and as
such he believed it could remain there indefinitely.  Id.    

In the Secretary’s cross-examination of Miller,
regarding the combustible material citation, Miller did not deny that the
combustible material had been as depicted in GX 8c for more than one day.  Tr.

381.  He also agreed that a day’s supply of lumber will vary from day to day,
depending on the mine’s particular needs.  Id.

The citation, issued at unlikely, non-S&S,
lost workdays or restricted duty, moderate negligence, and affecting one person,
was assessed at $100.00.  Given the inspector’s remarks about the attendant
circumstances,[30] and the small size of
the mine, a civil penalty of $75.00 is imposed for this demonstrated
violation. 

Citation No. 8793621

Proposed Penalty: $100.00.  Penalty Assessed: $100.00.

Inspector Boylan testified about Citation No.
8793621, GX 9, issued September 10, 2014, at the Sixteen to One Mine for an
alleged violation of 30 C.F.R. § 57.11053,[31] pertaining to shortcomings with the mine’s escape and
evacuation plan.  The plan did not illustrate escape routes available from the
working area which was then at the end of the 800 level.  Tr. 351-52.  Thus,
this violation was based on the escape routes not being indicated on the map. 
Tr. 352.  The escape and evacuation plan was posted, albeit with the cited
deficiency, throughout the mine.  While at that location, the inspector asked
the miners how they could get out if they needed to escape.  The miners
explained how they would escape but none of it was explained on the map.  Tr.
353-54.  In addition, the importance of the information is that such escape
routes need to be inspected at regular intervals.  Tr. 354.  However, as the
miner the inspector spoke with, Reed Miller, Mr. Miller’s son, indicated that
he knew how to get out, the inspector marked the violation as “unlikely.”  Tr.
354, 357. 

Still, the inspector marked the
injury, if the event were to occur, as fatal.  Tr. 355. Negligence was deemed
as moderate because there were postings of the plan, but there was no update
for the working area.  Id.  The inspector believed that RX 2 was the map
he saw underground, and about which he believed was deficient, as noted in his
citation.  To be sufficient, the map needed to illustrate the paths for escape
from the mine.  Only the main travel way, marked in yellow, was indicated, but
two evacuation routes also needed to be listed.  Tr. 359; RX 2.  A single
escape route is permitted only at the very beginning of a mine’s excavation,
but in such circumstances there must be a rescue chamber.  Tr. 360.

On cross-examination by Mr. Miller, the
inspector was shown RX 2, which was still not an exhibit at that point in the
hearing, and the inspector acknowledged seeing a pick and shovel depiction on
it.  Tr. 356.  However, that concession did not undercut that the violation was
clearly established.  As the Secretary observed in the post-hearing brief:

At the time of the
inspection, there were miners working at the end of the 800 level who, when
questioned by the inspector, could not indicate a designated escape route. . .
.  While there were escape routes available from the area where the miners were
working, those routes were not clear to the miners nor were they reflected on the
mine Escape and Evacuation Plan that was posted throughout the mine and which
was given upon request by mine personnel to the inspector.  (Tr. 352-354). . .
.  [B]ecause in the event of an emergency, there needs to be established escape
routes so that mine rescue and emergency personnel know where to find miners,
the inspector found that the failure to designate escape routes and mark them
on the Escape and Evacuation Plan to reasonably be expected to cause fatal
injuries.  (Tr. 355).  And, because there was an Escape and Evacuation Plan,
but that plan had not been updated, the inspector found that the operator had
engaged in moderate negligence.  (Id.). 

Sec’y Br. 19. 

Mr. Miller testified about the escape and
evacuation citation.  He contended that one entry and exit is allowed at a mine
in the “steering phases of exploration.”  He asserted that the mine was in such
a phase, that is, this was an “exploration project.”  Tr. 374-75.  They were
not in production.  He believed that RX 2 meets the standard’s requirements. 
Tr. 376.  He added that the location was less than 2,500 feet from the portal
to the workplace.  He also asserted that there are other ways to get out of the
mine, but if the mine were to designate them, MSHA would then inspect them.  Tr.

375.  The government then cross-examined Mr. Miller.  Referring to GX 9, Miller
stated he was referring only to his son, Reed.  Tr. 376.  As for the other
individuals Miller mentioned, he asserted they were not miners, but were task
trained.  Tr. 377.  He asserted however that those individuals were very
familiar with the mine and that they knew “all the ins and outs of it.”  Id. 
Again, Miller asserted that no secondary escapeway is required at the mine.

The Court asked questions
pertaining to GX 9 and the escape and evaluation plan.  Miller agreed that the
plan did not illustrate the escape routes for the working area of the mine.  He
also agreed that, per RX 2, the map of the escape and evaluation plan is
depicted by the yellow line.  Tr. 382.  He agreed that only a single route is
shown, but maintained that only one route was required.  Id. 

Further, addressing Respondent’s contentions in
defense, the Secretary accurately observes that RX 2 was a deficient Escape and
Evacuation plan, noting that the

only escape route
indicated on the map is the main travelway; the travelway is not especially
designated as an escape route but is a generally accepted escape route.  (Tr.
358-359).  And, even though each mine is required to have two escape routes at all
times, only one is reflected on the map.  (Tr. 359, 382).

Sec’y Br. 19-20.[32]  

The violation was established.  Upon
consideration, given the importance of escape and evacuation plans for all mines,
the Court imposes the same, modest penalty amount proposed by the Secretary in
the amount of $100.00.

Docket No. WEST
2015-240-M (Plumbago Mine)

Citation No. 8793801

Proposed Penalty: $100.00.  Penalty Assessed: $50.00.

Inspector Rogers spoke about Citation No.
8793801, citing 30 C.F.R. § 57.11012,[33] which the Court
described as the “bulkhead violation.”  Tr. 127, 178; GX 36a.  This occurred at
Respondent’s Plumbago Mine.  Tr. 129.  The citation stated:

There was no
bulkhead or any other form of protection, installed at the #1 raise to prevent
material from sliding down the approx. 55 degree dip angle and contacting
miners as they travel this area. This raise had been mined-out previously and
an ore chute, ladderway and some stalls were installed. The old dilapidated
timber and material build-up, posed a fall of material hazard to miners
traveling the main haulage.

For this matter, Respondent agreed
with the condition and practice cited, including sections 10 and 11, listing
the gravity as unlikely and the negligence as moderate, except where the citation
asserted that “[t]he old dilapidated timber material buildup posed a fall of
material hazard to miners.”  Tr. 127.  The area cited involved a chute and a
ladder.  Tr. 136. The inspector cited a mined out area where he found either a
slick or a slide or a hanging wall that was on the primary travel way.  That
travelway was for ore cars or personnel on foot.  There were no bulkheads[34]
and therefore any materials, if they came out, would come at the hip or
mid-torso level of a miner.  Also the drift (i.e., tunnel) was not very wide,
only about 8 feet or less, therefore there would be exposure every time one
passed that area.  Tr. 129. 

Describing the area of the cited
condition, the inspector stated that the travelway had a 55 degree angle and
there was a ladder that went up that raise.  See GX 36C.  He asserted
that “[t]here appeared to be some loose material that was on the right rib.” 
Tr. 131.  He conceded that the material he was concerned about wasn’t probably
all that loose, but if any did come down it would come into the drift.  Tr.

132.  Because the materials were not “all that loose,” he marked the violation
as unlikely and non-S&S.  Id.  Negligence was marked as moderate,
because in his estimation there did not appear to be a high degree of hazard.  Id. 
It was the failure to install a bulkhead that drove his conclusion that the
negligence was moderate.  Similarly, he marked the injury as lost workdays or
restricted duty because the angle any material would take was not severe.  This
led him to conclude that no fatality would result.  Tr. 132-33.  Respondent was
permitted to install a nine-wire type (i.e., material similar to a chain link
fence) bulkhead to remedy the problem, as that means would also allow one to
visualize the area above.  This abatement satisfied the inspector because,
again, his concern was that smaller materials could strike a miner.  If larger
items had been his concern that remedy would not have been acceptable.  Tr.
134. 

On cross-examination, the inspector stated that
he saw other areas that had a raise, where bulkheads had been installed for
support.  He reaffirmed that he did not climb the ladder at that location.  Tr.

135.  He agreed the ladder was not recently installed and he found no troubling[35]
amount of rock fall below or around it.  The inspector did not know what the
angle of repose was of the rock left in the chute or raise.  Tr. 136. 

The inspector believed that the Plumbago Mine
had two to three employees.  Tr. 137.  In his opinion, they were decent hands,
that is, fairly knowledgeable individuals.  Id.

The Court had a few questions, beginning with GX
36c, the photograph associated with the citation.  The inspector agreed that it
was taken from the bottom, and directed upwards. His concern was material
falling down, from the top area of the photo.  Tr. 138.  The bulkhead’s
function, being placed at the bottom, where the inspector was standing when
taking the photo, would be to act as a barrier for anything which might fall
down.  Tr. 139.  This area, within which things could fall down, was about 17 and
a half feet wide.  The opening from where he was standing was from left to
right, and he was about in the centerline of that.  Id.  The raise in
the photo goes up at an angle.  Although the area cited had been mined out, it
was along a primary travelway.  Tr. 140.  Without the bulkhead, material
falling from above could potentially strike miners traveling by that area.  Tr.

141.  Again, abatement was achieved by installing a wire mesh bulkhead, not a
wood bulkhead.  The bulkhead would span the approximate 17 feet comprising the
bottom length of the travel area.  Tr. 142.   

In his defense to the bulkhead citation,
Respondent Miller testified that he believed Plumbago is not a mine, but rather
an abandoned piece of property, that once was a mine.[36] 
Tr. 178.  It was his view that no bulkhead was needed because there is no
evidence of debris below.  Tr. 179.  Thus, he asserted that nothing could fall
down from above.  Respondent contended that the ground above was very competent
and therefore nothing could fall out from above.  As noted, Respondent took
issue with calling Plumbago a mine.  Rather, he asserted that it is a tunnel. 
There was no intention of mining.  Tr. 180.  Respondent asserted that there was
only one stull present.  It appears to the left side of the ladder.  A stull is
a single vertical pole.  It is used instead of having caps or sets or rock
bolts.  Id.  Respondent Miller, while admitting that he has not gone up
the ladder, stated that someone else had done so.  He also asserted that the
scene captured in the photo exhibit has probably been that way for more than 30
years.  Tr. 181.  Thus, having assessed the situation, Respondent maintained
that it would be frivolous to install a barricade.  Tr. 182.  Respondent
asserted that generalities about other mines simply did not apply to this
situation, noting that the inspector admitted that not every raise needs a
bulkhead and that he saw no loose material.  Id.  Accordingly, he
compromised with the inspector by installing the chain link fence, though that
too, in his view, was completely unnecessary.  Tr. 183. 

On cross-examination, Mr. Miller again took
issue with a question which included describing the cited area as part of a
mine.  The Court interjected that the inspector agreed that the cited location
was not an active mine, but that miners traveled along the area to get to the
mine.  Miller agreed with that description.  Tr. 184.  The problem with that
claim is that such locations are indisputably part of the mine and Respondent’s
contention is not worthy of additional comment.  Miller, agreeing that the
angle of the dip was 55 degrees and that the angle of repose was 35 to 37
degrees, still did not agree that anything that came loose from the rise would
fall down it.  However, his answer was not helpful to his position, as he
asserted that “[t]here’s a big 17 feet.  We don’t know what else is up [there]
. . . [but he then agreed that] if you throw a ball up, it’s going to come down.” 
Tr. 185.  Counsel for the Secretary then asked, “[I]f a rock would come loose
or piece of wood would come loose or anything else that happens to be up in
this old mined out section would come loose . . . there’s nothing to stop it
from coming out of the rise, correct?”  Tr. 186.  Critically, Miller
acknowledged that it was “absolutely true.  That is true.”  Id.

Upon consideration, the violation was clearly
established, but given the small size of the mine, that the condition had been
that way, and uncited, for a very long period of time, and in consideration of
the inspector’s evaluations of gravity and negligence, including that it was,
properly, deemed non-S&S, a penalty of $50.00 is imposed.

Citation No. 8793802

Proposed Penalty: $100.00.  Penalty Assessed: $50.00.

Citation No. 8793802, GX 37, was
issued on October 22, 2014, also at the Plumbago Mine.  Cited was standard 30
C.F.R. § 57.8527,[37] for a failure to conduct
oxygen testing.  Tr. 145.  Upon speaking with the miners, including Ms. Rae
Bell, Respondent’s office manager, the inspector determined none of them were
aware of any such testing being done.  Id.  The inspector stated that he
would not enter any mine without an oxygen detector.  Tr. 146.  This mine
utilizes “natural ventilation,” meaning that its ventilation is
non-mechanical.  Tr. 147.  Oxygen testing is done to make sure miners have a
minimum of 19.5% oxygen.  Using his oxygen detector, the inspector found the
oxygen level to be 20.6%.  While the frequency of testing depends upon the
particular metal/nonmetal mine, he believed that, at a minimum, such testing
should occur weekly.  Natural ventilation, he stated, only increases the
importance of such testing because old workings, such as in this instance, can
produce gasses.  Tr. 149.  Here, he found no evidence that any such
testing had been done.  This included, as noted, asking about the issue.  Id. 

Upon cross-exam, Respondent asked about the
types of devices that would satisfy the standard, and the inspector (Rogers)
gave some examples of such devices, some of which were multi-gas detectors.  A
flame safety lamp would also suffice.  Tr. 150.  The Court pointed out that the
standard commands that such devices shall be used.  The Inspector agreed
that the Plumbago Mine is a non-gassy mine.  Tr. 152. 

In his defense, Miller stated that the mine is
non-gassy, that no blasting takes place, that there was only a very small crew
(2 or 3 persons) working, and that the climate is “consistent and
predictable.”  There are only occasional changes in the barometric pressures. 
For short periods there can be stagnant air.  During winter, air is entering
the mine, while in the summer it is coming out.  Further, Miller stated that he
has a flame safety gas lamp, which he has used often enough to inform himself that
there is no oxygen problem at this site.  In addition, some of those working in
the mine, including Miller’s son, wear a device that is set to alarm at 19.6%
and that device has never been triggered.  Tr. 187-88.  Miller’s overarching
point was that, as there are millions of cubic feet of open space and the
oxygen levels are always at 20.6%, testing the air is pointless.  Tr. 188.  On
cross-examination by the Secretary, Miller affirmed that he has tested for
oxygen at the Plumbago Mine.  He stated that he usually tested once a week and
that he had an oxygen tester until he purchased the small detector device he
referred to during his direct testimony in defense.  In response to further
questions, Miller stated that he used a flame safety lamp to test for oxygen
around May 2014, but now he relies upon the other, new, device.[38] 
Tr. 192.  However, at the time of the citation’s issuance, he only had the
flame safety lamp to detect for oxygen.  Tr. 193. 

Asked about his practice of testing for oxygen
when opening up new areas of the tunnels, Miller stated that they did not test
for oxygen because there was no need to do such tests, as the mine has open
stopes throughout, with raises going up every hundred feet or so. Tr. 194.  In
what may fairly be described as an afterthought, Mr. Miller brought up that the
miners usually carry a BIC-type lighter, as may used by those who smoke
cigarettes, and his belief that such lighters are “suitable” as detectors for
bad air.  Tr. 196-97. 

Inspector Rogers was then recalled and asked
about the use of BIC-type cigarette lighters as a suitable oxygen testing
device.  While such lighters can be indicators of oxygen, he stated that
the flame on them will not illuminate when oxygen levels are around 16%, but
the MSHA standard requires oxygen to be at 19.5%.  Therefore, the device’s use
would not be sufficiently protective.  In candor, the inspector admitted that
back in the 1970s he used such cigarette lighters to check for oxygen.  Tr.
200-01.  The BIC lighter issue aside, the inspector stated that when he issued
his citation, the miners told him they were unaware of such testing for oxygen
being done, and neither the lead miner nor Mr. Miller later asserted to him
that they were using suitable devices to test for oxygen.  Tr. 201. 

The violation was established but given the
mine’s small size, that the gravity was marked as unlikely, that it was non-S&S,
and that the Court, based on Mr. Miller’s testimony, considered the negligence
to be low for this matter, a civil penalty of $50.00 is imposed.

Docket No. WEST
2015-251-M (Sixteen to One Mine)

Citation No. 8793805

Proposed Penalty: $243.00.  Penalty Assessed: $150.00.

MSHA Inspector Stephen P. Rogers also testified
for the Secretary.  Rodgers has 18 years of employment with MSHA and
significant mining experience apart from his years with MSHA.  Tr. 85-89.  Directed
to Citation No. 8793805, issued November 4, 2014, Rodgers, citing 30 C.F.R. § 57.6101(a),[39]
issued it upon finding combustible materials — grass, brush, wood, and rubbish
— within 25 feet of a powder magazine.  GX 13c; Tr. 89.  The concern is that a
fire could propagate to that area and create an explosive hazard to the
magazine, which was a blasting cap magazine.  The inspector took measurements
of the proximity of the combustible materials to the magazine, and Respondent
stipulated that the material was within 25 feet of the magazine.  Tr. 92. 
Still, the inspector found the gravity to be unlikely and also non-S&S. 
This was due to the lack of an ignition source for the cited material, such as
a forest fire or vehicles in the area.  Further, he noted that a lot of the
brush had been cut back, so he concluded that it was not reasonably likely. 
Tr. 93.  As the matter involved explosives, he did not feel that he could
legitimately rate it any lower, as the “no lost workdays” category is primarily
reserved for paperwork type violations.  If a fire were to occur around a
magazine, the practice is to simply get away from the area.  One does not try
to fight such a fire when explosives are involved.  Tr. 94.  The inspector did
mark the negligence as “high,” explaining that a powderman, that is, one who is
handling explosives, has great responsibility in such matters, which includes
making sure that the magazine area is clean and clear.  Id.  On
cross-examination, the inspector stated that the most likely source of a
problem developing would be in connection with a forest fire occurring.  While
the inspector acknowledged that some work at cleaning up the area had been done,
he did not view it as a “work in progress.”  Tr. 98.  The inspector’s notes
also reflect that the condition was visible from the main road and therefore
easily apparent to the mine operator.  Tr. 101.  The inspector did agree that
his notes reflect that the mine operator had been making some efforts to clean
up the area, but that the work had not been completed.  Tr. 103. 

Respondent, in its defense to this
citation, called Mr. Miller.  Miller testified that this was “a work in
progress.”  Tr. 154.  He stated that the mine was aware of the issue.  However,
he stated that something must have interrupted the effort, and that something
else took precedence.  Also, he stated that the wooden spool was not within 25
feet, that the 55 gallon drum had some trash in it and was to be removed later,
and that the 2x4’s, in his opinion, could not have presented a significant fuel
source.  Tr. 155.  He also stated that non-els (non-electric blasting caps) are
not self-detonating and that his recollection was that the inspector expressed
his main concern as a forest fire.  He believed that there was “no possibility”
that a fire could ignite this.  Id.  In fact, he added that a disposal
method for old explosives is to burn them.  Tr. 156.  However, he acknowledged
the importance of clearing brush from around a magazine.  Id.  He also
stated that there was very little fuel near the magazine and that the photo
exhibit, GX 13, does not accurately represent the conditions that were
present.  Tr. 157.  Thus, as the miners are there every day and are therefore
more familiar with the situation, he viewed the condition as very remote and
highly unlikely to occur.  In the Secretary’s cross-examination of Mr. Miller,
Miller acknowledged that the condition was visible every day from the road. 
Tr. 160.  He reaffirmed his view that there was not sufficient brush to justify
the citation’s issuance.  In his view, the only real trash was the 2x4’s he
mentioned earlier.  As to the Secretary’s claim of brush close to the magazine,
Miller described it as “green” and added that, if it’s green, it’s not brush,
and it need not be removed.  Tr. 161.  Thus, he believed that the issue was
minimal, stating that the grass didn’t appear as in the photo and that it was
clipped very low with a Weedeater.  Tr. 162.  However, he admitted that
CAL-OSHA had been out and told him that the area needed to be trimmed.  Tr.

163.  Again, he stated that the area had been considerably cleaned up since
then and that CAL-OSHA did not issue a citation.  He conceded that there had
been a drought in the area for a long time.  Id. 

Following that, the Secretary recalled Inspector
Rogers.  Tr. 164.  Redirected to GX 13c, he was asked about whether there was
vegetation that he considered to be brush and therefore needed to be cleaned. 
He referred to his notes, and they reflected that he tested some of the brush
to make sure that it was dry and crumply, not wet-type material.  Tr. 165. 
Speaking to the material in the photo, GX 13c, to the right of the magazine, he
concluded that none of that was acceptable.  It had to be removed as in his
view it could start a fire.  Tr. 166. 

Because this small mining operation was making
some efforts at cleaning up the brush, coupled with the inspector’s admission
that there were no immediate ignition sources observed, the Court views the
negligence to be moderate, not high.  Considering that view of the negligence
and the small size of the mine, the Court imposes a penalty of $150.00 for this
violation. 

Citation No. 8793806

Proposed Penalty: $100.00.  Penalty Assessed: $75.00.

Inspector Rogers testified regarding Citation
No. 8793806, issued November 4, 2014, and citing 30 C.F.R. § 57.6132(a)(3).[40] 
GX 14.  The particular cited subsection requires that magazines are to be
bullet resistant.  The cited magazine is the same one cited in Citation No.
8793805, which contained blasting caps.  Tr. 104-05.  The inspector stated that
the magazine was not bullet resistant as it had a steel exterior of about 1/8
of an inch with an interior lining of about 1/2 an inch of plywood.  Tr. 105. 
In contrast, the ATF standard requires magazines to have a 1/4 of an inch of
steel and 2 inches of hardwood.  Tr. 106.  Respondent stipulated that the cited
magazine’s exterior was 1/8 inch thick steel and it was lined with plywood. 
Tr. 121-22.  The hazard is that if one were to shoot at the magazine, a bullet
could penetrate it and detonate the explosives inside.  The inspector
acknowledged the scenario was unlikely as the mine’s gate is locked and no
hunting is permitted on the privately-owned land. Tr. 107.  Negligence was also
evaluated as low as the magazine had been there for years, yet was not cited in
previous inspections.

On cross-examination, the inspector stated that
the cited magazine was a Class 2, which refers to a surface portable.  Tr. 109,

111.  There was another Class 2 magazine on the property, but it met the ATF
standard.  Tr. 110.  The Respondent apparently filed paperwork with the fire
marshall which listed the magazine as a Class 3 or 4 magazine.  Tr. 112. 
Although the Respondent attempted to show that blasting agents need only be
stored in a Class 4 magazine, the MSHA standard requires that the magazine must
be bullet resistant.  Tr. 114.  MSHA accepts only Class 1 and 2 magazines.  The
inspector opined that, because the detonators were stored only in Ziploc bags,
they would mass detonate.  Tr. 117.  In determining that the cited magazine did
not meet the MSHA standard for bullet resistance, the Inspector relied upon the
ATF and IME (Institute of Makers of Explosives) standards.  Tr. 106, 121.  Asked
about the inspector’s view that the magazine provided less protection to mine
personnel than a bullet resistant one would, the inspector stated that the
bullet resistant magazine would reduce the likelihood of a projectile
penetrating the magazine.  Therefore, the inspector’s concern was focused on
the construction of the magazine, not its particular location.  Tr. 125. 

In his testimony related to this citation,
involving the thickness of the metal and the wood, and referring to Ex. 14, Mr.
Miller stated that these were non-el detonating caps, and it was his view that
they were “legal” as ATF inspected this, that is the thickness, the type of
lock, etc.  Tr.168.  Miller’s perspective was that ATF’s view overrides MSHA’s
requirements.  Id.  Miller then proposed to enter as an exhibit a three
page email between Respondent’s employee, Rae Bell Abrogast, and Inspector
Rogers.  This was admitted as RX 1.  Tr. 173.[41]  This was offered as
mitigating evidence, with the purpose of showing that detonators that will not
mass detonate may be stored in a Class 4 magazine.  Miller maintained that this
magazine had passed inspection for “years and years and years.” Tr. 171-72.  To
abate the citation, Respondent had all of the explosives removed from it.  Tr.
172. 

This citation was assessed at
$100.00.  Upon consideration of the statutory criteria, the mine’s small size,
and Mr. Miller’s testimony on this matter, including that the magazine had not been
cited in previous inspections, the Court imposes a civil penalty in the amount
of $75.00.

Docket No. WEST
2015-381-M (Plumbago Mine)

Citation No. 8698267

Proposed Penalty: $2,000.00.  Penalty Assessed:
$2,000.00.

Inspector Daniel Boylan spoke to Citation No.
8698267, GX 38a, issued June 25, 2014, citing section 103(a) of the Mine Act.[42] 
This was issued because of the alleged denial of entry to conduct an
inspection.  The inspector was at the Plumbago Mine with Inspector Jason Jeno
for a compliance follow-up visit.  That related to miner training and the
training plan and to make sure that the miners had been withdrawn per the
previous order.  Tr. 600.  When they arrived, they found that miners were
working at the mine.  Tr. 601.  Mr. Miller then arrived at the site.  The
inspectors talked with the miners to determine why they were present, and they
also examined some documents to determine if there were records of training. 
Mr. Miller asked to speak with the inspectors.

According to Inspector Boylan’s
testimony, while Miller was initially cordial, the inspector stated that
Miller’s attitude changed after the inspectors asked if a miners’ rep was
available to be present for such conversation.  Miller, the inspector stated,
informed that he would do the talking, not the inspectors.  Tr. 603.  The
ensuing conversation became heated and Mr. Miller was angry, again, according
to the inspector.  The inspector stated that Miller asserted that there was no
jurisdiction for their presence, Tr. 604, a perpetual assertion of Miller,
which, as noted, was reasserted in Respondent’s post-hearing briefs. 

The inspectors informed Miller that
he should direct his jurisdiction contentions to the MSHA District Office, not
to them.  Id.  Miller then walked away and told his employees not to
talk with the inspectors and for them to go home.  Miller told the inspectors
he was not talking with them anymore.  With everyone leaving the mine site, the
inspectors then left, too.  Tr. 606.  As all the employees had departed, the
inspectors could not continue the inspection. The citation, reflected in GX 38,
was issued as a violation of the Mine Act, and as such no safety standard was
invoked.  It was marked as non-S&S, no likelihood, and no lost workdays. 
However, it was also marked as high negligence, because Miller was well aware
of MSHA’s right to inspect.  Tr. 607.

Citation Nos. 8698267 and 8698268 were each
issued on June 25th, and for both, the inspector recommended a special
assessment.  This was because the inspector viewed the negligence involved for
these two as “elevated.”  Elaborating, the inspector stated that Citation No.
8698268, involving the second instance of miners working in the face of
an order, was associated with the need for withdrawal for the training to be
conducted.  The negligence for Citation No. 8698267 was elevated, the inspector
maintained, because it is common knowledge that one may not impede MSHA
inspections.  Tr. 609. 

The Court noted that, in making
penalty determinations, it does not make “special assessments,” but instead
looks to the statutory penalty criteria only.  In that regard it asked the
inspector to further explain the basis of his “high negligence” designation. 
The inspector stated that he found no mitigating factors and that Miller knew
of MSHA’s right to inspect.  Tr. 610-11.  On further cross-examination, the
inspector stated that he had to leave the mine site to get the approval for the
“impeding” citation.  This required traveling some distance away from the mine,
as the cell phone coverage was poor at the mine site.[43] 
Tr. 613. 

Denial of entry to conduct an
inspection, as occurred here, is a very serious violation.  Upon consideration
of the record evidence for this matter, the Court finds that the proposed penalty
of $2,000.00 remains appropriate and is so imposed.

Citation No. 8698268

Proposed Penalty: $2,000.00.  Penalty Assessed:
$2,000.00.

Citation No. 8698268, GX 39, was issued June 25,
2014, at the Plumbago Mine.  Tr. 526-27.  Four miners were at the mine at that
time, moving a locomotive and working in the shop.  For this matter, too, the
earlier mentioned 104(g)(1) order, see discussion supra pp. 16-17,
was still in effect, and because of that no miners should have been working. 
The citation, issued as a violation of the Mine Act itself, as opposed to a
specific safety standard, was marked as no lost workdays, no likelihood, and non-S&S. 
However it was also marked as “reckless disregard.”  That last designation was
used because it was the second instance of the mine working in the face of an
order.  Tr. 528.  The inspector viewed it as demonstrating no apparent care in
terms of abating the original order.  Id.  Again, the Plumbago Mine had
not submitted a training plan to MSHA.  Upon inquiring about any training they
may have received, the inspector found some documents, but no “5000” training
forms.  Instead there was only something “scribbled off” with “Plumbago”
written on the top of the form.  Tr. 529.  The form that was presented to him
did not indicate that the required training had been completed, nor did it
demonstrate that newly hired experienced miner training had been done.  A
proper form needs to show various numbers of training categories and
certification that they had been done.  The form that was presented to him had
none of those items.  Tr. 530. 

Mr. Miller did not ask any
questions of the inspector about Citation No. 8698268.  As noted, this citation
involved the assertion of working in the face of an order.  Tr. 546.  Mr.
Miller again asserted that the required training was in fact given. 

In cross-examination about Citation No. 8698268,
again, the second citation involving working in the face of a withdrawal order,
Miller acknowledged that he had knowledge that his men were told to leave the
mine and that they needed to be trained, but he added that they had been
working for him for years.  When pressed about whether at that time he knew of
the withdrawal order, Miller stated he did not know, and that he did not know
“when [he] was delivered these final orders.”  Tr. 563.  The Court did not find
this claim to be credible. When asked to acknowledge the state of his awareness
about the order’s issuance versus receipt of the order itself, he stated there
was a “huge difference” between “having something written and something orally
given.”  Tr. 564.  He did admit that he knew MSHA had issues with the training
of miners at the Plumbago Mine.  Id.  However, he stated that he did not
know that he had received the first citation for working in the face of a
withdrawal order.  Id. 

Mr. Miller then testified again about these
matters.  Tr. 620.  He stated that he is well aware of MSHA’s right to inspect
but contended that he did not impede or deny their inspection.  Tr. 624.  He
also stated that he is the president and director of the Sixteen to One Mine,
and a shareholder, but not the owner.  Tr. 621.  When asked about his role at
the Plumbago Mine, he stated that he is responsible for all operations, and the
one who oversees, but that he is not the “day-to-day person” at the mine.  Tr.

622.  The latter tasks are done by competent, qualified, and lead miners under
him.  Id.  He reiterated that he did not and has not ever told employees
to leave mine property due to the presence of a mine inspector.  Tr. 624.  He
also denied that he told the miners to leave and lock the mine entrance gate. 
Tr. 624-25.  Instead, Miller stated that his miners told him that they did not
want to stay at the mine with the inspectors present.  Tr. 626.  He told them
they could stay or leave, as they preferred, because that is the mine’s policy
on such matters.  Tr. 627.  Elaborating, Miller stated that the mine’s policy
is that miners can leave “[f]or any reason that personally upsets them.”  Tr.
627.  Yet, the miners were still paid for the day, even though they left the
mine.  Tr. 631.  The policy, Miller contended, applies for any reason and is
not just about mine inspectors.  Tr. 627.  Miller did not deny that he told the
inspector that he was not going to talk about the issue any longer and that he
then left in his truck. Tr. 628-29.

As noted, these events occurred at the Plumbago
Mine. Tr. 631.  Miller stated that he then drove back to the Sixteen to One
mine office.  Miller maintained that he could not recall if he was given the
citation on June 25th.  Tr. 632.  Miller stated that, when he concluded that
the conversation with the inspector would not “go anywhere,” he decided that he
would leave the mine, and left it to the miners as to whether they wished to
remain or leave.  Tr. 633.  Miller admitted that he may have acted “a little
bit excited,” but he was not confrontational or threatening to the inspector. 
Tr. 635.  Miller denied that he arrived at the mine on that day in order to
challenge the jurisdiction of the inspectors.  Tr. 638.  However, once there,
he admitted that he told the inspectors, politely, that they had no
jurisdiction over the property.  Tr. 638-39.  He also admitted that, once they
started talking, he knew the inspectors were there for the purpose of
conducting an inspection.  Tr. 639-40.  It was Miller’s statement that he chose
to leave the mine property, but he agreed that he could have stayed and allowed
the MSHA inspectors to finish their inspection.  Tr. 643. 

In light of Mr. Miller’s testimony, Inspector
Boylan was then recalled.  He contradicted Miller’s testimony, stating that the
miners were instructed to leave the mine by Mr. Miller.  Tr. 645.  Further, he
never heard Miller tell the miners they could stay or leave as they wished, nor
did he hear any miners state that they didn’t want to remain at the site.  The
inspector also took note that the Mine Act provides for miners to still receive
their pay when a withdrawal order is issued and he so advised the miners of
that.  Thus, the inspector was firm that Miller told the miners to leave the
site and to lock the gate behind them.  Tr. 646. 

The impeding order was subsequently lifted, upon
the mine operator allowing the inspection to proceed.  Tr. 647.  Upon handing
the citation for impeding to Miller, he relented, the inspection began, and the
order was lifted.  Tr. 648.  On subsequent re-cross-examination, the inspector
agreed that he knew that all the paperwork for Plumbago was at the Sixteen to
One office, so there was no need to return to the Plumbago Mine for that
issue.  Thus, the inspector admitted that the Plumbago Mine records were kept
at the Sixteen to One Mine and that, as it was a matter of paperwork, he could
obtain the records for the Plumbago there. 

However, the inspector stated that
he still elected to go to the Plumbago mine site first. Tr. 651.  When asked
why he chose to go to the Plumbago, the inspector stated that, while that mine
tends to keep its records at the Sixteen to One mine office, he had a second
reason for going to the Plumbago site, namely to determine if miners were
working in defiance of the order issued at the Plumbago.  Tr. 653.  Thus, he
had a valid, independent, reason to return to the site.  The Court notes that
this was certainly his legitimate prerogative.  The inspector added that when
they went to the Plumbago, he and the other inspector were presented with some
documents but, as noted earlier, that those documents were “nowhere near [the]
training documents required.”  Tr. 654. 

After considering the credibility
of the inspector and that of Mr. Miller, at least as to these two matters, Citation
Nos. 8698267 and 8698268, the Court finds that the Inspector’s version of the
events is more credible.  As noted in the discussion for Citation No. 8698267,
denial of entry to conduct an inspection, as occurred here, is a very serious
violation.  Upon consideration of the record evidence for this matter and the
statutory criteria, the Court finds that a civil penalty of $2,000.00 remains
fully appropriate for Citation No. 8698268.

Settled and
Vacated Citations

At the hearing, seven citations were
settled or vacated.  Respondent withdrew its contest of the following citations
and agreed to pay the originally proposed penalty: Citation Nos. 8698193 (WEST
2014-527-M), 8783100 (WEST 2014-527-M), and 8793807 (WEST 2015-251-M).

For Citation No. 8793616
(WEST 2015-78-M), the Secretary agreed to modify the citation to reflect lost
workdays or restricted duty from the original designation as fatal, with the
penalty remaining as proposed.  The Secretary also agreed to modify Citation
No. 8698194 (WEST 2014-527-M) to no likelihood, no lost workdays, and low negligence
and to reduce the penalty to $50.00.[44]

Citation  No. 8698227 (WEST
2015-78-M) was accepted by Respondent, and the Secretary agreed to remove the
following sentence from Section 8 of the citation: “This mine has been in
operation in the past during times of favorable commodities prices, and the
mine is having rehabilitation activity been [sic] performed.”

Finally, in an exercise of
his prosecutorial discretion as recognized in RBK Construction, Inc., 15
FMSHRC 2099 (Oct. 1993), the Secretary vacated Citation No. 8793619 (WEST
2015-158-M) at hearing.  Having been vacated by the Secretary, Citation No.
8793619 is hereby DISMISSED WITH PREJUDICE.

The Court has consid­ered the
repre­sen­ta­tions submit­ted in these cases and concludes that the prof­fered
settle­d citations are appropriate under the criteria set forth in section
110(i) of the Act. 

Summary of
Violations and Penalties Imposed by the Court

Docket No. WEST 2014-527-M

Citation/Order No.         Assessment               Settlement
Amount

8698193                                 $100.00                                   $100.00

8783098                                 $100.00                                     $50.00

8783099                                 $100.00                          DISMISSED

8783100                                 $100.00                                   $100.00

8698194                                 $100.00                                     $50.00

TOTAL:                                $500.00                                   $300.00

Docket No. WEST 2015-77-M

Citation/Order No.         Assessment               Settlement
Amount

8698235                              $5,000.00                                   $500.00

8698236                                 $112.00                                     $75.00

TOTAL:                             $5,112.00                                   $575.00

Docket No. WEST 2015-78-M

Citation/Order No.         Assessment               Settlement
Amount

8698224                                 $112.00                                   $112.00

8698225                                 $100.00                                   $100.00

8698226                                 $100.00                                   $100.00

8698227                                 $100.00                                   $100.00

8698228                                 $243.00                                   $243.00

8698229                                 $308.00                                   $154.00

8698230                                 $308.00                                   $154.00

8698231                                 $100.00                                   $100.00

8698232                                 $112.00                                   $112.00

8698233                                 $100.00                                     $75.00

8698234                                 $100.00                                   $100.00

8785247                                 $100.00                                     $75.00

8793615                                 $100.00                                   $100.00

8793616                                 $100.00                                   $100.00

8793617                                 $100.00                                     $50.00

TOTAL:                             $2,083.00                                $1,675.00

Docket No. WEST 2015-158-M

Citation/Order No.         Assessment               Settlement
Amount

8785248                                 $100.00                                     $25.00           

8793618                                 $100.00                                     $50.00

8793619                                 $100.00                             VACATED

8785249                                 $100.00                                     $50.00

8793620                                 $100.00                                     $75.00

8785250                                 $100.00                                     $75.00

8793621                                 $100.00                                   $100.00

TOTAL:                                $700.00                                   $375.00

Docket No. WEST 2015-240-M

Citation/Order No.         Assessment               Settlement
Amount

8793801                                 $100.00                                     $50.00

8793802                                 $100.00                                     $50.00

TOTAL:                                $200.00                                   $100.00

Docket No. WEST 2015-251-M

Citation/Order No.         Assessment               Settlement
Amount

8793805                                 $243.00                                   $150.00

8793806                                 $100.00                                     $75.00

8793807                                 $100.00                                   $100.00

TOTAL:                                $443.00                                   $325.00

Docket No. WEST 2015-381-M

Citation/Order No.         Assessment               Settlement
Amount

8698267                              $2,000.00                                $2,000.00

8698268                              $2,000.00                                $2,000.00

TOTAL:                             $4,000.00                                $4,000.00

TOTAL PENALTY ASSESSED BY THE
COURT:  $7,350.00

ORDER

It is ORDERED that Citation No. 8793616
be MODIFIED to reduce the reasonably expected injury from fatal to lost
workdays or restricted duty.

It is ORDERED that Citation No. 8698194
be MODIFIED to reduce the likelihood of injury or illness to no
likelihood, to reduce the reasonably expected injury to no lost workdays, and
to reduce the level of negligence to low negligence.

It is ORDERED that Citation No. 8698227
be MODIFIED to remove the following sentence from Section 8 of the
citation: “This mine has been in operation in the past during times of
favorable commodities prices, and the mine is having rehabilitation activity
been [sic] performed.”

Respondent Original Sixteen to One Mine, Inc.,
is ORDERED to pay a total civil penalty of $7,350.00 within 30 days of
the date of this decision.[45]  Upon receipt of
payment, this case is DISMISSED.

/s/ William B.
Moran

William
B. Moran

Administrative
Law Judge

Distribution:

Michele A. Horn, Esq., U.S. Department of Labor, Office of
the Solicitor, 1224 Speer Boulevard, Suite 216, Denver, CO  80204-3518

Michael M. Miller, Original Sixteen to One Mine, Inc., 527
Miners Street, P.O. Box 909, Alleghany, CA  95910

[1] The Court will use the
designations “Tr.” to refer to the hearing transcript, “GX” to refer to the
Secretary’s exhibits, and “RX” to refer to Respondent’s exhibits.

[2] At the outset of the
hearing Respondent withdrew its contests related to Citation Nos. 8698193 (WEST
2014-527-M), 8783100 (WEST 2014-527-M), and 8793807 (WEST 2015-251-M), agreeing
to pay the associated penalties as proposed. Tr. 10-11. The Secretary’s
post-hearing brief includes Citation No. 8793615 as among those in which
Respondent withdrew its contest, but that Citation was among the contested
matters during the hearing.  See discussion infra for GX 33, which is
the exhibit associated with Citation No. 8793615.  For Citation No. 8793616
(WEST 2015-78-M), the Secretary agreed to modify the citation to reflect lost
workdays or restricted duty from the original designation as fatal, with the
penalty remaining as proposed.  Tr. 11.  During the hearing, the Secretary
agreed to modify Citation No. 8698194 (WEST 2014-527-M) to No Likelihood, No
Lost Workdays and Low Negligence and to reduce the penalty to $50.00.  The
Secretary vacated Citation No. 8793619 (WEST 2015-158-M) at hearing.  Citation 
No. 8698227 (WEST 2015-78-M) was accepted by the operator with the Secretary
agreeing to remove from Section 8 of the citation the sentence, which reads,
“This mine has been in operation in the past during times of favorable
commodities prices, and the mine is having rehabilitation activity been [sic]
performed.”  Sec’y’s Post-hearing Br. 4, 35 (quoting the citation) (“Sec’y
Br.”).

[3] As the D.C. Circuit noted
its Carolina Stalite decision, “Cases decided by the Third, Ninth, and
Fourth Circuits accord with [its] interpretation of the Act, and uniformly
recognize section 3(h)’s ‘sweeping definition’ of a mine.”  734 F.2d at
1554 (emphasis added).

[4] The R-17 reports are GX
17 for the Sixteen to One Mine and GX 40 for the Plumbago Mine. Tr. 660.  The
reports detail the mines’ respective histories of violations.

[5] By stipulation,
Respondent agreed to the admission of the government’s exhibits, designated GX
1 through GX 40.  Tr. 26. 

[6] Standard 30 C.F.R. § 57.15031,
titled  “Location of self-rescue devices,” provides:

(a) Except as
provided in paragraph (b) and (c) of this section, self-rescue devices meeting
the requirements of standard 57.15030 shall be worn or carried by all persons underground.

(b) Where the
wearing or carrying of self-rescue devices meeting the requirements of standard
57.15030 is hazardous to a person, such self-rescue devices shall be located at
a distance no greater than 25 feet from such person.

(c) Where a
person works on or around mobile equipment, self-rescue devices may be placed
in a readily accessible location on such equipment.

[7] Respondent stated that
the cited area was a main adit and that there was no hazard present, as the
rock there is very competent.  Tr. 50.  Respondent also expressed that there
was no risk of a fatality because a person would only need to walk a short
distance to safety, the mine is naturally ventilated, and the distance to the
portal was less than 2,500 feet.  Regarding the mine’s natural ventilation, the
ventilation direction is determined by factors such as the barometric pressure
and temperature.  Tr. 52-53.  Respondent’s argument in this regard, beyond air
movement, is the amount of air in the mine.  Respondent asserted that with “35
miles of tunnels” in the mine, there are millions of cubic feet of open space
and many ways to exit the mine.  In Respondent’s view, that makes the notion
that one might not have sufficient air to breath farfetched.  Tr. 53-54. 
Respondent also opined that there was not sufficient fuel to create a fire.  Tr.

50.  For those reasons, Respondent believed that the citation should have been
marked as “no likelihood” and the mine’s negligence was none.  Tr. 51.  Under
those conditions, Respondent urges, with the device not more than 50 feet away,
the citation should not have been issued.  Tr. 51.  Respondent admitted that
the cited worker was there at the invitation of Respondent and had been given
the 40-hour site-specific mine training.  Tr. 55.  Respondent could not recall
whether he informed the workers that the self-rescue device had to be within 25
of where they were working.  Tr. 56.  Respondent continued to assert that the
worker was not a contractor, but did not commit as to whether he contended that
the worker was not covered under the Mine Act.  Id. 

[8] Part 100 actually
provides for a minimum penalty of $112.00, but a 10% “good faith” allowance may
be factored in “where the operator abates the violation within the time frame
set by the inspector.”  30 C.F.R. § 100.3(f). 

[9] The cited standard, §
57.12010, “Isolation or insulation of communication conductors,” provides: “Telephone
and low-potential signal wire shall be protected, by isolation or suitable
insulation, or both, from contacting energized power conductors or any other
power source.”

[10] SO refers to cable that
is suitable for severe duty.  Tr. 78. 

[11] 30 C.F.R. § 50.10,
titled, “Immediate notification,” provides: “The operator shall immediately
contact MSHA at once without delay and within 15 minutes at the toll-free
number, 1-800-746-1553, once the operator knows or should know that an accident
has occurred involving: (a) A death of an individual at the mine.”

[12] As they are related,
Order No. 8698224, Citation No. 8698225, and Citation No. 8698226 are discussed
together. 

[13] 30 C.F.R. § 48.6, titled
“Experienced miner training,” provides:

(a) Except as
provided in paragraph (e), this section applies to experienced miners who are —

(1) Newly employed
by the operator;

(2) Transferred to
the mine;

(3) Experienced underground miners
transferred from surface to underground; or

(4) Returning to
the mine after an absence of more than 12 months.

(b) Experienced
miners must complete the training prescribed in this section before beginning
work duties. Each experienced miner returning to mining following an absence of
5 years or more, must receive at least 8 hours of training. The training must
include the following instruction . . . [the standard then details the course
of instruction in subsections (b)(1) through (b)(12) and (c) through (e)]. 

[14] Although Mr. Miller was
then challenging the inspector’s experience, the citations in issue at this
point in the proceeding were Order No. 8698224 (GX 21), Citation No. 8698225
(GX 22), and Citation No. 8698226 (GX 23), involving, respectively, newly hired
experienced miner training, no training plan, and no notification before
starting operations.  Tr. 429.  The inspector stated that he has never worked
in an underground mine.  Id.  The Court finds that Inspector Boylan was
a well-qualified and knowledgeable inspector, who spoke with detail, both
credibly and convincingly, regarding each of the citations/orders about which
he testified.

[15] Section 49.2, titled “Availability
of mine rescue teams,” provides:

(a) Except where
alternative compliance is permitted for small and remote mines (§ 49.3) or
those mines operating under special mining conditions (§ 49.4), every operator
of an underground mine shall:

(1) Establish
at least two mine rescue teams which are available at all times when miners are
underground; or

(2) Enter into
an arrangement for mine rescue services which assures that at least two mine
rescue teams are available at all times when miners are underground.

(b) Each mine
rescue team shall consist of five members and one alternate, who are fully
qualified, trained, and equipped for providing emergency mine rescue service.

(c) To be
considered for membership on a mine rescue team, each person must have been
employed in an underground mine for a minimum of one year within the past five
years. For the purpose of mine rescue work only, miners who are employed on the
surface but work regularly underground shall meet the experience requirement.
The underground experience requirement is waived for those miners on a mine
rescue team on the effective date of this rule.

(d) Each
operator shall arrange, in advance, ground transportation for rescue teams and
equipment to the mine or mines served.

[16] Section 57.8520, titled “Ventilation
plan,” provides:

A plan of the
mine ventilation system shall be set out by the operator in written form.
Revisions of the system shall be noted and updated at least annually. The
ventilation plan or revisions thereto shall be submitted to the District
Manager for review and comments upon his written request.

The standard goes on to provide a detailed list of
such plan’s requirements, “where applicable.”  See § 57.8520(a)-(e). 

[17] Section 57.18009, titled
“Designation of person in charge,” provides: “When persons are working at the
mine, a competent person designated by the mine operator shall be in attendance
to take charge in case of an emergency.”

[18] Section 57.4533, titled
“Mine opening vicinity,” provides: “Surface buildings or other similar
structures within 100 feet of mine openings used for intake air or within 100
feet of mine openings that are designated escapeways in exhaust air shall be — (a)
Constructed of noncombustible materials.”

[19] Section 57.9300, titled “Berms
or guardrails,” provides at subsection (a): “Berms or guardrails shall be
provided and maintained on the banks of roadways where a drop-off exists of
sufficient grade or depth to cause a vehicle to overturn or endanger persons in
equipment.”  As mid-axle height was mentioned in the testimony, subsection (b)
of the standard is here noted.  It states that such “[b]erms or guardrails
shall be at least mid-axle height of the largest self-propelled mobile
equipment which usually travels the roadway.” 

[20] The cited standard, §
57.4131, titled, “Surface fan installations and mine openings,” provides:

(a) On the
surface, no more than one day's supply of combustible materials shall be stored
within 100 feet of mine openings or within 100 feet of fan installations used
for underground ventilation.

(b) the one-day
supply shall be kept at least 25 feet away from any mine opening except during
transit into the mine.

(c) Dry
vegetation shall not be permitted within 25 feet of mine openings.

[21] 30 C.F.R. § 57.14100(b)
requires that “[d]efects 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.”

[22] 30 C.F.R. § 57.12028, titled “Testing grounding systems,”
provides: “Continuity and resistance of grounding systems shall be
tested immediately after installation, repair, and modification; and annually
thereafter. A record of the resistance measured during the most recent test
shall be made available on a request by the Secretary or his duly authorized
representative.”

[23] 30 C.F.R. § 57.15030,
titled, “Provision and maintenance of self-rescue devices,” provides:

“A 1-hour self-rescue device approved by MSHA and
NIOSH under 42 CFR part 84 shall be made available by the operator to all
personnel underground. Each operator shall maintain self-rescue devices in good
condition.”

[24] Section 57.14207
requires that “[m]obile equipment shall not be left unattended unless the
controls are placed in the park position and the parking brake, if provided, is
set. When parked on a grade, the wheels or tracks of mobile equipment shall be
either chocked or turned into a bank or rib.”

[25] 30 C.F.R. §
57.6132(a)(6), titled “Magazine requirements,” provides, in relevant part,

“Magazines shall be . . . [p]osted with the
appropriate United States Department of Transportation placards or other
appropriate warning signs that indicate the contents and are visible from each
approach, so located that a bullet passing through any of the signs will not
strike the magazine.”

[26] As a side note, relating
to an earlier citation, and referring to GX 11c, photo 1, the inspector agreed
green vegetation is depicted in that photo and that he did not write a citation
regarding that, because the vegetation was green.  Tr. 250. 

[27]  A detailed standard, §
57.8520, titled “Ventilation plan,” provides:

A plan of the
mine ventilation system shall be set out by the operator in written form.
Revisions of the system shall be noted and updated at least annually. The
ventilation plan or revisions thereto shall be submitted to the District
Manager for review and comments upon his written request. The plan shall, where
applicable, contain the following:

(a) The mine
name.

(b) The current
mine map or schematic or series of mine maps or schematics of an appropriate
scale, not greater than five hundred feet to the inch, showing:

(1) Direction
and quantity of principal air flows;

(2) Locations
of seals used to isolate abandoned workings;

(3) Locations
of areas withdrawn from the ventilation system;

(4) Locations
of all main, booster and auxiliary fans not shown in paragraph (d) of this
standard.

(5) Locations
of air regulators and stoppings and ventilation doors not shown in paragraph
(d) of this standard;

(6) Locations
of overcasts, undercasts and other airway crossover devices not shown in paragraph
(d) of this standard;

(7) Locations
of known oil or gas wells;

(8) Locations
of known underground mine openings adjacent to the mine;

(9) Locations
of permanent underground shops, diesel fuel storage depots, oil fuel storage
depots, hoist rooms, compressors, battery charging stations and explosive
storage facilities. Permanent facilities are those intended to exist for one
year or more; and

(10)
Significant changes in the ventilation system projected for one year.

(c) Mine fan
data for all active main and booster fans including manufacturer's name, type,
size, fan speed, blade setting, approximate pressure at present operating
point, and motor brake horsepower rating.

(d) Diagrams,
descriptions or sketches showing how ventilation is accomplished in each
typical type of working place including the approximate quantity of air
provided, and typical size and type of auxiliary fans used.

(e) The number
and type of internal combustion engine units used underground, including make
and model of unit, type of engine, make and model of engine, brake horsepower
rating of engine, and approval number.

30 C.F.R.
§ 57.8520.

[28] Section 57.14100, titled
“Safety defects; examination, correction and records,” provides, for the cited
subsection: “(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.”

[29] This text of this
standard, § 57.4131, appears above.  See supra note 20.

[30] In determining the civil
penalty the Court also took into account the points and contentions referenced
in the Secretary’s post-hearing brief where it was noted:

The operator claims
that the amount of wood the inspector found was minimal and far less than a
days’ supply of wood [and that] [t]he operator also claims that air was exiting
the 800 portal on the day of the citation and, accordingly, there was no danger
to miners from the accumulated combustible material.  (Tr. 370).  However, even
if, on that date of the citation, air was exiting the 800 portal, the mine
utilizes natural ventilation, and the direction of mine air changes with
temperature and barometric pressure would likely expose miners on a later
date.  (Tr. 187).  See, U.S. Steel Mining, 7 FMSHRC 1125, 1130 (1985).
(Courts should consider alleged violations in terms of continued mining
operations.).

Sec’y Br. 18.  Having considered those points and
contentions, along with the factors noted above, the Court determines that
$75.00 is the appropriate civil penalty. 

[31] The cited standard, §
57.11053, titled “Escape and evacuation plans,” provides:

A specific
escape and evacuation plan and revisions thereof suitable to the conditions and
mining system of the mine and showing assigned responsibilities of all key
personnel in the event of an emergency shall be developed by the operator and
set out in written form. Within 45 calendar days after promulgation of this
standard a copy of the plan and revisions thereof shall be available to the
Secretary or his authorized representative. Also, copies of the plan and
revisions thereof shall be posted at locations convenient to all persons on the
surface and underground. Such a plan shall be updated as necessary and shall be
reviewed jointly by the operator and the Secretary or his authorized
representative at least once every six months from the date of the last review.
The plan shall include:

(a) Mine maps
or diagrams showing directions of principal air flow, location of escape routes
and locations of existing telephones, primary fans, primary fan controls, fire
doors, ventilation doors, and refuge chambers. Appropriate portions of such
maps or diagrams shall be posted at all shaft stations and in underground
shops, lunchrooms, and elsewhere in working areas where persons congregate;

(b) Procedures
to show how the miners will be notified of emergency;

(c) An escape
plan for each working area in the mine to include instructions showing how each
working area should be evacuated. Each such plan shall be posted at appropriate
shaft stations and elsewhere in working areas where persons congregate;

(d) A fire
fighting plan;

(e) Surface
procedure to follow in an emergency, including the notification of proper
authorities, preparing rescue equipment, and other equipment which may be used
in rescue and recovery operations; and

(f) A statement
of the availability of emergency communication and transportation facilities,
emergency power and ventilation and location of rescue personnel and equipment.

[32] Though the Secretary of
necessity addressed Respondent’s contention that the mine was in exploration
mode and therefore only one escapeway was necessary, it challenged that
assertion, noting:

The Metal/Non-Metal
Program Policy Manual, §57.11050, states that the phrase “’exploration or
development’ should be used in its narrowest sense, i.e., while an ore body is
being initially developed, or development or exploration work is being
conducted as an extension of a currently producing mine.” (emphasis added).  In
addition, §57.11050(b) requires that a mine without two escapeways have,
instead, a refuge chamber; the operator admits that it does not have a refuge
chamber.  (Tr. 380).  See also, Small Mine Development, 37 FMSHRC 1892,
1898 (2015) (“Given the importance the standard places upon providing
duplicative means of survival in an emergency, it makes sense that the same
protections be extended to miners who are engaged in exploration or development
work, which carries with it many of the same dangers as production mining.”). 
[The] Original Sixteen to One Mine does not satisfy the definition of
“exploration or development” as defined in the Program Policy Manual.  This is
an old mine with over 35 miles of tunnels.  (Tr. 53).  The individuals
underground . . . were not in a newly developed portion of the mine or in an
area of the mine that was being extended.  (Tr. 375-376).  They were working in
worked-out area of the mine within 2500 feet of the portal (Tr. 374).  The mine
operator cannot, by improperly claiming exploration, deny these workers, and
other miners entering the mine, two safe means of escape.

Sec’y Br. 20-21.  The Court agrees with the
Secretary’s observations about the standard’s requirements.

[33] 30 C.F.R. § 57.11012,
titled “Protection for openings around travelways” provides: “Openings above,
below, or near travelways through which persons or materials may fall shall be
protected by railings, barriers, or covers. Where it is impractical to install
such protective devices, adequate warning signals shall be installed.”

[34] A bulkhead, typically,
is used to barricade and block an area off for ventilation or to address some
other potential hazard.  Tr. 130.  In this instance, its function would be to
stop materials from going into the drift.  Tr. 131.

[35] Respondent employed the
word “troubling” in his question to the inspector.  Tr. 136.

[36] All claims made by the
Respondent that the Plumbago or the Original Sixteen to One Mine are not mines
are without any merit.  The acknowledged use and purpose of these is to mine
gold ore.

[37] Section 57.8527, “Oxygen-deficiency
testing,” provides: “Flame safety lamps or other suitable devices shall be used
to test for acute oxygen deficiency.”

[38] Miller did not precisely
identify the detection device, being uncertain about its name.  Instead, he
described it as a “little yellow device” that he bought in 2015 that tests for
oxygen and cost about $200.00.  Tr. 192-93.

[39] Section 57.6101, titled “Areas
around explosive material storage facilities,” provides:

(a) Areas
surrounding storage facilities for explosive material shall be clear of
rubbish, brush, dry grass, and trees for 25 feet in all directions, except that
live trees 10 feet or taller need not be removed.

(b) Other
combustibles shall not be stored or allowed to accumulate within 50 feet of
explosive material. Combustible liquids shall be stored in a manner that
ensures drainage will occur away from the explosive material storage facility
in case of tank rupture.

[40] 30 C.F.R. § 57.6132, titled “Magazine
requirements,” provides:

(a) Magazines
shall be—

(1) Structurally
sound;

(2) Noncombustible
or the exterior covered with fire-resistant material;

(3) Bullet
resistant;

(4) Made of
nonsparking material on the inside;

(5) Ventilated to
control dampness and excessive heating within the magazine;

(6) Posted with
the appropriate United States Department of Transportation placards or other
appropriate warning signs that indicate the contents and are visible from each
approach, so located that a bullet passing through any of the signs will not
strike the magazine;

(7) Kept clean
and dry inside;

(8) Unlighted or
lighted by devices that are specifically designed for use in magazines and
which do not create a fire or explosion hazard;

(9) Unheated or
heated only with devices that do not create a fire or explosion hazard;

(10) Locked when
unattended; and

(11) Used
exclusively for the storage of explosive material except for essential
nonsparking equipment used for the operation of the magazine.

(b) Metal
magazines shall be equipped with electrical bonding connections between all
conductive portions so the entire structure is at the same electrical
potential. Suitable electrical bonding methods include welding, riveting, or
the use of securely tightened bolts where individual metal portions are joined.
Conductive portions of nonmetal magazines shall be grounded.

(c) Electrical
switches and outlets shall be located on the outside of the magazine. 

30 C.F.R. § 57.6132 (emphasis
added).

[41] The Court raised an
issue about the proposed exhibit, because the email is dated June 15, 2015, but
the citation was issued November 14, 2014.  Therefore it was unclear if the
email related to Citation No. 8793806.  Tr. 174.  However, ultimately, the
Court decided to admit the exhibit.  That said, the Court expressed that it
could be given little weight because OSHA’s and ATF’s views do not control. 
The Court did not decide then the impact of such information in evaluating
gravity or negligence.  Tr. 176. 

[42] Citation Nos. 8698267
and 8698268 were discussed together at the hearing and are so presented here.

[43] Initially, Mr. Miller
expressed concern about the time when the citation was issued, but the
day it was issued, June 25th, was not in dispute.  Tr. 615. 

[44] For the record, this
matter involved 30 C.F.R. § 57.16001, titled “Stacking and storage of
materials,” which provides that supplies shall not be stacked or stored in a
manner which creates tripping or fall-of-material hazards.  The inspector
found, at the second level of the upper shop, an above-ground location,
materials were stacked in front of shelves which he believed created a tripping
hazard for those accessing the shelves.  Tr. 328.  It was appropriate to settle
this matter.

[45] Payment should be sent
to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, PAYMENT
OFFICE, P.O. BOX 790390, ST. LOUIS, MO 63179-0390