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

Plain-English summary

Original Sixteen to One Mine contested two citations involving combustible wood near a mine portal and mud and water in a secondary escapeway. Judge William B. Moran held that the wood violated the limit on storing more than a one-day supply of combustible material within 100 feet of a mine opening. Although the regulation's wording was ambiguous enough to reduce negligence to low, its protective purpose supported the violation. The judge also found that mud and water made part of the escapeway less safe and travelable. The Secretary proved that violation was significant and substantial, but provided limited evidence about how far the condition extended, and negligence was again reduced to low. Both citations were affirmed, with penalties of $75 and $68, for a total of $143.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 57.4131(a) and 57.11051(a)
• Outcome: Both citations were affirmed, and the operator was assessed a total civil penalty of $143.
• Key point: Ambiguous wording and limited proof about the extent of a condition can reduce negligence and penalties even when the Secretary establishes the underlying safety violations.

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

June 13, 2018

SECRETARY OF LABOR

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

ORIGINAL SIXTEEN TO ONE

MINE, INC.,

Respondent.

CIVIL PENALTY PROCEEDING

Docket No. WEST 2017-0119

A.C. No. 04-01299-423919

Sixteen to One Mine

DECISION AND
ORDER [1]

Appearances:               Isabella
M. Finneman, Esq. ,Office of the Solicitor, U.S. Department of Labor, San
Francisco, CA 94103, for Petitioner [2]

Mr.
Michael Miller, President, Original Sixteen to One Mine, Inc., Alleghany,
California, for Respondent

Before:                        Judge Moran

This docket is before the Court upon a petition
for assessment of civil penalties under section 105(d) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(d). Two citations are in issue. A
hearing was held in Nevada City, California commencing on August 9, 2017. For
the reasons which follow, the Court finds that both the alleged violation of 30
C.F.R. § 57.4131(a), a matter involving a claim that more than a one day’s
supply of combustible materials was stored within 100 feet of a mine opening, and
the alleged a violation of 30 C.F.R.      § 57.11051(a), involving a claim that
an escape route was not maintained in safe, travelable condition, were
established.  

Violations at Issue

Introduction

At issue in Docket No. WEST 2017-0119 are two
104(a) citations, with a total proposed penalty of $392.00.

Citation No. 8879804:

Citation No. 8879804 alleged a violation of 30
C.F.R. § 57.4131(a). That standard, 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.”

The condition or practice identified
in the 104(a) citation alleged:

Combustible
materials were being stored within 100 feet of the entrance to Portal 2 located
at the zero level at the mine. There was a pile of cut wooden 2 by 4s located
about 15 feet to the right of the entrance of Portal 2. A pile of timbers were
also located to the right of the portal entrance about 5 feet from the wooden 2
by 4s. Observed on the left side of the entrance of Portal 2 were two piles of
combustible materials consisting of timbers of various sizes. Both piles were estimated
to be less than 20 feet from the entrance of the mine. This condition creates a
hazard of smoke inhalation into the mine in the event of a fire. A miner was
working about 75 feet inside the mine at Portal 2. Standard 57.4131a was cited
3 times in two years at mine 0401299 (3 to the operator, 0 to a contractor).

GX 2.

The inspector assessed the gravity as unlikely,
the injury or illness that could reasonably be expected to be lost workdays or
restricted duty, not significant and substantial (“non-S&S”), with one
person affected. The Secretary proposed a civil penalty of $157.00.

Citation No. 8879805 :

Citation No. 8879805 alleged a violation of 30 C.F.R.
§ 57.11051(a). That standard, titled, “Escape routes” provides: “Escape routes
shall be - (a) Inspected at regular intervals and maintained in safe,
travelable condition.”

The condition or practice
identified in the 104(a) citation alleged:

The designated
secondary escape way located in 21 tunnel of the mine was not being maintained
in a safe, travelable condition. There was an area in the escape way that had a
buildup of silt and mud. The buildup was estimated to be about 20 feet long,
and extended out about 53 inches from the wall of the tunnel. The buildup was
about 3 feet high at its highest point located against the wall of the tunnel
and about 6 inches high at its lowest point which was located in the travel
way. This condition impedes miners trying to escape through this route during
the event of an emergency, hampers the safe evacuation of injured miners being
assisted out, and has the potential of causing an injury to the miner. Standard
57.11051a was cited 2 times in two years at mine 0401299, to the operator.

GX 5.

The inspector assessed the gravity
as reasonably likely, the injury or illness that could reasonably be expected
to be lost workdays or restricted duty, significant and substantial (“S&S”),
with one person affected.

As a subsequent action, the inspector modified
the negligence alleged from high to moderate, based on mitigating information
presented by the operator. Id . The operator also “removed a good portion
of the buildup of silt and mud out of the travel way, thus terminating the
citation.” Id . The Secretary proposed a civil penalty of $235.00.

Findings of Fact

MSHA Inspector Julie Hooker, the
issuing inspector, testified regarding the citations in this docket. Tr. 29. Inspector
Hooker became an authorized inspector in October 2015. Tr. 30. The inspector
has no prior mining experience. Tr. 32. On September 21, 2016, she inspected
the Respondent’s mine. Tr. 35. She was there in response to an EO4 anonymous
hazard complaint. With her at that time was her field office supervisor, Troy
Van Wey, who also testified about the citations. The hazard complaint alleged
that the secondary escapeway was not safe. Tr. 36. A second issue involved a
miner working at “the zero level,” which term refers to where the upper shop
and the number one and two portal locations, each of which are on the surface. Tr.
37.

Citation No. 8879804           

Inspector Hooker identified Citation
Number 8879804, which she issued for “combustible materials being stored within
a hundred feet of the entrance to Portal Number 2, citing 30 C.F.R. §57.4131a.”
Tr. 38. She stated that the standard requires “that not more than one day's use
of [combustible] material can be stored within a hundred feet of the mine
opening.” Tr. 38-39.  She observed “a couple piles, to the left and to the
right of the opening, and they were within the -- they were less than a hundred
feet. There was timbers [sic] that the miner had been taking out, and there was
new wood that he was installing. From what I understand, it had been there --
he had been working there in that area for about two and a half weeks …” Tr.

39. The miner referred to by the inspector was working inside the portal at
    that time. Id. The inspector took photos of the material she observed. Tr.
    39-40. In the photos, the Inspector identified old timber that had been removed
    from the mine, and new wood as well; two-by-fours. Tr. 40. A miner told her
    that the entry she observed was Portal Number 2, an entry into the mine where
    that miner was currently working. Tr. 41. The miner informed Hooker that he had
    been working at that location for two and a half weeks and that the wood had
    been placed there the previous Friday, with the following Tuesday being the day
    she was performing her inspection. Id. In determining that there was
    more than a one day supply of materials, she informed that  she asked a miner
    how long the material had been there and how long he had been working there. The
    miner’s response was that he had been working there for “about two and a half
    weeks.” Id.

Continuing to speak to Citation Number 8879804, GX
2, the Inspector stated that in her evaluation, she marked the citation, under
gravity, as unlikely, the injury or illness reasonably expected as lost
workdays or restricted duty, not S&S, and with one person affected. However,
she marked the negligence as “high.” In connection with those designations, the
Inspector acknowledged that she saw no ignition sources, that is, nothing that
could ignite the wood.      Tr. 41-42. As for the lost workdays or restricted
duty designation, it was based on her observing one miner working, but there
was not a lot of wind that day. Therefore, she believed that, in the worst
case, there would probably be some mild smoke inhalation. Tr. 42. The
distance from the portal to the timbers was determined by the Inspector and her
supervisor using a tape measure. Id. The timber furthest from the
opening was 20 feet. Tr. 43. High negligence was marked because the mine had
been cited for this condition “before in the same area.” Tr. 43-44. Other
photos were taken of the cited condition. These reflected some new lumber as
well as lumber that had been removed from the mine. GX 4; Tr. 44-45. 

Upon cross-examination, the Inspector stated
that she became an AR in October 2105. Tr. 48. Asked for the basis for her
conclusion that old timbers were being stored, the inspector stated that a
miner informed they had been there since last Friday. Tr. 55. She did not know
the hours for the work crew at the mine. Id. Asked the basis for
concluding that the mine was storing the wood, and not, as the Respondent would
later assert, that it was in transit, the Inspector stated that a miner told
her the old wood came from inside the opening and the new wood was for laying
track. Tr. 55. She again stated that she saw no signs of ignition sources and
for that reason marked the citation as unlikely. Tr. 56. The Inspector defined
combustible as “anything that can be ignited.” Id. She admitted to no
experience being “involved in an operation where people are repairing or
renovating track, mine rail.” Tr. 57.

In terms of marking the violation as high
negligence, the Inspector was asked how her review of the mine’s prior
citations for storing combustible material impacted her decision to mark the
violation as high negligence. Tr. 58. The Inspector stated that she had done a
“thorough review” of those prior citations and that the review included
pictures of those prior violations. Tr. 59. However she conceded that the scene
she viewed for this citation did not resemble those prior violations. Id. The
Inspector did not know if the air at the number 2 portal was exhausting or
intaking. Tr. 61. She conceded such information could make a difference in
assessing who could be harmed.

The Inspector was also asked if, from her
background or training, she could distinguish between storing something and
having it in transit. She responded that storage occurs if something is at a
location for more than one day, while transit is using the material within that
one day. Tr. 63. She was then asked about distinguishing supplies from waste
and she answered that supplies are things one is going to use, while waste
covers things that will not be used.   Tr. 63-64.

On redirect, the Inspector stated that, for
purposes of the standard she cited, the direction of air flow to the portal does
not matter. Tr. 64.  Except for some cinder blocks she observed, the remainder
of the material was combustible and it was more than a one day’s supply. Tr.
64-65. Her conclusion about the material being present for more than one day
was based upon the miner who told her it had been there since the previous
Friday and, as she was there on a Tuesday, four days had elapsed. Tr. 65.

Respondent’s Mr. Miller then testified about
this citation. Tr. 90. He stated that the “respondent has extensive policies
and procedures for handling storage material, material in transit as well as
the use and maintenance and repair of second exits. They are extensive, they're
written, they're in our policy manual.” Id. Respondent asserted that
Inspector Hooker “did not have the background and actual practical experience
to really understand what she was inspecting.” Tr. 91. Part of the Respondent’s
position is that when MSHA comes to a mine, “they should honor and respect the
specifics of this particular mine or operation that they are inspecting[,adding]
[t]hat's also pretty clear in the language and intent of congress, site
specific.” Tr. 92.

Much of Mr. Miller’s testimony was essentially
an objection to the manner in which MSHA inspects. All of his contentions were
reviewed, but not every comment deserves a response where the Court finds that
such comments are not relevant to the citations in issue. Those issues are
whether the standard was established as having been violated and, if so, the
appropriate penalty upon consideration of the statutory factors.

Mr. Miller stated that the zero level has two
adits. It was the first adit that was questionable and which was sealed
according to prior inspectors. The mine was at that time rehabilitating the
number two adit. Thus, he asserted that, in the process of rehabilitating the number
two adit the inspectors viewed “a work in progress where they were taking,
repairing track. They had their supply of track ties right there where they
brought them out. They put them there where they come outside close to the
portal. I would have stipulated that it was 20 feet.”  Tr. 94-95. Thus, he
contended that the only place those “track ties could be would be right at the
outside stored there so they can walk out and get the track ties and put them
in when they're installing the rail.” Tr. 95.

As for the rotten lumber, he
asserted they could not be considered “in storage.” Rather, “it was a waste
pile that is hauled off as needed. It could be every day, it could be every week.
It doesn't meet the language of that standard. It's not supplies as clearly Ms.
Hooker stated. It wasn't supplies. It's waste.” Id. Thus, he contended they
were not stored. He expressed that the idea of the standard “is to eliminate long-term
storage of the materials that could have the potential to ignite and then lead
to an intake of air into the mine.” As this citation was issued in September,
the air is blowing out of the mine and therefore there was no possibility of
any injury to the miner who was working there at that time. Tr. 95-96. Regarding
the claim that the material had been there for four days, Miller contended that
the small mine is only open from Tuesday through Fridays. Therefore, the waste
pile was there at 5 p.m. on that Friday and the small number of two-by-fours
were there when the miner returned to work on Tuesday. [3]
Tr. 96.

On cross-examination, Miller
confirmed that waste from the mine could be hauled off every day or every week
or just as needed, stating “[t]hat’s our policy and procedure.” Tr. 104. He
agreed that the waste cited in Citation No. 8879804 was wood, describing it as
“very, very old timber” that was being removed during the rehabbing process and
that it was combustible. Tr. 105-109.

Citation No. 8879805

The other matter in issue, Citation
No. 8879805, was issued by the same inspector on September 21, 2016. This was
issued for an alleged violation of the designated secondary escapeway [4]
not being in a safe, travelable condition. This conclusion was based upon finding
a “huge buildup of silt and mud that blocked passageway.” Tr. 66; GX 5; and GX
7 (photos). Referring to the photos, the Inspector stated they show a buildup
of mud and silt along the sides of the escapeway. Tr. 67. That mud and silt was
muddy and “sticky in certain parts” and she opined that one could not walk on
it without getting stuck. Id. The depth of the material ranged from
“probably six inches” near the water to “about three feet high” at its highest
level. Id. The depths were determined by using a tape measure. Mr. Van
Wey assisted her in taking the measurements. Id. Thus, the Inspector
confirmed that she saw some portions of the escapeway with water and mud up to
three feet in depth. Tr. 68. Asked if this covered the entire bottom surface of
the escapeway, the Inspector answered by referring to one location to the right
on a photo that had the most buildup, stating that they measured that “to be
about 52 inches from the side of the tunnel there to where you see there the
water. It was about 52 inches wide.” Tr. 68.

The Court asked if “in the secondary
escapeway, were there areas where one could walk away from the water and be in
some small amount of water and still traverse.” The Inspector answered, “[n]ot in
that area that [she] took a picture.” Tr. 69. Asked how extensive this
condition was, that is, “[h]ow far did this water extend where you had an issue
with its depth and the mud,” the Inspector responded, “I believe it ran through
the course of the whole escapeway, but we did not travel past that area.” She
therefore conceded that she would have no way of knowing how far the condition
existed, stating, “[c]orrect, Not at that time, no.” Tr. 69. She then admitted
that her “at that time” remark actually meant she did not later learn more
about the extent of the condition. She therefore admitted that it was perhaps
possible that the water she observed only continued for a few feet. Tr. 70. However,
the Inspector stated that she didn’t proceed further because she considered it
to be unsafe. Id.

The second photograph she took in
connection with this citation was described as “looking at the pipes that we
saw laying in the water, and there's also the buildup there that you can see
that comes close to those pipes.” Tr. 70-71. When the Court inquired about the Inspector’s
location when she took photo three of four and whether that photo was taken
from the same location as photo two of four, the Inspector stated she was not
sure and did not know.    Tr. 71. Then asked about photo four of four and the
location where that was taken, the Inspector expressed that it was more “two of
four,” by which she meant both photos two and four of the four photos were
taken from the same location. Tr. 71-72. Continuing, for photos two and
three of the four, the Inspector stated that the pipe in those photos is
normally there and that it is located in escapeway’s walking area. Tr. 72. This
also caused her concern because the pipe created a tripping hazard along with
the water and the mud. Tr. 73. However, upon questioning by the Court, the Inspector
stated that she would not have issued the citation based solely upon the pipe’s
presence. It was the combination of those factors, she explained, with the pipe
contributing to the unsafe condition of the escapeway. Id.

The Inspector marked the citation
as “reasonably likely” because the miner told her that he travelled that on a
weekly basis. Tr. 74. Although she agreed that the condition had been that way
for more than a week, she did not offer the basis for that opinion. Id. In
marking the injury as “lost workdays or restricted duty as the type of injury
or illness that could occur,” she based that upon her view that “if they had to
use that and running out of there in a hurried condition,” then “they would
probably get stuck in the mud,” and therefore sustain a muscle strain or a
twisted ankle producing lost workdays or restricted duty. Tr. 75.  Regarding
negligence, the Inspector, after initialing marking it as high, modified it to
moderate. Id. This change came about because the miner told her they
were working other projects, doing various things to try to improve safety in
the mine overall. Tr. 76.

On cross-examination, Mr. Miller
asked the Inspector to explain her reference to “emergencies.” The Inspector
responded that she meant a fire or some blockage in the mine that required
miners to exit the mine via the secondary escapeway.  The Inspector arrived at
the secondary escapeway through the mine’s main entrance. Tr. 80. There, she
met Reed Miller who informed that they were working exclusively at the 800
level.  At that point she asked him to identify the secondary escapeway for
their use and was told it was the secondary tunnel. The Inspector then advised
that the escapeway would have to be inspected, as a hazard complaint had been
made. Tr. 81. Thus, her purpose, per the standard was to see if it was
maintained in a safe and travelable condition. Id.

When the Respondent suggested that
if the Inspector had examined the records, it would have revealed that there
have been monthly inspections, each recorded by date and time and the person
who conducted the inspection, he asked if that would have changed the Inspector’s
view of the citation. The Inspector responded it would not have changed her
conclusion. Tr. 82. Referencing that she was a new inspector, and had no
underground mining experience, she was asked for her opinion as to how long the
mud she observed had been there. She responded that it was present for more
than a month. Id. She could not be more precise about how long the mud
had been present. Tr. 83. The Court then inquired about the issue, asking if
the Inspector in preparation for her inspection and reviewing the mine’s prior
violation history, found other citations that had been issued for not maintaining
a secondary escapeway at this location. She answered, “yes.” Tr. 84. In fact it
was also in the 21 Tunnel. Tr. 85.

Miller then testified about the
second citation, Citation No. 8879805. He began by asserting that the 21 Tunnel
“is an issue for many inexperienced … inspectors. This isn't the first time someone
has made a similar mistake of saying that you cannot travel and it's impeded
and with [the issuing inspector’s] pure speculations about how it could be
hazardous to the health and safety of a miner. It is inspected by MSHA rules
once a month, and it has been ever since I've been involved in mining.” Tr.
110-111. He then reviewed the history of the tunnel, adding that in the past it
had “ten times as much mill way sand in that tunnel, ten times or maybe fifty
times as much, it still passed inspection.” Tr. 111. Miller asserted that this
issue had arisen before and that those prior citations for that assertion were
subsequently vacated. Tr. 112. Miller contended that it is inspected each month
and while there may be a little slough in it, it doesn’t impede travel. Id.
Miller also contested the Inspector’s claim that there was three feet of water
and asserted that the pipe did not create a hazard. Tr. 114. Thus, while he did
not challenge the standard itself, he did assert that it has been incorrectly
interpreted by some inspectors and her claim that the passageway was blocked. Tr.
114-115. Last, he stated that this is an escapeway, not a travelway, with the
latter being more restrictive. Tr. 117.

On cross-examination, Miller
disagreed with the Inspector’s claim that there was three feet of buildup in
the walkway, where one travels, though he agreed there was buildup on the
sides, adding that such buildup had been there for at least 20 years. Tr. 117. He
also agreed there was water in the walkway, informing that it is the natural drain
tunnel level, as it’s “the lowest adit that comes out of the mine.” Tr. 118. However,
he maintained that water would never impede anyone from getting out of the
mine. Id. As to the water depth there, Miller stated it was never over
his 12 inch boots. Id. In this instance, he maintained that the boots he
had on at that time just above his ankles. Tr. 119. As for the boots the Inspector
wore that day, Miller agreed he did not see the Inspector that day. Tr.120. Regarding
the claim that there was mud in the walkway, Miller disputed that, asserting
that it was mill tailings.  Tr. 123. Miller added that the pipe referenced in
the Inspector’s testimony sits on the floor of the cited tunnel and that it is
not suspended or floating at that location. Tr. 124.

Troy Van Wey then testified about
these two citations, Citation Nos. 8879804 and 8879805. Van Wey is a field
office supervisor for MSHA’s Vacaville, California office, a position he has
held since February 2015. Tr. 127. Van Wey has significant mining experience as
an MSHA inspector and as a miner in private industry. He has inspected the
Respondent’s mine about a dozen times. Tr. 130. He participated in Inspector
Hooker’s inspection of the Respondent’s mine on September 21, 2016. Tr. 131. Regarding
Citation No. 8879804, Van Wey stated that he saw the condition cited in that
and that he agreed with Hooker’s evaluation of it, including the gravity and
negligence assessments. Tr. 132.

Van Wey was then asked for his
definition of combustible material, which he stated is “[s]omething that will
burn.” Tr. 132. He then described the cited materials as “[m]ostly old timbers
that they're using for support, I'm assuming, and then new timbers, new various
sizes, two-by-fours, I believe, four-by-fours, maybe some two-by-eights if I
remember correctly.”   Tr. 132.

Directed then to Citation No. 8879805,
GX 5, Van Wey confirmed that he was present when Inspector Hooker found that
condition as well. Tr. 133. As with the other citation, he agreed with all of
Hooker’s evaluations in this citation too. Asked if he felt the condition was
unsafe, he responded, “Yes. It was perceived as maybe a slip/trip-type hazard.”
Id. Specifically, he stated “there was a bunch of fine material that had
sloughed off one of the ribs and into the walkway.” Tr. 133-134. He also did
not attempt to walk through it, as he believed it to be unsafe. Tr. 134. Asked
to estimate how long the condition had existed, he responded, “there's a lot of
variables. It would depend upon the time of year. There's water that was
running through the escapeway. There's fine material, so for the water to carry
those fines, and it was buildup, again a guesstimate, maybe about three feet
high at its highest point along the rib and sloped into the walkway. I would say
months for it to get to that stage.” Id. Thus, his estimate was in line
with that of Hooker’s. In terms of the water depth, Van Wey estimated it as
“around ankle deep.” Id. Referring to the photos associated with this
citation, GX 7, he described it as showing “material that's sloughing off from the
right rib as I'm looking at it, it slopes off into the walkway, the middle section
that is the water that was running down the middle. There's also a pipe running
through the middle of that as well.” Tr. 135. Asked if one could traverse this
safely, he answered, “[n]ot without the hazard of slipping, tripping or
falling.” Id. As the pipe was in the walkway, he also considered it to
be a hazard. Id.

On cross-examination, Van Wey was
asked about the cited standard and its provision that escape routes are to be
“inspected at regular intervals and maintain safe, travelable conditions.” To
comply, the Inspector stated, the mine would need to inspect the escapeway on a
regular basis to see if it’s safe and travelable. Tr. 138.  There is no
paperwork requirement to document this however. Id. He admitted that
Hooker was a “fairly new inspector” and felt it was appropriate for him to join
her for the inspection, which arose from a hazard complaint. Tr. 139.

The Court noted that the abatement
of the two citations is recorded on the same documents. Tr. 141. Van Wey stated
that the same escapeway had been cited in the past.     Tr. 143.  As for the
issue of Hooker’s lack of mining experience, Van Wey defended his inspector,
stating that all inspectors receive a “tremendous amount of training before
they're given their authorized representative card.” Tr. 144- 145.  

Discussion

Citation No. 8879804

Regarding Citation No. 8879804, and the
claim that the Respondent violated 30 C.F.R.    § 57.4131(a), it is the
Secretary’s contention that the Respondent violated the cited standard because
used and new timbers were stored within 100 feet of a mine opening. Secretary’s
Post-Hearing Brief (“Sec’s Br.”) at 4.

The applicable provision from the
cited standard, section 57.4131(a), 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.” [5]

The Secretary asserts that “[t]he
old timbers and new 2 by 4’s fall within the definition of combustible
materials. These combustible materials had been left within 100 feet of Portal
No. 2 for more than one day. The miner was exposed to the hazard while entering
and exiting the Mine through Portal No. 2 on the day of the inspection.
Therefore, a violation of 30 CFR 57.4131(a) has been established.” [6]
Id. at 5.

Speaking to the Respondent’s defense, that it
was not storing the timbers at the cited location, but was
“transporting” them at the time that the citation was issued, the Secretary
acknowledges that the final rule for the cited standard expressed that it does
not prohibit the actual transit of combustible materials into the mine. Id.
(citing 50 Fed. Reg. 4022-01, 4025 (Jan. 29, 1985)). However, the Secretary contends
that the evidence demonstrated that the Respondent allowed timbers to be
stockpiled by Portal No. 2 and that it was not cited for transit of timbers. Id.

The Secretary also notes the Respondent’s
contention that it didn’t have more than a one day’s supply of timbers at the
cited portal location. While acknowledging the Respondent’s argument that the
phrase “more than one day” must mean more than 24 hours while the mine is in
operation, the Secretary responds that he is not aware “of any provision in
Section 57.4131(a) or the Secretary’s interpretive guidance that requires the
Secretary to show that the Mine was in continuous operation in order to
establish that the cited condition existed for more than one day.” Id. Even
if that were accepted, the Secretary asserts that the “Respondent did not
address the stored timbers when the Mine resumed operation on the morning of
the inspection.” Id. It is the Secretary’s position that the “Respondent
could have, at a minimum, begun the process of moving the timbers further away
from Portal No. 2 at the beginning of the shift prior to Inspector Hooker’s
arrival. Instead, Respondent continued the work of removing more timbers from
the Mine.” Id. at 6.

As to the Inspector’s gravity and negligence
evaluation for this citation, the Secretary acknowledges that the issuing Inspector
determined that it was unlikely that the condition cited would result in an
injury or illness to a miner, as there were no ignition sources near the
timbers and it was unlikely for a fire to occur at the two timber stacks. Id.
Further, in terms of the expected injury should the timbers ignite and burn,
such “flames would not be fanned and the exposed miner would suffer from, at
most, mild smoke inhalation,” and, at most, result in lost workdays or
restricted duty. Id.

However, the Secretary asserts that the Inspector
correctly determined that the Respondent was highly negligent because the
Respondent had been cited for violating this standard in the past. [7]
Id . at 7. Citing 30 C.F.R. § 100.3(d), a “high negligence” designation
is apt, the Secretary contends, where an operator “knows or should have known
of the violative condition or practice, and there are no mitigating
circumstances which explain the operator’s conduct in minimizing or eliminating
a hazardous condition.” Id. Apart from its past violations of the
standard theory to support the Secretary’s high negligence claim, the Secretary
also claims that “Miller admitted during his testimony that he knew that his
miner(s) placed the timbers near to the portal and that the timbers are not
always hauled away every day [by his testimony that] [t]hey put [the timbers]
there where they come outside close to the portal [and that he admitted] [t]he
rotten timber … was a waste pile that is hauled off as needed. It could be every
day, it could be every week.” Id. at 8 (citing Tr. 95:3-4 and 95:12-15).
Given these considerations, the Secretary “requests that a penalty of not less
than $157 be assessed for Citation No. 8879804.” Id.

Respondent’s Post-Hearing Brief (“R’s
Br.”) challenges the Inspector’s assertion that the wood had been within 100
feet of the portal for multiple days, as she included the weekend in her
calculation that the wood was present for four days. R’s Br. at 4. Respondent
contends that the Inspector’s total absence of mining experience contributed to
her inaccurate evaluation. Also, she did not know if the air at the portal was
exhausting or intaking. Id. at 6.

The Court’s Determinations regarding Citation No. 8879804

The
Court finds that the Secretary established the violation in this instance. The
chief reason for this conclusion it that the Mine Act is a remedial statute and
therefore must be construed liberally. As the Commission has observed,

The Federal Mine
Safety and Health Act of 1977 is a remedial statute, the ‘primary objective [of
which] is to assure the maximum safety and health of miners.” U.S. Senate,
Committee on Human Resources, Subcommittee on Labor, Legislative History of the
Federal Mine Safety and Health Act of 1977, 95th Cong., 2d Sess. at 634 (1978).
… In interpreting remedial safety and health legislation, ‘[i]t is so obvious
as to be beyond dispute that ... narrow or limited construction is to be
eschewed ... [L]iberal construction in light of the prime purpose of the
legislation is to be employed.’ St. Mary's Sewer Pipe Co. v. Director, U.S.
Bureau of Mines, 262 F.2d 378, 381 (3rd Cir. 1959); Phillips v. Interior Board
of Mine Operations Appeals, 500 F.2d 772, 782 (D.C. Cir. 1974), cert. denied,
420 U.S. 938.” (1975).

UMWA v. Consolidation Coal Co. 1 FMSHRC 1300, 1302 (Sept.
1979).

This Court has noted,

In enacting the
Federal Mine Safety and Health Act of 1977, Congress intended to ensure safe
working conditions for miners. The Commission and Courts of Appeal have
construed the application of the Mine Act liberally. One Circuit Court held
that ‘[s]ince the Act in question is a remedial and safety statute, with its
primary concern being the preservation of human life, it is the type of
enactment as to which a narrow or limited construction is to be eschewed.’ The
Commission, too, has held in multiple cases that the Mine Act, as a remedial
statute, must be interpreted broadly to further the Act's remedial goals. Thus,
close cases of interpretation of safety standards are to be resolved in favor
of furthering the goals of the Mine Act.

Lavarge Building Materials , 34 FMSHRC 3297, 3300-3301
(Dec. 2012) (ALJ).

Although a violation is found,
there are problems with the Secretary’s position that, in the Court’s
estimation, bear upon the determination of the penalty, at least for this
instance. The reasons for this determination are severalfold. First, the
standard itself plainly addresses a one day’s supply of combustible
materials, requiring that no more than that amount may be stored within 100
feet of mine openings.  The term “supply,” as a noun, is defined as “an amount
or quantity of something that is available to use.” [8]
 Therefore, facially, it does not encompass waste material. The standard could
have been easily written to expressly prohibit all types of combustible
materials located within 100 feet of mine openings, but that is not within the literal
scope of the provision.

Further, fairly construed, the
standard does not require that the one day’s supply must be used up each day. Such
language also could have been included within the standard’s proscription but,
as written, the standard allows the one day’s supply to be stored indefinitely
within 100 feet of a mine opening. [9]  Accordingly, at least as
promulgated, the plain objective of the standard is to allow a one day’s supply
of combustible materials within 100 feet of a mine opening, but not more than
that amount. The one day’s supply limit is therefore a compromise between
allowing some combustible material but not more than that day’s supply, so that
any combustion would be limited to storage of that amount.

The question then becomes whether the Secretary
established that there was more than a one day’s supply of combustible material
within 100 feet of the mine opening. In this regard, neither Inspector Hooker,
nor field office supervisor Van Wey, drew any distinction between supply materials
and waste materials; their focus was entirely upon the combustibility of the
material, not its nature. The Inspector identified combustible material but did
not distinguish between combustible new materials (i.e. supply materials) and
old timber. The latter, as has been explained, is not addressed by the
standard. Although Hooker opined about how long the material had been at that
location, the Court has determined that the standard contains no requirement
that the one day supply of material be used up each day. [10]
As such there was no testimony that the supply materials themselves
amounted to more than a one day’s supply, nor was there any rationale to
explain how it was determined that such supply material was more than a day’s
worth. Instead, implicitly, the inspectors wrote into the standard words that
do not appear in it, to wit: that the supply materials must be used up each
day.

Despite this, an examination of the rulemaking
for this standard reveals a more expansive intent of coverage. The proposed
rule, which revised a previous version of the standard, stated “The proposed
standard would apply only to surface areas of underground mines. It would
restrict accumulation of combustible materials , but not prohibit their
presence in transit or when used, in the construction of mine installations. In
addition, it would retain the existing provision prohibiting dry vegetation
within 25 feet of mine openings.” 48 Fed. Reg. 45336, 45338 (Oct. 4, 1983) (emphasis
added).

The Final Rule also reveals that the emphasis
addressed storage of combustible materials,

Section 57.4131
Surface fan installations and mine openings. This standard revises § 57.4-42
and applies to surface fan installations and mine openings at underground
mines. It restricts storage of combustible materials in these areas and
prohibits dry vegetation within 25 feet of mine openings. In response to
commenters, the final rule clarifies that the standard addresses fan
installations used for underground ventilation. In addition, the final rule
clarifies that the standard does not prohibit the actual transit of combustible
materials into the mine. Some commenters stated that the standard should exempt
materials used in construction of mine installations. The standard addresses
the storage of combustible materials and does not prohibit their use in
construction.

50 Fed. Reg. 4022, 4025 (Jan. 29, 1985) (emphasis added).

Accordingly, on the basis of the foregoing, the
citation is AFFIRMED . [11]

Penalty Determination for Citation No. 8879804

The section 104(a) citation was
marked as unlikely for gravity, non-significant and substantial, with lost
workdays or restricted workdays expected, and with one person affected. The
negligence was marked as “high.” The mine’s violation history is part of the
record and was considered by the Court. GX 1. The Secretary’s post-hearing
briefs did not refer to penalty factors other than the mine’s violation
history, negligence, and indirectly, gravity, through the Inspector’s
significant and substantial designation. The Respondent’s mine is small. Good
faith in attempting to achieve rapid compliance was ascribed to the operator. Per
Exhibit A, the number of repeat violations for this standard is listed as two and
there was no cognizable claim that these two proposed penalties, if assessed,
would have an effect on the operator’s ability to continue in business.

Given the facial ambiguity of the words employed
in the standard, the Court concludes that the Respondent’s contentions cannot
be dismissed as meritless. Therefore, the negligence is determined to be low. Considering
each of the statutory factors the Court concludes that a civil penalty of $75.00
(seventy-five dollars) is appropriate to impose.

Citation No. 8879805

Regarding Citation No. 8879805, and
the claim that the Respondent violated 30 C.F.R.  § 57.11051(a), it is the
Secretary’s contention that the Respondent violated the standard by failing to
maintain the designated secondary escapeway in a safe, travelable condition. Sec’s 
Br. at 8. The applicable section from the cited standard provides: “Escape
routes shall be - (a) Inspected at regular intervals and maintained in safe,
travelable condition.” 30 C.F.R.          § 57.11051(a).

As with the other cited standard, this matter also
arose in the wake of a hazard complaint. The Secretary maintains that Inspector
Hooker’s testimony establishes a violation of the cited standard. Id. at

9. The Secretary contends that Inspector Hooker believed in good faith that the
   muddy and wet conditions extended through the course of this entire secondary
   escapeway. Id. at 9 (citing Tr. 69:14-18). The Secretary also asserts
   that, per her evaluation of the gravity and negligence for this section 104(a)
   citation, it was reasonably likely that a miner traveling through the cited 21 Tunnel
   in a mine emergency would get stuck in the muddy conditions and that the
   expected injuries would be lost workdays or restricted duty. Id. at 10. The
   Secretary advises that determination was based on two considerations: the
   accompanying miner’s statement that he travelled the 21 Tunnel on a weekly
   basis and the Inspector’s good faith belief that the wet and muddy conditions
   had existed for more than a week. Id. The Inspector also expressed that “if
   a miner got stuck in the mud while hurrying through the 21 Tunnel in the event
   of a mine emergency, the miner would sustain injuries resulting in lost
   workdays/restricted duty.” Id.   This conclusion was based on “her
   knowledge, training and experience that a miner would sustain muscle strain or
   twisted ankle if he/she became stuck in the muddy conditions.” Id.

The Inspector’s negligence evaluation was initially
deemed “high,” but she reduced it to “moderate negligence” upon the exposed
miner stating that the Respondent was working to improve safety at the mine. The
Secretary also notes that field office supervisor Troy Van Wey testified that “Respondent
had been cited numerous times prior to this inspection for a violation of the
same standard (Section 57.11051(a)) due to conditions in the 21 Tunnel that
made it impassable.” Id. at 10-11.

The Secretary concludes that at
least moderate negligence was involved and that, when considered with the
significant and substantial characterization, the penalty assessed should at
least be $235.00. Id. at 11.

Respondent’s Post-Hearing Brief contends that
Inspector Hooker’s complete lack of any mining experience contributed to her
erroneous conclusions about this citation. Respondent claims that the 21 Tunnel
passed inspection for a number of years and it was until recently that MSHA
started having issues with it. Respondent also challenged the Inspector’s claim
that there was up to three feet of water in that escapeway, asserting that he
has never experienced water going over his boots and the Inspector’s boots were
only six inches deep, which he opined were inadequate boots to be wearing. R’s
Br. at 14. Respondent also contended that the two inspectors had differing
views of the water depth. Id.

Discussion

Citation No. 8879805

The Court also finds that standard 30 C.F.R.
§ 57.11051(a) was established as violated. The Court notes that the requirement
to inspect at regular intervals was not part of the alleged violation. Instead,
it was the claim that the escape route was not being “maintained in safe,
travelable condition.” The testimony and the photographs, per GX 7, show some
water in the escapeway, but apart from the Inspector’s testimony, the photos themselves
do not show a “huge buildup of silt and mud that blocked passageway.” Even the Inspector
was restrained in her description, stating that the mud and silt was muddy and
sticky in certain parts. Further, when asked if the water and mud covered the
entire bottom surface of the escapeway, Van Wey’s response was that there was
one location that had most of the buildup which was measured to be about 52
inches from the side of the tunnel. A more fundamental problem was, when asked
if the condition ran the course of the whole escapeway, neither inspector could
answer about the extent of the problem. This was because neither inspector
traveled past the area they observed. In fact, Hooker admitted that the water
she observed may only have continued for a few feet. The presence of the pipe
is a non-issue, because the inspectors were not claiming that was part of the
violation. Thus, the issue was about mud and water only, with the testimony
placing emphasis on the mud. As noted, the water, according to Van Wey was only
“around ankle deep.” Tr. 134. Even the mud, Van Wey disclosed, sloughed off the
right rib into the walkway with water running down the middle section of it.

The Court’s Determinations regarding Citation No. 8879805

Based on the credible testimony of the
inspectors, the Court finds that the violation was established. However, the
Secretary’s proof of the extent of the condition was quite limited. Accepting
that the mud and water observed diminished safe and travelable conditions, the
evidence does not support a conclusion that this existed over a significant length
of the escape route. The burden of proof, including the extent of a violative
condition is on the Secretary [12] and, as Hooker admitted,
the condition may have extended only a few feet. Neither she nor Van Wey knew
the extent of the problem, electing not to travel beyond the point they
encountered the conditions.

Penalty Determination for Citation No. 8879805

The section 104(a) citation was
marked as reasonably likely for gravity, and as significant and substantial, with
lost workdays or restricted workdays expected and with one person affected. The
negligence, first marked as “high” was later modified by the Inspector to
“moderate.” As noted above, the mine’s violation history is part of the record
and was considered by the Court. Ex. GX 1. The Secretary’s post-hearing briefs
did not refer to penalty factors other than the mine’s violation history,
negligence, and indirectly, gravity, through the Inspector’s significant and
substantial designation. The Respondent’s mine is small, good faith in
attempting to achieve rapid compliance was ascribed to the operator. Per
Exhibit A, the number of repeat violations for this standard is listed as zero [13]
and there was no cognizable claim that these two proposed penalties, if
assessed, would have an effect on the operator’s ability to continue in
business.

Although it is difficult to assess
the gravity, given the limited evidence of the extent of the condition presented
by the Secretary and taking into account Mr. Miller’s testimony on the issue, the
Court finds that the reasonable likelihood, and significant and substantial
evaluation were established, [14] but in the context of a
resulting lost workdays or restricted duty injury.

As for the moderate negligence
designation, the Court notes that “[n]egligence is not defined in the Mine Act.
The Commission has found that ‘[e] ach mandatory standard thus carries with it
an accompanying duty of care to avoid violations of the standard, and an
operator’s failure to satisfy the appropriate duty can lead to a finding of
negligence if a violation of the standard occurred.’ A.H. Smith Stone Co .,
5 FMSHRC 13, 15 (Jan. 1983) … [and] [i]n determining whether an operator meets
its duty of care under the cited standard, the Commission considers what
actions would have been taken under the same or similar circumstances by a
reasonably prudent person familiar with the mining industry, the relevant
facts, and the protective purpose of the regulation.” Sims Crane , 39
FMSHRC 116, 118 (Jan. 2017) (ALJ McCarthy).

Further, it is a given that “Commission
judges are not required to apply the level-of-negligence definitions in Part
100 penalty regulations and may evaluate negligence from the starting point of
a traditional negligence analysis rather than from the Part 100 definitions. …
Thus, in making a negligence determination, a Commission judge is not limited
to an evaluation of allegedly mitigating circumstances, but may consider the
totality of the circumstances holistically .” Id. (emphasis
added).

The Court applies the holistic approach.
Given the state of the evidence regarding the limited established extent of the
condition, the Court finds that the level of negligence is fairly established
as low.

Upon consideration of all of the
penalty factors, the Court finds that a civil penalty of $68.00 (sixty-eight
dollars) is the appropriate assessment. [15]

ORDER

For the reasons set forth above, Citation
No. 8879804, which alleged a violation of 30 C.F.R. § 57.4131(a) is AFFIRMED
and a civil penalty of $75.00 is imposed.

For the reasons set forth above,
Citation No. 8879805, which alleged a violation of 30 C.F.R. § 57.11051(a) is AFFIRMED,
and a civil penalty of $68.00 is imposed.

A total civil penalty of $143.00
is hereby imposed upon Respondent , Original Sixteen to One Mine, Inc., for
this violation. Payment is to be made to the Mine Safety and Health
Administration within 40 days of the date of this Decision. Upon timely receipt
of payment, the captioned civil penalty matters are DISMISSED.

/s/
William B. Moran

William
B. Moran

Administrative
Law Judge

Distribution:

Isabella M. Finneman, Esq., Office of the Solicitor, 90
Seventh Street, Suite 3-700,

San Francisco, CA 94103

Michael Miller, President, Original Sixteen To One Mine,
Inc., P. O. Box 909,

Alleghany, CA 95910

[1] Originally, Docket No.
WEST 2017-0173 was heard with WEST 2017-0119. Subsequently, the Secretary moved
to dismiss all citations within Docket No. WEST 2017-0173. The Court issued its
Dismissal Order for that docket on January 11, 2018.

[2] Ms. Laura Ilardi Pearson,
Esq. appeared at the hearing for the Secretary. Subsequent to the hearing,
Attorney Pearson left the Solicitor’s Office for other employment. Attorney
Isabella M. Finneman submitted the post-hearing briefs for this docket.  

[3] Miller was perturbed
that, to abate the citation, he “had to go and take those track ties and put
them back over in the shop and just get them, you know, a hundred feet away.” Tr.

97. He continued, “[t]here was a pile of cut wood in two-by-fours. Those are
    track ties. We can sometimes lay ten feet, we can sometimes lay hundred feet of
    rail. Depends on the circumstances of what we're doing at that time. We put
    track ties every three or four feet. We put track ties where we have a joint --
    where the two tracks meet with fishplates. We have situations where we will put
    them closer together. We have situations where maybe we can extend them out. So
    a miner is going to have a supply that he thinks he can get through that day,
    and that varies.  There is no standard like eight ties or ten. There was no
    storage of supplies, there was no long-term storage.” Tr. 98. Thus, it was
    Miller’s contention that the inspector’s lack of any practical experience led
    to this issue.

[4] The escapeway was
identified as the secondary escapeway by the miner who accompanied the
inspector that day. Tr. 74.

[5] Because the Respondent
raised a separate section for this standard, section 57.4131(b), the text of
that provision is noted. It provides: “(b) the one-day supply shall be kept at
least 25 feet away from any mine opening except during transit into the mine.” However,
the Court concludes that this subsection is not useful in resolving the cited
provision.

[6] The Secretary notes that
“‘Combustible material’ is defined in 30 CFR § 57.2 as “…a material that, in
the form in which it is used and under the conditions anticipated, will ignite,
burn, support combustion or release flammable vapors when subjected to fire or
heat [] [and that] Section 57.2 also states: ‘Wood, paper, rubber, and plastics
are examples of combustible materials.’ Secretary’s Post-Hearing brief (“Sec’s
Br.”) at 4. There is no genuine dispute about the materials’ combustibility.

[7] The Secretary is correct
in asserting that the operator had been cited for violating this standard in
the past. He notes, “[i]n May 2011, and again in May 2014, the Secretary cited
Respondent for storing timbers near a mine portal in violation of Section
57.4131(a). The ALJ decisions affirming these citations can be found at Secretary
of Labor v. Original Sixteen to One Mine, Inc ., 36 FMSHRC 2224, 2235
(Bulluck, ALJ) (August 20, 2014) (affirming citation issued in May 2011 for
“more than a day’s supply” of timbers stored 30 to 90 feet from the mine
portal), and Secretary of Labor v. Original Sixteen to One Mine, Inc .,
38 FMSHRC 1019, 1043 (Moran, ALJ) (May 3, 2016) (affirming citation issued in
May 2014 for timbers stored for more than one day at a location that the
parties stipulated was less than 25 feet from the mine portal).” Id. at
7.

[8] https://www.macmillandictionary.com/us/dictionary/american/supply.

[9] Were it not for the
remedial nature of the Mine Act, this construction of the standard’s terms has
a logical appeal. Consider this scenario: At the start of a day, a mine operator
has a one day’s supply of combustible materials which is within 100 feet of a
mine opening. That material remains there during the entire day until the last
hour of work, when it is brought into the mine for use the following day. During
the time the material remained within 100 feet of the opening, it would
potentially be subject to combustion, but the standard does not prohibit its
presence during those hours nor does it require any anti-combustion steps to be
employed while it remains at that mine opening location.

[10] Because the Court has
determined that the one day’s supply need not be used up each day, the issue of
the number of days the material was there is not of consequence. However, even
if one were to conclude that such material must be used each day, the number of
days this material was stored is fairly subject to debate. This is because
there was unrebutted testimony that the mine did not operate on Friday or the
weekend, reducing the number of days to one.

[11] No doubt, in reaction to
this decision, when MSHA next inspects the Respondent’s mine, it will be
attentive to this decision. Given that, the Court hopes that the Respondent
will avoid future litigation by taking the simple prophylactic step of ensuring
that its supply material and, for that matter, any combustible material, be
located more than 100 feet from any mine opening.

[12] The Secretary is
required to prove all elements of the alleged violations by a preponderance of
the evidence, which requires the trier of fact to believe that the existence of
a fact is more probable than its nonexistence. RAG Cumberland Res. Corp .,
22 FMSHRC 1066, 1070 (Sept. 2000) (internal citations omitted).

[13] Although the citation
asserts that this standard was cited two times in the past two years and noting
that inspector Van Wey asserted that the escapeway had been cited in the past,
this is insufficient to establish as part of the violation history for this
citation, given Exhibit A.

[14] The violation, as noted,
was established. The discrete hazard is the risk of injury to a miner because
the presence of the mud and water diminished safe and travelable conditions,
whether during a regular inspection of the escape route, or during the need to
use that escapeway in an emergency. The Inspector’s testimony, which the Court
accepts as credible, supports the conclusion that there is a reasonable
likelihood that the violation will result in the hazard, that the hazard
contributed to would result in an injury and, with the expected injury being
lost workdays or restricted duty, such an injury is of a reasonably serious
nature. Newton Energy, 38 FMSHRC 2033, 2036-39 (Aug. 2016).

[15] As noted for the
citation alleging combustible material storage, it is to be expected that if
subsequent violations of this standard are alleged, the Secretary will likely
overcome the evidentiary deficiencies identified in this decision and therefore
the Court urges Mr. Miller to be vigilant in maintaining safe and travelable
conditions in the mine’s escape routes.