Extra Energy, Inc.

Plain-English summary

Extra Energy mined coal refuse from the middle of a steep pile instead of following its approved ground control plan from top to toe or in controlled lifts. Judge Jacqueline R. Bulluck found that the method destabilized the pile and exposed a foreman working below roughly 100 feet of unconsolidated material to engulfment, crushing, or suffocation. She also found that the foreman failed to identify and correct the obvious hazard during required examinations, including a large slip above the work area. Both violations were S&S, highly negligent, and caused by unwarrantable failure. The order and citation were affirmed with penalties totaling $34,600.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.1000 and 77.1713(a)
• Outcome: Both violations were affirmed as S&S and unwarrantable failure; total penalties were $34,600.
• Key point: An operator must follow its approved ground control plan and record obvious instability before assigning work below a refuse pile.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9987 / FAX: 202-434-9949

December 19, 2012

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner

v.

EXTRA ENERGY, INC.,

Respondent

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CIVIL PENALTY PROCEEDING

Docket No. WEVA 2009-674

A.C. No. 46-07812-172228

Mine: Roadfork Strip & Auger

DECISION

Appearances:  Patrick M. Dalin, Esq., U.S. Dept. of Labor, Office of the Solicitor, Philadelphia,
Pennsylvania, for Petitioner;

James F. Bowman, Bowman Industries, Midway, West Virginia, for Respondent.

Before:            Judge Bulluck

This case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of her Mine Safety and Health Administration
(“MSHA”), against Extra Energy, Incorporated, (“Extra Energy”), pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. § 815. The Secretary seeks a
total civil penalty in the amount of $34,600.00 for two alleged violations of her mandatory safety
standards.

A hearing was held in Charleston, West Virginia. The following issues for resolution are:
(1) whether Respondent violated 30 C.F.R. §§ 77.1000 and 77.1713(a); (2) whether the
violations were significant and substantial; and (3) whether the violations were attributable to
Extra Energy’s unwarrantable failure to comply with the Secretary’s safety standards. The
parties’ Post-hearing Briefs are of record.

For the reasons set forth below, I AFFIRM the citation and order, as issued, and assess
penalties against Respondent.

I. Stipulations

The parties stipulated as follows:

1. Extra Energy was an “operator,” as defined in section 3(d) of the Mine Act, as
amended, 30 U.S.C. § 802(d), at the Roadfork Strip & Auger Mine, at the time that Order No.
7207738 and Citation No. 7207737 were issued.

2. The operations of Extra Energy at the Roadfork Strip & Auger Mine at the time that
Order No. 7207738 and Citation No. 7207737 were issued are subject to the jurisdiction of the
Mine Act.       

3. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judges, pursuant to sections 105 and
113 of the Mine Act. 

4. The individual whose signature appears in Block 22 of the citation and order at issue in
this proceeding was acting in his official capacity, and as an authorized representative of the
Secretary when the citation and order were issued.

5. True copies of Order No. 7207738 and Citation No. 7207737 were served on
Respondent and/or its agents, as required by the Mine Act.

6. Payment of the total proposed penalty for Order No. 7207738 and Citation No.
7207737 will not affect Respondent’s ability to continue in business.

7. The citation and order contained in Exhibit A, attached to the Secretary’s petition, are
authentic copies of the citations and orders at issue in this proceeding, with all appropriate
modifications or abatements, if any.

8. Each inspector’s evaluation of the number of persons that would be affected as a result
of the conditions or practice cited, as found in Block 10(D) of each of the orders, is true and
accurate, given the circumstances set forth in said orders.

9. MSHA’s Data Retrieval System, publically available
at:http://www.msha.gov/drs/drshome.htm, accurately sets forth:

a. The controller of the Roadfork Strip & Auger Mine, at the time of the violation,
produced between 1,000,000 and 3,000,000 tons of coal in 2007.

b. The Roadfork Strip & Auger Mine produced 24,419 tons of coal in 2007.

c. The Roadfork Strip & Auger Mine had 0 violations issued in one inspection day
 in the 15-month period preceding the violations at issue.

10. Extra Energy, Inc. stipulates to the authenticity of all exhibits that the Secretary
identified in her Pre-hearing Statement. Extra Energy, Inc. further stipulates that the Pre-Shift
Reports, Daily Reports and On-Shift Reports, and photographs that it produced in response to the
Secretary’s discovery requests are authentic and admissible.

11. The Secretary stipulates to the authenticity of all the exhibits that Extra Energy, Inc.
identified in its Pre-hearing Statement.

II. Factual Background

Extra Energy operates the Roadfork Strip & Auger Mine, a small surface mine located in
McDowell County, West Virginia. Resp. Br. at 2. The mine contains a refuse pile comprised of
slate, rock, and coal estimated to have been dumped on the site in the 1950s or 1960s by a former
coal mining operation. Tr. 137, 173, 460, 478. Extra Energy extracts refuse material from the
pile to recover coal, which it then sells for profit. Tr. 30-31. Governing Extra Energy's refuse
removal operation is its MSHA-accepted Ground Control Plan and Amendment for Removal of
Existing Dry Refuse Pile (“Plan”).

Ex. P-21. The Amendment is a list of ten practices to be
followed when extracting coal from the refuse pile.

On March 13, 2008, MSHA inspector trainee Clarence Meadows was accompanying
Inspector Bruce Billups on a regular inspection of the Roadfork Strip & Auger Mine.

Tr. 30. At
that time, Meadows had been an MSHA inspector for approximately one year. Tr. 26. Prior to
working for MSHA, he had approximately 27 years of experience in the mining industry, holding
various positions including section boss, mine foreman, and superintendent. Tr. 26-27.

During this inspection, Billups and Meadows traveled through the mine along a haul
road. Tr. 32. After briefly stopping to review the Plan, the inspectors turned onto a road that ran
above the refuse pile. Tr. 38, 43; Ex. P-24. From their vantage point above the pile, they
observed a haul truck traverse an access road to the far end of the refuse pile, where it

stopped next to a parked excavator.

Tr. 43-44; Ex. P-24. Using a range finder, the inspectors
determined the distance from the top of the pile to the excavator to be approximately 100 feet.
Tr. 69, 71. They observed foreman Robert (“Chuck”) Preservati exit the haul truck, start the
excavator and remove material from the pile, then load it onto the truck. Tr. 65. There was
approximately 100 feet of unconsolidated refuse above where Preservati was working. Tr. 71,

73. This material sat above the access road on a steep slope that was vertical in some areas.
    Tr. 139, 162-63. Meadows noticed a large slip, where tons of material had broken loose and slid
    down to the area above the access road.

Tr. 91, 123; Ex. P-24. The slip was approximately 40'
wide, 40' long, and 4' deep. Tr. 58. Upon observing Preservati working beneath the unstable
material, and determining the area to be unsafe, Billups immediately instructed Meadows to go
down to the access road and order Preservati to leave the area. Tr. 65-66. After Preservati drove
away from the bottom of the refuse pile, the inspectors instructed him to dig a large ditch to
prevent access to the area. Tr. 66-68. When Preservati closed off the access road, the inspectors
informed him that Extra Energy was mining in violation of its Ground Control Plan. They
advised him of their intention to issue an order preventing further mid-pile extraction, and a
citation for failing to conduct adequate pre-shift examinations, as evidenced by the hazardous
conditions that they observed. Tr. 93-95.

III. Findings of Fact and Conclusions of Law

A. Order No. 7207738

Inspector Billups issued 104(d)(1) Order No. 7207738, alleging a “significant and
substantial” violation of section 77.1000 that was “highly likely” to cause an injury that could
reasonably be expected to be “fatal,” and was caused by Extra Energy’s “high” negligence and
“unwarrantable failure” to comply with the standard.

The “Condition or Practice” is described as
follows:

The operator fail [sic] to follow the amended ground control plan,
dated 02-09-08, at this mine for the removal of a refuse pile. Instead
of removing the material from top to toe in 12 ft. lifts the operator
started app. 100 ft. below the top and the road cut under the material
reduced the stability of the working face and also violated the plan by
making the material being removed higher than the operator’s cab. An
area 40 ft. x 40 ft. had broken lose [sic] from the face and was easily
visible. It is highly likely that the material being removed would break
lose [sic] and engulf the worker below who at times was walking
between the truck and material being removed. This is more than
aggravated conduct and constitutes more than ordinary negligence.

30 C.F.R. § 77.1000. Ex. P-19.

The order was terminated after the Amended Ground
Control Plan was updated.

1. Fact of Violation

In order to establish a violation of one of her mandatory safety standards, the Secretary
must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone
Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co.,
11 FMSHRC 2148, 2152 (Nov. 1989)). The Commission has recognized that section 77.1000
requires the operator of a surface mine to establish and follow a ground control plan. RNS Servs.,
Inc., 18 FMSHRC 523 n.1 (Apr. 1996).

The Secretary argues that the Plan permits only two methods of extracting coal refuse:
excavation in successive horizontal lifts with a maximum elevation differential of 12 feet, or
excavation down the face of the existing slope from top to toe. Sec’y Br. at 11. According to the
Secretary, when Preservati was extracting refuse from mid-pile, with un-consolidated material
situated above him, Extra Energy was mining in violation of the Plan and destabilizing the pile.

Arguing a contrary position, Extra Energy maintains that the standard does not apply
because the mine does not have “highwalls,” and the operator was not actually mining, but was, in
fact, in the process of constructing the access road. Resp. Br. at 6, 16-17. Therefore, according to
Extra Energy, it was not violating the Plan.

MSHA Inspector Andrew Sedlock, a surface mine specialist with extensive experience
evaluating and approving ground control plans required by MSHA under section 77.1000,
testified as the Secretary’s expert witness. Tr. 178-181, 207. He has also drafted several dozen
ground control plans for a surface mine operator. Tr. 184-85. Sedlock explained that removing
material from the toe in advance of upper level material reduces the stability of the working face,
making it highly likely that hundreds of tons of material will break loose and slide down onto the
work area, engulfing any miner working beneath the slope. Tr. 212, 219. Furthermore, Sedlock
stated that the operator failed to re-slope the material to a 2H:1V angle (2 horizontal:1 vertical
slope required by the Plan), failed to re-slope the 40' by 40' slip in order to stabilize the area, and
left walls of material higher than the cab heights of the haul truck and excavator. Tr. 221-22. He
determined that removal of material 100 feet down the slope reduced the stability of the pile, and
that the extensive slip at the base demonstrated its instability. Tr. 229-230, 234, 238-240.

The president of Extra Energy, Steve Haynes, testified on behalf of the operator. He
testified that he had observed nothing on the access road that was likely to cause an injury or
fatality, and that there were no highwalls along the access road. Tr. 391, 403-04. Regarding slope
stability, Haynes was unable to identify the natural angle of repose or the meaning of “2H:1V.”

Tr. 405-08. In Haynes’ opinion, Extra Energy did not violate the standard because the Plan
allowed for skipping areas that the operator deemed unfeasible to mine. Tr. 402.

Foreman Chuck Preservati also testified for Extra Energy. At the time of the alleged
violations, Preservati had been the surface foreman at the mine for about eight years. Tr. 422-23.
Preservati testified that Extra Energy was building the access road, rather than mining. Tr. 427.
Furthermore, he stated that the mine had no highwalls, and that the un-sloped material sat at the
natural angle of repose. Tr. 428.

As a preliminary matter, I find that Extra Energy was mining rather than building the
access road because Meadows’ and Billups’ observations of Preservati using the excavator to load
the haul truck with refuse material are augmented by Billups’ inspection notes of March 13, which
report Preservati as having stated that Extra Energy elected to remove material from mid-pile
because there was too much rock in the top to make money. Ex. 18, p. 13.

While neither the Act nor the regulations define the term “highwall,” I need not decide
whether the cited condition constituted a highwall since the plain, unambiguous language of the
standard encompasses “spoil banks,” as well. Clearly, the refuse pile meets two common industry
uses of that term, i.e., the accumulation of overburden, and underground refuse piled outside. The
standard does not, as the operator argues, exempt from stability requirements unexcavated faces of
exposed overburden and coal that are not specifically classified as “highwalls.” The purpose of
the standard is to prevent exposure to unstable unconsolidated material. Therefore, it was
expedient for the inspectors to remove the foreman from the dangerous conditions immediately.

As Sedlock pointed out, if Extra Energy were building the access road, it was still required
to follow the Plan in order to maintain pile stability, by extracting material in successive
horizontal lifts with a maximum elevation of 12 feet between working benches, or excavating
down the face of the existing slope from top to toe. Moreover, Sedlock testified that the walls of
the pile were near vertical in places, in clear violation of the Plan, and that none of the controls
that MSHA requires in a ground control plan for this type of refuse extraction were present.

The plain language of the Plan is intended to ensure pile stability. The instability of the
pile was evidenced by the 40' by 40' slip above the active mining area that broke loose and slid
down. The slip occurred as a result of material being extracted from mid-pile and not re-sloped.
Even if Extra Energy’s mid-pile method of extraction left parts of the pile resting at the angle of
repose, they still would have been resting at a steeper angle than the required 2H:1V slope.

While the Plan allows the operator to skip over horizontal areas when mining, it, nevertheless,
requires removal of material from top to toe. To interpret the Amendment as a grant of authority
to mine in a manner that reduces the stability of the refuse pile, thereby endangering miners
working beneath the area, would frustrate the intent of the Act and Extra Energy’s Ground
Control Plan. I conclude that the refuse pile comes within the purview of the standard and,
therefore, that the Secretary has proven that Extra Energy violated section 77.1000 by removing
refuse in disregard of the requirements of its MSHA-accepted Ground Control Plan.

2. Significant and Substantial 

In Mathies Coal Company, the Commission set forth four criteria that the Secretary must
establish in order to prove that a violation is S&S under National Gypsum, 3 FMSHRC 822 (Apr.
1981): 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. 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of
Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving
Mathies criteria). Evaluation of the third criterion, the reasonable likelihood of injury, should be
made in the context of “continued normal mining operations.” U.S. Steel Mining Co., 6 FMSHRC
1573, 1574 (July 1984). Moreover, resolution of whether a violation is S&S must be based “on
the particular facts surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr.
1998); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987).

The fact of violation has been established. The second element of the Mathies test has
been met because the miner’s work area was situated in the wake of the unstable pile, which
subjected him to the discrete safety hazard of being engulfed by unconsolidated refuse material
being extracted from above. The focus of the S&S analysis, then, is the third and fourth Mathies
criteria, i.e., whether the hazard was reasonably likely to result in an injury, and whether the injury
would be serious.

The Commission has found that it is unsafe to push refuse over the edge of a pile without
compacting it, properly grading the slope, or adhering to an engineering plan. See Cyprus
Emerald Res. Corp., 20 FMSHRC 790, 812-13 (Aug. 1998) (affirming the judge's determination
that a large slip in a refuse pile occurred as a result of the unsafe manner in which the pile was
constructed). In the instant case, the use of an unsafe mining method contributed to the hazard of
tons of material breaking loose, sliding downward, and engulfing, suffocating, and crushing the
miner below. This condition resulted in a high likelihood that the affected miner working beneath
the area of extraction would be seriously injured or killed. Therefore, I conclude that the violation
was S&S.

3. Unwarrantable Failure   

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence.
Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is characterized
by such conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious
lack of reasonable care." Id. at 2001-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194
(Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136. The Commission has recognized the
relevance of several factors in determining whether conduct is "aggravated" in the context of
unwarrantable failure, such as the extensiveness of the violation, the length of time that the
violation has existed, the operator's efforts in eliminating the violative condition, and whether the
operator has been put on notice that greater efforts are necessary for compliance. See
Consolidation Coal Co., 22 FMSHRC 328, 331 (Mar. 2000); Mullins & Sons Coal Co., 16
FMSHRC 192, 195 (Feb. 1994). The Commission has also considered whether the violative
condition is obvious or poses a high degree of danger. Windsor Coal Co., 21 FMSHRC 997, 1000
(Sept. 1999) (citing BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Warren
Steen Construction, Inc., 14 FMSHRC 1125, 1129 (July 1992); Quinland Coals, Inc., 10
FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984)). Each
case must be examined on its own facts to determine whether an actor's conduct is aggravated, or
whether mitigating circumstances exist. Eagle Energy, Inc., 23 FMSHRC 829, 834 (Aug. 2001)
(citing Consol, 22 FMSHRC at 353).

I do not find that there were any mitigating factors. The overwhelming weight of the
evidence shows that the instability of the refuse pile was obvious, as evidenced by the near-vertical angle of the slope in places and the extensive slip. Although Preservati testified that he
did not see the slip before Billups showed it to him, his testimony tends to lack credibility
considering that he also stated that he did not consider the slip to be a hazard. Tr. 447. I find that
the slip was present, at least on March 13, when Preservati conducted his pre-shift examination.
The operator should have been aware of the danger that the un-sloped wall of unconsolidated
material created, and taken steps to prevent this very serious hazard. Therefore, I find that the
Secretary has met her burden of establishing aggravated conduct, and that the violation was a
result of Extra Energy's unwarrantable failure to comply with the standard.

B. Citation No. 7207737

Inspector Billups issued 104(d)(1) Citation No. 7207737 alleging a “significant and
substantial” violation of section 77.1713(a) that was “highly likely” to cause an injury that could
reasonably be expected to be “fatal,” and was caused by Extra Energy’s “high negligence” and
“unwarrantable failure” to comply with the mandatory safety standard. The “Condition or
Practice” is described as follows:

The certified person designated by the operator to conduct safety
examinations for hazardous conditions at the mine failed to observe
that the work being performed was not in compliance with the
approved ground control plan dated February 9, 2008. Instead of
starting at the top and excavating the material in 12 foot lifts, the
operator started removing the material app. 100 ft. below the top.
The road cut under the material being removed reduced the stability
of the working face and also violated the plan by making the material
being removed higher than the operator’s cab. An area 40 ft. x 40 ft.
had broken lose [sic] from the face and was easily visible to the most
casual observer and was not reported, recorded, or corrected by the
operator before duties were assigned in this area. This is aggravated
conduct and constitutes more than ordinary negligence.

Ex. P-20.

The citation was terminated after the hazards were recorded, and the hazardous area was barricaded.

1. Fact of Violation

Preservati testified that he conducted pre-shift examinations each morning from March 6 to
March 13, and that he did not record any hazards in the examination book. Tr. 435-440. He further
stated that he did not see the slip at the time of his pre-shift examination on March 13, despite the fact
that the inspectors observed it later that morning.

The Commission has recognized that section 77.1713(a) embodies the requirements of
examining the workplace for hazardous conditions, noting the hazards, and correcting them. Peabody
Coal Co., 1 FMSHRC 1494, 1495-96 (Oct. 1979). Based on my finding that the slip existed at least
during Preservati’s pre-shift examination, he failed to note for correction the hazards of mid-pile
extraction, which created excessively steep slopes and rendered the wall above the work area higher
than the height of the truck and excavator cabs. These are obvious conditions which Preservati, as
foreman, should have recognized as very hazardous and inconsistent with the requirements of the
Plan. Likewise, Preservati should have noted the 40' by 40' slip. Based on the obviousness of the
dangerous mining technique, the excessively steep slopes, and the extensiveness of the slip, I
conclude that the Secretary has proven that Extra Energy violated section 77.1713(a) by failing to
conduct pre-shift examinations that would have reported the hazards and corrected them.

2. Significant and Substantial

The fact of the violation has been established. Preservati’s failure to record the hazard
of mining from mid-pile, the obvious slip, and the excessive height of material above the work area
foreclosed immediate attention to the instability of the pile and compliance with the Ground Control
Plan. Therefore, it was highly likely that were mining to continue, serious injury or death would
result to miners working beneath the slope from tons of sliding material. Therefore, I conclude that
the violation was S&S.

3. Unwarrantable Failure

Extra Energy’s failure to note and correct conditions so obviously out of compliance

with the safety measures required by its Ground Control Plan, with very serious consequences,
constitutes aggravated conduct. If the steep condition of the pile, caused by Extra Energy’s election
to excavate from mid-pile, did not put the operator on notice that its mining method was hazardous,
the slip, alone, was evidence of the pile’s instability. Furthermore, based on the justification that
Preservati gave Billups for deviating from the Plan, the operator’s behavior was deliberate. What
could be seen as a mitigating factor, then, that the slip may have existed for only a short period of
time, is outweighed by Extra Energy’s deliberate disregard of its Plan. While the Secretary has not
established how long the slip existed, the evidence makes clear that Extra Energy had been engaging
in mid-pile mining prior to the date of the inspection. Therefore, I find that Extra Energy’s failure
to conduct adequate pre-shift examinations was a result of its unwarrantable failure to comply with
the standard.

IV. Penalties

While the Secretary has proposed a total civil penalty of $34,600.00, the judge must
independently determine the appropriate assessment by proper consideration of the six penalty criteria
set forth in section 110(i) of the Act, 20 U.S.C. § 820(j). See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 763 F. 2d 1147 (7th Cir. 1984).

Applying the penalty criteria, I find that Extra Energy is a small operator, with no
history of similar prior violations and an overall record that is not an aggravating factor in assessing
appropriate penalties. As stipulated, the proposed total civil penalty will not affect Extra Energy’s
ability to continue in business. Stip. 6. I find that Extra Energy demonstrated good faith in achieving
rapid compliance after notice of Order No. 7207738 and Citation No. 7207737.

The remaining criteria involve consideration of the gravity of the violations and Extra
Energy’s negligence in committing them. These factors have been discussed fully, respecting each
violation. Therefore, considering my findings as to the six penalty criteria, the penalties are set forth
below.

A. Order No. 7207738

It has been established that this S&S violation was highly likely to cause an injury that could
reasonably be expected to be fatal, that one person was affected, and that it was timely abated. As
to negligence, Extra Energy knew that it was required to excavate the refuse pile according to the
specifications of its Ground Control Plan. The steepness of the slopes and the obvious, extensive
slip were evidence of the hazard created by deviating from the Plan. Thus, I find that Extra Energy
was highly negligent and engaged in aggravated conduct that constituted an unwarrantable failure to
comply with the standard. Applying the civil penalty criteria, I find that a penalty of $17,300.00, as
proposed by the Secretary, is appropriate.

B. Citation No. 7207737

It has been established that this S&S violation was highly likely to cause an injury that
could reasonably be expected to be fatal, that one person was affected, and that it was timely abated.
I find that Extra Energy’s failure to note and correct the hazardous conditions created by its deliberate
deviation from its Ground Control Plan was due to high negligence and aggravated conduct that
constituted an unwarrantable failure to comply with the standard. Applying the civil penalty criteria,
I find that a penalty of $17,300.00, as proposed by the Secretary, is appropriate.

ORDER

Accordingly, Order No. 7207738 and Citation No. 7207737 are AFFIRMED, and Extra
Energy is ORDERED TO PAY a civil penalty of $34,600.00 within 30 days of the date of this
decision.

/s/ Jacqueline R. Bulluck

Jacqueline R. Bulluck

Administrative Law Judge

Distribution:

Patrick M. Dalin, Esq., Office of the Solicitor, U.S. Dept. of Labor, The Curtis Center, 170 South
Independence Mall West, Suite 630 E, Philadelphia, PA 19106

James F. Bowman, Bowman Industries, P.O. Box 99, Midway, WV 25878

/ss