Secretary of Labor v. Justice Energy Company, Inc.

Plain-English summary

MSHA issued nine citations at Justice Energy's Red Fox surface mine for a muddy haul road, an inadequate berm, unsafe conditions on a bus used as a mantrip, and defects and oil accumulations on two highwall drills. Judge Jacqueline R. Bulluck affirmed seven litigated S&S citations, including high-negligence findings for serious drill defects and fire hazards. She assessed $198,592 for those citations, reducing two drill-equipment penalties to $35,000 each because the Secretary did not prove that visible pin slack was inherently hazardous. She also approved a settlement modifying two bus citations to non-S&S, unlikely, and two persons affected, with penalties totaling $25,189. The total penalty was $223,781.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 77.404(a), 77.1104, 77.1605(k), and 77.1608(a)
• Outcome: Seven citations were affirmed, two were modified by settlement, and total penalties of $223,781 were assessed.
• Key point: Extensive known equipment defects and combustible oil accumulations support substantial penalties, but each alleged component hazard still requires proof.

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:
202-434-9958 / FAX: 202-434-9949

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

JUSTICE
ENERGY COMPANY,                                INCORPORATED,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. WEVA 2012-940

A.C.
No. 46-06578-282610

Mine:
Red Fox Surface Mine

DECISION

Appearances:               Emily
O. Roberts, Esq., U.S. Dept. of Labor, Office of the Solicitor, Nashville, Tennessee,
for Petitioner;

James
F. Bowman, Justice Energy Company, Incorporated, 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 his Mine Safety and Health
Administration (“MSHA”), against Justice Energy Company, Incorporated
(“Justice”), pursuant to section 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815(d). The Secretary seeks a total civil penalty in
the amount of $255,992.00 for nine alleged violations of his mandatory safety
standards.[1]

A
hearing was held in South Charleston, West Virginia. The issues before me are:   
(1) whether Respondent violated 30 C.F.R. §§ 77.1608(a), 77.1605(k), 77.404(a),
and 77.1104;   (2) whether the violations were significant and substantial,
where alleged; and (3) whether the violations were a result of Justice’s high
or moderate negligence, as alleged. The parties’ Post-hearing Briefs are of
record.

For
the reasons set forth below, I AFFIRM the citations, as issued, assess
penalties against Respondent, and approve the parties’ Partial Settlement.

I.
Stipulations

The parties stipulated as follows:

1. Justice Energy, Incorporated, owns
   and operates Red Fox Surface Mine, I.D. No. 46-06578. Red Fox Surface Mine is
   located in McDowell County, West Virginia;

2. Red Fox Surface Mine is a “mine” as
   that term is defined in Section 3(h) of the Mine Act, 30 U.S.C. § 803;

3. Justice Energy, Incorporated, is
   subject to the Federal Mine Safety and Health Act of 1977;

4. Justice Energy, Incorporated, is
   subject to the jurisdiction of the Federal Mine Safety and Health Review
   Commission, and the presiding Administrative Law Judge has the authority to
   hear this case and issue a decision;

5. At all times relevant to this
   proceeding, Red Fox Surface Mine had an effect upon interstate commerce within
   the meaning and scope of Section 4 of the Mine Act, 30 U.S.C.     § 803;

6. Red Fox Surface Mine is large,
   producing 751,359 tons of coal in 2011;

7. Copies of the citations in contest
   are authentic and were served on the Respondent by an Authorized Representative
   of the Secretary employed by the Mine Safety and Health Administration;

8. The Respondent timely contested these
   violations;

9. MSHA’s Proposed Assessment Data Sheet
   and “Exhibit A-Docket Number WEVA 2012-940" accurately set forth: (a) the
   number of assessed penalty violations charged to the Respondent for the period
   stated; and (b) the number of inspection days per month for the period stated;
   and

10. The penalties proposed will not affect
    the Respondent’s ability to continue in business.

Ex.
P-1.

II.
Factual Background

Justice
Energy owns and operates the Red Fox surface mine (“Red Fox”), a highwall
surface coal mining operation, located in McDowell County, West Virginia. Stip.

1. On the morning of January 11, 2012, MSHA Inspector Jeffrey Presley, prior to
   conducting a quarterly E-01 inspection of Red Fox, participated in a safety
   meeting held by mine managers at the mine portal. Tr. 31-33. Presley was
   initially accompanied on the inspection by Justice’s dozer operator, Todd Neely,
   and later joined by safety manager, Gilbert Witt. Tr. 34, 290, 297.

As
Presley drove away from the mine portal, he observed rock trucks slipping on a
roadway covered with mud and standing water. Tr. 38-39. Therefore, he issued a
citation for the operator’s failure to keep the haul road reasonably free of
debris, posing a collision hazard.   Tr. 39; Ex. P-3. Also, having observed
that a roadside berm was constructed of mud and failed to reach the requisite
mid-axle height of the trucks, Presley issued a citation for Justice’s failure
to maintain an adequate berm. Tr. 48-51; Ex. P-4.

On
the second morning of Presley’s inspection, January 13, he observed a school bus,
being used by Justice as a mantrip, with motor oil accumulations on the engine,
an inoperable fire extinguisher, and four inoperable rear lights; he issued
three citations for these conditions.    Tr. 59, 65-66, 71-72; Exs. P-5, P-6,
P-7.

Presley
also inspected highwall drill numbers 834 and 841. Tr. 76-77. On the 841 highwall
drill, he observed a half inch of slack in the mast jack pin, and extensive oil
leaks covering the engine, hydraulics, and electrical components.[2]
Tr. 77-78, 89. Consequently, he issued a citation for the operator’s failure to
keep the drill in safe operating condition, and another for allowing accumulations
of hydraulic oil where they created a fire hazard. Tr. 77-78, 96; Exs. P-8, P-9.
While inspecting the 834 highwall drill, Presley cited Justice for failure to
maintain the drill in safe operating condition, identifying nine defective
conditions; he issued another citation for allowing accumulations of hydraulic
and motor oil where they created a fire hazard. Tr. 100, 117; Exs. P-10, P-11.

III.
Findings of Fact and Conclusions of Law

A.
Citation 8144189

1. Fact of Violation

Presley issued
104(a) Citation No. 8144189, alleging a “significant and substantial” violation
of section 77.1608(a) that was “reasonably likely” to cause an injury that
could reasonably be expected to result in “lost workdays or restricted duty,”
and was caused by Justice’s “moderate” negligence.[3]
The “Condition or Practice” is described as follows:

When the haul roads were traveled they
were covered in debris in the form of a large amount of mud. The roads were
very slick due to the condition and pick-up trucks and large rock trucks were
observed sliding and spinning tires for traction due to loss of traction. These
are high traffic roads traveled all shift and these conditions can result in a
wreck.[4]

Ex.
P-3. The citation was terminated after the haul road was cleared of debris.

In
order to establish a violation of one of his mandatory safety standards, the
Secretary must prove that the violation occurred “by a preponderance of
credible evidence.” Keystone Coal Mining Corp., 17 FMSHRC 1819, 1838
(Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152
(Nov. 1989)).

Presley
had worked for MSHA since 2007, and had inspected Red Fox over 50 times prior
to 2012. Tr. 23-24, 27. He described the haul road as being covered with mud
several inches deep and standing water forming puddles 30 by 50 feet, which
caused rock trucks to lose traction. Tr. 38-39. In his opinion, given the heavy
truck traffic, vehicles losing traction would collide, resulting in drivers
sustaining broken bones, paralysis, or even death. Tr. 42. Presley concluded
that Justice was moderately negligent because the muddy conditions had been
discussed that morning in the safety meeting but, from his observation, no graders
were being operated to clear the roadway. Tr. 33, 45.

Safety
manager, Gilbert Witt, had worked at Red Fox since 2008. Tr. 282. Contrary to
Presley’s testimony, Witt testified that, while accompanying Presley on his
inspection, he observed graders working on the haul road, and that he did not
see any conditions presenting a challenge to maneuverability of the trucks. Tr.
296-97. Witt also testified that he took photographs of the roadway, and he
identified one photograph, showing a roadway free of mud and debris, as
depicting the conditions observed by the inspector. Tr. 291; Ex. R-14. Dozer
operator, Todd Neely, testified similarly, that the roadway was clear, and also
attested to the photograph being a fair depiction of it at the time of
inspection. Tr. 467-74.

Mine
superintendent, Gregory Browning, had been employed at Red Fox for three years.
Tr. 552-53. He explained that the mine’s normal practice is to run a 16G motor
grader, unless it is out of service, in which case a rubber-tired dozer is used
to maintain the roads; he testified that both were in use on the day of
inspection. Tr. 557, 560. Nevertheless, Browning conceded that some mud was
present a quarter of the way out of the pit; he described it, however, as only
a light, tacky mud, which he would not consider to be debris. Tr. 554, 562. Michael
Dale, 994 loader operator, essentially corroborated Browning’s testimony, explaining
that, using the main loader, it only took him approximately 10 to 15 minutes to
scoop the mud off the road. Tr. 495.

The
photograph upon which Justice relies to support its contention that only an
inconsequential amount of mud had accumulated on the roadway depicts pristine
conditions that do not comport with its witnesses’ cumulative testimony. Ex.
R-14. Witt initially testified that he had taken the collection of evidentiary
photographs contemporaneous with Presley’s inspection. Tr. 291, 301-02, 350-51,
368, 391-92, 403, 405. The Secretary’s challenge to their authenticity,
however, called into question the timing of the snapshots and who, in fact, had
taken them. Justice’s safety director, Raymond Simpson, substantiated the
Secretary’s contention that Witt was not the sole photographer, by pointing out
that the snapshots were labeled either “Contemporaneous by Gilbert Witt,” or “Non-contemporaneous,
illustrative, Mark Huffman.” Tr. 393, 397; Exs. P-15, P-16, R-14, R-15, R-16,
R-17, R-18, R-19, R-20, R-21,   R-22, R-23, R-24, R-25, R-26, R-27, R-28, R-29,
R-30, R-31, R-32, R-33, R-34, R-35, R-36. Furthermore, neither Witt nor Simpson
was able to identify who had labeled the photographs. Tr. 397, 460. Indeed, Witt
acknowledged that two photographs of the 834 highwall drill attributed to
Huffman, depict warm weather conditions, and he reluctantly admitted that he
had no knowledge of when they had been taken. Tr. 454-57; Exs. R-33, R-34. Finally,
there is no evidence that establishes any of the photographs as an accurate
depiction of the roadway on the date and time that Presley cited the alleged
slippery conditions, nor are they authenticated as accurate depictions of other
conditions cited during the inspection. Consequently, I find Justice’s
photographic evidence of no probative value in establishing any of the conditions
encountered by the inspector and, in so finding, I also find Witt’s testimony
of his observations unsupported, and his assertion that graders were leveling
the roadway at the time of inspection, largely unworthy of credence.

Presley, on the other hand, consistently
testified that several of the alleged contemporaneous photographs were not illustrative
of the conditions which he observed, and I fully credit his testimony that rock
trucks were slipping on the muddy, debris-covered roadway, where no grader was
operating. Tr. 578-79, 624. I also find Witt’s, Browning’s, and Neely’s depiction
of a relatively mud-and-debris-free roadway completely fabricated, considering
their acknowledgement that they had attended the morning safety meeting
addressing the hazardous conditions resulting from the overnight rainfall. Tr.
286, 467-68, 554-62. Therefore, I find that Justice violated section 77.1608(a)
by failing to maintain the haul road reasonably free of mud and standing water.

2. Significant and Substantial

To prove that a
violation is “significant and substantial” (“S&S”) under National Gypsum,
3 FMSHRC 822 (Apr. 1981), the Secretary must establish the four criteria set
forth by the Commission in Mathies Coal Company, 6 FMSHRC 1 (Jan. 1984).
The Secretary bears the burden of proving: 1) the underlying violation of a
mandatory safety standard; 2) a discrete safety hazard - - that is, a measure
of danger to safety - - contributed to by the violation; 3) a reasonable
likelihood that the hazard contributed to will result in an injury; and 4) a
reasonable likelihood that the injury in question will be of a reasonably
serious nature. Mathies, 6 FMSHRC 1, 3-4; 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 Secretary must prove that there is a
reasonable likelihood that the hazard contributed to by the violation will
cause an injury, not a reasonable likelihood that the violation, itself, will
cause injury. Musser Eng’g, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010).

The
fact of the violation has been established. The second criterion of the Mathies
test has been met, in that rock trucks losing traction and slipping due to
the muddy roadway surface were likely to lose control and collide with other
vehicles. Clearly, collisions between multi-ton trucks are reasonably likely to
result in serious musculoskeletal injuries such as strains, sprains and broken
bones, head trauma, paralysis, and even death. Therefore, I find that the
violation was S&S.

3. Negligence

The record
establishes that Justice was aware of the muddy road conditions, as evidenced
by the morning safety meeting held to address the matter, attended by Browning,
Witt, and Neely. However, despite permitting commencement of mining operations prior
to clearing the roadway, Justice’s effort to alert its miners to the hazard
mitigates its negligence. Therefore, I conclude that Justice was moderately
negligent in violating the standard.

B.
Citation 8144190

1.      Fact of
Violation

Inspector
Presley issued 104(a) Citation No. 8144190, alleging a “significant and
substantial” violation of section 77.1605(k) that was “reasonably likely” to
cause an injury that could reasonably be expected to be “fatal,” and was caused
by Justice’s “moderate” negligence.[5]
The “Condition or Practice” is described as follows:

When checked the elevated haul road at
the Cat 994 pit has berms that are not adequate enough to prevent an accident. This
pit is located over the active coal pit and large Cat 789 and 793 rock trucks
haul from this location and the berms were not built up to the mid axle of
these trucks. The partial berms that were there were constructed of muddy
material and not substantial enough to prevent the large heavy trucks from
running or sliding through the berms and falling 40 plus feet below. The area
at this location was muddy and trucks were observed slipping and sliding. (See
Citation No. 8144189).[6]

Ex.
P-4. The citation was terminated after the berm was built up using overburden.

Presley
explained that to provide protection against overtravel and overturning, the
berm was required to extend higher than mid-axle height of the trucks or, if at
mid-axle height, be constructed of a substantial material.[7]
Tr. 48-49. He testified that he positioned himself where he could see the truck
axles passing the berm, and observed that the majority of the berm was
significantly lower than the trucks’ mid-axles, with some spots deficient by as
much as two feet. Tr. 50-53, 168-70. Presley was able to see that mud had
sloughed off the berm to the coal pit below. Tr. 51. He opined that given the
slick roadway conditions, a truck could overtravel through the berm and
overturn, resulting in a 40 to 50 foot plunge down to the pit. Tr. 54-55.      

Witt testified that the berm was approximately
eight to nine feet tall and, at first, averred that it was constructed of rock from
the pit. Tr. 298-99. However, when viewing Justice’s photographs, purportedly
of the original berm and the berm that was constructed to abate the violation,
Witt identified the original berm as being composed of smaller, finer, and more
consolidated material than the one constructed later. Tr. 307-08; Exs. R-15,
R-16. Witt also identified a pile of mud atop the berm which, he speculated, could
have been dumped on the berm by the front-end loader; however, he added that this
was not a normal practice. Tr. 309.   

Neely testified that he had built the
original berm the day before the inspection to a height of 72 to 74 inches. Tr.
477-79. He admitted that the combination of the previous night’s rain and work
in the pit had caused some of the berm to “slip off.” Tr. 483. Ronald Starcher,
loader operator, testified that on the morning of January 11, he used a front-end
loader to repair the berm. Tr. 486-88. According to Starcher, the berm had “slagged
off” in a couple of spots.    Tr. 488. Viewing Justice’s photographs of the
berm, he admitted that the area that Witt had identified as the original berm
was primarily composed of dirt with some rock, and that the rain would have been
able to wash it away. Tr. 489-91. Loader operator, Michael Dale, explained that
he was tasked with building the berm that terminated the citation, and he also
admitted that the original berm had eroded due to rainfall and mining in the
pit. Tr. 496-500. Furthermore, Dale testified that the original berm was constructed
of rock with a little bit of dirt; however, after examining Justice’s
photograph, he stated that it looked like “a lot more dirt.” Tr. 501-02; Ex.
R-15.

I
find that the original berm was constructed primarily of dirt rather than rock,
and I credit the Secretary’s contention that it did not rise to mid-axle height
of the operating haul trucks. Even Justice’s own photographs, although of
dubious origin, show the berm to be constructed of consolidated material,
including substantial amounts of dirt and mud. Obviously, inherent in the standard
is a requirement that berms or guards be constructed of such material, and in
such fashion, as to constitute an effective barrier. A berm primarily
constructed of dirt, which does not rise, at least, to mid-axle height, is
insufficient to stop multi-ton rock trucks from overtraveling into the pit and
overturning. Therefore, I find that the Secretary has proven that Justice
violated section 77.1605(k).        

2. Significant and Substantial

The first two Mathies
criteria have been met, in that the violation has been established, and it is
apparent that the construction material and height insufficiency of the berm
contributed to the danger of rock trucks overtraveling and overturning. Here,
again, the S&S analysis is dependent upon 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. Presley testified credibly that a truck
operator was reasonably likely to be killed were his truck to slip on the
steep, muddy roadway, overtravel through the berm, and likely overturn as a
result of plunging 40 to 50 feet down to the pit. Tr. 54-55. Therefore, I find
that the violation was S&S.

3.
Negligence

The Secretary contends that Justice was
moderately negligent in its insubstantial

construction
of the berm and failure to timely repair it after it had deteriorated, before permitting
miners to haul on the roadway. Sec’y Br. at 8. On the other hand, Justice
contends that Starcher timely repaired the berm. Resp’t Br. at 18. Crediting
the evidence that Starcher had repaired the berm on the morning of inspection,
the evidence is also clear that Justice’s remediation was short-lived or entirely
missed its mark in the first place. Therefore, I find that Justice was
moderately negligent in violating the standard.

C.
Citation No. 8144193

1. Fact of
Violation

Presley issued
104(a) Citation No. 8144193, alleging a “significant and substantial” violation
of section 77.404(a) that was “reasonably likely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was
caused by Justice’s “moderate” negligence.[8]
The “Condition or Practice” is described as follows:

The company’s bus used as a mantrip is
not being maintained in safe operating condition. When checked none of the
brake lights work and none of the backup lights work. This machine is operated
in low light, foggy, and rainy conditions on high traffic haul roads in off
road terrain.

Ex.
P-7. The citation was terminated when the back-up lights and brake lights were
repaired.

The
Commission has found that section 77.404(a) requires an operator to maintain
machinery and equipment in safe operating condition, and to remove unsafe
equipment from service. Peabody Coal Co., 1 FMSHRC 1494, 1495 (Oct.
1979).

The
Secretary argues that operating the bus with non-functional back-up and brake lights
was unsafe, because other vehicles or pedestrians traveling on mine roads would
have no visual warning of the bus stopping or reversing, in order to avoid
collision. Sec’y Br. at 9-10. Justice makes counter arguments that the bus was
in safe operating condition, that it was examined prior to commencement of the
shift and found to have no defects, and that it could be operated safely even with
inoperative rear lights, since head lights, strobe lights, a back-up alarm,
reflective tape, and a CB radio alerted miners to the bus’ mode of operation. Resp’t
Br. at 18-19.

Presley
testified that none of the bus’ back-up or brake lights was working. Tr. 71-72.
He opined that while the bus’ headlights and strobe light were operational, a
pedestrian or vehicle following the bus could lose sight of its rear,
especially in low-light or foggy conditions, likely leading to a collision. Tr.
71-74. In the case of a collision, miners inside the bus could suffer sprains,
broken bones, or whiplash, and a miner run over by the bus operating in reverse
could be killed. Tr. 74-75. Presley testified that the bus was being operated in
this hazardous condition twice each shift, and that pickup trucks and large
mechanic trucks were operating on the same roads, at the same time that the bus
was transporting miners to different work areas.  Tr. 73, 219-20.

Witt initially testified to being very
confident that the rear lights were working when the shift began, because the
pre-operational examiner had not reported them as defective.  Tr. 332-33. However,
he later admitted that the pre-operational examination was inadequate,
acknowledging that only one miner had been involved, while two are needed to
check brake lights, and that the lights were not working when Presley inspected
the bus. Tr. 346, 432. John Spencer, the bus driver but not the pre-operational
examiner, testified that on the morning of January 13, prior to issuance of the
citation, the bus had become stuck in a mud hole, which he offered as the cause
of the lights failing; he admitted, however, that he had not checked the lights
after that incident or prior to beginning his shift. Tr. 540-46. Spencer acknowledged
encountering coal trucks, service trucks, and pickup trucks while running his
route. Tr. 542-43. Browning attested to the bus using the same haul roads as
tractor-trailer coal trucks, pickup, and mechanic trucks. Tr. 563-64.

While
there is no evidence establishing that the bus’ back-up lights were inoperative
when the shift began, the unlikelihood of both lights failing simultaneously
casts a shadow upon the thoroughness of the pre-operational examination,
especially considering that the examination of the brake lights was shown to be
inadequate - - if a check of the bus’ rear lights was conducted at all. Operating
the bus without functional rear lights, in close proximity to other multi-ton
trucks and pedestrians, was highly unsafe and likely to result in vehicular
collisions or pedestrians being struck. Therefore, I find that Justice violated
section 77.404(a).

2. Significant and Substantial

The
fact of the violation has been established. The second Mathies criterion
has been satisfied, i.e., inoperative brake and back-up lights contributed to
a collision hazard involving trucks or pedestrians. In analyzing the third and
fourth Mathies criteria, I find that a collision between the bus and a
mine truck would be reasonably likely to cause miners to suffer musculoskeletal
injuries such as strains, sprains, and fractures and, if the bus were to strike
a miner on foot, severe crush injuries or even death. Therefore, I find that
the violation was S&S.

3. Negligence

Presley
noted the unlikelihood of all rear lights failing at the same time, and concluded
that the defective condition must have existed for quite some time and should
have been discovered during the pre-operational examination. Tr. 76. Justice’s
argument, that an operator should be afforded a fair opportunity to correct reported
pre-operational hazards, need not be addressed here, since it has been
established that the bus’ rear lights were not reported as defective in the
first place. See Resp’t Br. at 8. Because, at the very least, Justice failed to
conduct a thorough pre-operational exam of the bus’ rear lights, and also
considering that the Secretary failed to establish the duration of their
inoperative state, I find that Justice was moderately negligent in violating
the standard.

D.
Citation No. 8144194

1. Fact of Violation 

Presley issued 104(a) Citation No.
8144194, alleging a “significant and substantial”

violation
of section 77.404(a) that was “reasonably likely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was
caused by Justice’s “high” negligence. The “Condition or Practice” is described
as follows:      

The company’s number 841 high wall drill
is not being maintained in safe operating condition. When checked the operator
side mast jack has almost ½" of slack near the pin on the barrel end and
there are numerous oil leaks. These oil leaks are very excessive and can cause
a function of the machine to malfunction or total loss of control. The oil
leaks also cause and contribute to citation number 8144195.

These oil leaks were very obvious and
listed in the pre-operational check list for this equipment. It’s obvious the
equipment operator has done a good inspection but the operator failed to fix
the conditions or remove the machine from service. These conditions have been
cited numerous times in the past and violations issued today are placing
management on notice of high enforcement action.

Ex.
P-8. The citation indicates that it was terminated by Justice’s repair or
replacement of the jack, and repair of the hydraulic hoses on the 841 highwall
drill.

Arguing that excessive slack in the mast
jack pin and leaking hydraulic hoses constituted defects affecting safety, the
Secretary contends that since the drill is manufactured to allow for only an
infinitesimal amount of slack in the pins, “no visible slack is safe.” Sec’y
Br. at 12-13. Justice seems to be arguing that Presley could not determine any
amount of slack without taking a measurement. Even if there were visible slack
in the pin, Justice argues, Presley’s opinion that any visible slack is
prohibited, without reference to the manufacturer’s specifications for the
drill, is insufficient evidence for the Secretary to prove the violation. Resp’t
Br. at 20-21. 

Presley testified to two problems with
the 841 highwall drill: visible slack in the pin on the barrel end of the mast
jack, and numerous oil leaks. Tr. 78. He explained that the highwall drill mast
is approximately thirty feet tall and supports a twenty-foot drill steel.[9]
Tr. 87. The mast is propped up by jacks which hinge to the bottom of the drill
and provide support as it vibrates, changes heights, and cuts into the
highwall. Tr. 78-79, 84-85. The jacks are secured to the mast by pins, which,
according to Presley, are manufactured to fit snugly between the mast and the
jack, without any visible slack. Tr. 80-85. However, he testified, when the
operator raised and lowered the mast, he could see about a half inch of slack in
the pin. Tr. 78-79, 230. He explained that a pin with any visible slack would
be unable to effectively brace the mast against the pressure exerted by the
continuously vibrating drill, and if the pin or the jack were to fail, the mast
could fall and strike the operator or a bystander, resulting in broken bones and/or
sprains. Tr. 80-81, 87, 101-02. On cross-examination, Presley stated that in
determining that the drill was unsafe to operate, he saw no need to consult the
manufacturer’s specifications, because ¼ or ½ inch of slack is clearly out of compliance;
according to him, the specifications allow, at most, two or three thousandths
of an inch of slack. Tr. 231-33.  

Presley described the oil accumulated on
the drill as “an area at least the size of this booth (the witness stand), the
court reporter’s and your (Judge’s) bench, plum covered in hydraulic oil.” Tr. 94-96.
By his account, while he could identify the location of one leak, the drill was
covered so extensively in hydraulic oil that he could not determine the other
sources, stating that “it’s like looking in a spider web of hydraulics and
they’re all covered with oil.”   Tr. 89-90. In his opinion, the leaks were
likely to lead to loss of hydraulic pressure, which could result in the machine
suddenly stopping or jerking sideways, causing the operator to be thrown about
the cab. Tr. 90, 92-93. Additionally, if a hydraulic hose were to burst, it
could strike a miner or spray him with hot oil. Tr. 90-91.

Witt
testified that there was no slack in the mast jack pin but, if there were, the
pin would have displayed obvious signs of wear. Tr. 348-52; Exs. R-22, R-23. Rodney
Cox, the 841 drill operator, testified that he did not check for slack in the
mast jack pin as part of his pre-operational examination, but that he had noted
the oil leaks in his report, although he felt that the drill was safe to
operate. Tr. 506-07, 515.

As has previously been discussed,
Justice’s photographs are of no probative value in determining the condition of
the drill at the time of inspection. I credit Presley’s testimony that he
observed slack in the pin. Where the Secretary goes out on an unsupported limb,
however, is by contending that no visible slack in the mast jack pin is
permissible for safe operation of the drill. The Secretary provided no evidence
of the manufacturer’s specifications, which may be dispositive in determining whether
operating the drill with ½ inch of slack is unsafe. As pointed out by the judge
in a similar fact situation involving the same operator, the Secretary cannot
carry his burden by simply asserting that any visible slack is unsafe
operationally, absent objective evidence of manufacturer or industry
specifications. Justice Energy Company, 36-37 FMSHRC __, slip op. at
18-23, No. WEVA 2012-375 (January 20, 2015) (ALJ). Consequently, I find that
the Secretary has not met his burden of proving that the visible slack in the
mast jack pin constituted an unsafe operating condition.

Presley’s observation of hydraulic oil
leaks on the drill, however, was corroborated by Justice’s own witness, and Cox’s
reporting of the condition lends credence to the inspector’s contention that it
was extensive. A ruptured hydraulic hose would likely result in broken bones
from a miner being struck or thrown about the cab, or burns resulting from the
miner’s contact with hot oil. Consequently, I find that the Secretary has proven
that Justice operated the 841 highwall drill in unsafe condition and,
therefore, violated section 77.404(a).

2.      Significant and
Substantial

The first two Mathies
criteria have been met, in that the violation has been established, and
hydraulic oil leaks contributed to the hazards of sudden mast movement and hose
failure. The third and fourth Mathies criteria, the reasonable
likelihood of injury and its seriousness, have also been met. A miner being
thrown about the operator’s compartment would be reasonably likely to suffer
musculoskeletal injuries such as strains, sprains, or fractures, and a ruptured
hose would likely result in burns or broken bones. Therefore, I find that the
violation was S&S.

3.
Negligence

The
Secretary contends that Justice should have been aware of the unsafe condition
of the highwall drill, given the obviousness and extensiveness of the hydraulic
oil leaks, and the operator’s extensive history of section 77.404(a) violations.
Sec’y Br. at 14. On the other hand, Justice contends that it was unaware of the
condition, since Cox proceeded to operate the drill despite having reported the
oil leaks, and the pre-operational report was not retrieved by management until
after the citation had been issued. Resp’t Br. at 10-12.

Presley testified that the oil leaks
were obvious, considering that they were readily apparent as soon as he stepped
out of his vehicle. Tr. 94. He also noted Justice’s history of section
77.404(a) violations at Red Fox, and that he has discussed these issues with
management officials during previous inspections. Tr. 95. Cox’s pre-operational
report of oil leaks totally discredits Superintendent Browning’s testimony that
the leaks were not reported and that management was not aware of the condition.
Tr. 567-68. I find that the hydraulic oil leaks were extensive and obvious and,
given the history of discussions between Presley and Red Fox’s management about
recurrent violations of a similar nature, that Justice should have been aware
of the need to maintain the 841 highwall drill in safe operating condition,
free of this defect. Therefore, I find that Justice was highly negligent in
violating the standard.

E.
Citation 8144195

1. Fact of Violation

Presley issued 104(a)
Citation No. 8144195 alleging a “significant and substantial” violation of
section 77.1104 that was “reasonably likely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was
caused by Justice’s “high” negligence.[10]
The “Condition or Practice” is described as follows:

The company’s number 841 high wall drill
is not being maintained free of accumulations of combustible materials. When
checked the excessive oil leaks cited in citation number 8144194 has caused oil
to saturate the area under the operator’s compartment, on and around the valve
chests and area between the oil tank and operator’s compartment, and all around
the center section of the machine.

These oil leaks were very obvious and
listed in the pre-operational check list for this equipment. It’s obvious the
equipment operator has done a good inspection but the operator failed to fix
the conditions or remove the machine from service. These conditions have been
cited numerous times in the past and violations issued today are placing
management on notice of high enforcement action. This mine has had fires on
equipment in the recent past.

Ex.
P-9. The citation was terminated when the oil leaks were repaired and the drill
was washed.

In establishing a violation of section
77.1104, the Secretary must demonstrate: (1) the presence of combustible
material; (2) that the combustible material was allowed to accumulate; and (3)
that the accumulations is located in an area where it can create a fire hazard.
See Maxxim Rebuild Co., LLC, 35 FMSHRC 3261, 3268 (Oct. 2013)
(ALJ); Northwestern Resources, 21 FMSHRC 431, 438 (Apr. 1999) (ALJ).

The
Secretary argues that hydraulic oil is a “combustible liquid,” as defined by
MSHA’s regulations, because it is a liquid mixture with a flashpoint of 374
degrees Fahrenheit.[11]
Sec’y Br. at 20. Justice makes the counter-argument that the hydraulic oil on
the drill was not combustible, and that the motor did not reach sufficient
temperatures to cause an ignition. Resp’t Br. at 23. In support of its
argument, Justice asserts that hydraulic oil is classified by OSHA as “not combustible,”
and that the Material Safety Data Sheet (“MSDS”) for hydraulic oil states that
it is not a fire hazard.[12]
Resp’t Br. at 23; Ex. R-11 at 3, 6.          

Presley
testified that MSHA classifies hydraulic oil as combustible, and that it had
accumulated in close proximity to the motor near the exhaust, and around
electrical components near the operator’s cab. Tr. 96-98. He opined that the
motor and electrical components were hot surfaces and that, if a hydraulic hose
were to burst, it could squirt 3,000 pounds per square inch of oil onto the
motor and turbo.[13]
Tr. 273. According to him, if the oil were to contact the turbo, which can
reach temperatures over 1,000 degrees, a fire would occur. Tr. 267.    

Witt
testified that Justice used Chevron hydraulic oil in the 841 highwall drill and,
according to the MSDS, it has a flashpoint of 374 degrees. Tr. 373-75; Ex. R-11
at 3. He stated that he took the temperature of the turbo and the engine block
on the day of inspection, and observed that the turbo started out at about 800
degrees; when he excited the engine, the turbo temperature increased to 1200
degrees, and the temperature of the engine block was 295 degrees. Tr. 373. He
added that no more than a light film of oil was visible, that it was at least
two feet away from the turbo, and that there was no oil under the operator’s
compartment. Tr. 367-69, 372; Exs. R-18, R-19, R-20, R-21.

The
Commission has recognized the definition of “combustible” as “capable of being
ignited and consumed by fire.” FMC Corporation, 6 FMSHRC 1566, 1567
(July 1984). Several judges have applied this or a similar definition in
addressing underground coal violations. Garden Creek Pocahontas Company,
15 FMSHRC 2126, 2140 (Oct. 1993) (ALJ); Shamrock Coal Company, 12 FMSHRC
2098, 2102 (Oct. 1990) (ALJ); Eastern Associated Coal Corporation, 12
FMSHRC 239, 244 (Feb. 1990) (ALJ).

The
Secretary’s position that hydraulic oil is combustible is supported by the
MSDS, which states that “[t]his material will burn although it is not easily
ignited.” Ex. R-11 at 3. Although Justice argues that there was no possibility
of an ignition given that the engine temperature did not reach the flashpoint
of hydraulic oil, it fails to rebut the evidence that a burst hydraulic hose
could spew oil onto the turbo, which, according to Witt’s measurement, reached
1200 degrees, a temperature far exceeding the oil’s flashpoint. As noted in Justice
Energy Company, affirming similar violations of section 77.1104 for accumulations
of hydraulic oil on highwall drills at the Red Fox mine, a failure of a
hydraulic hose is reasonably likely to atomize the oil and spray it onto hot
engine surfaces, including the exhaust and the turbo. 36-37 FMSHRC __, slip op.
at 9-12, 17. Accordingly, I find that, given continued drilling, hydraulic oil would
be reasonably likely to spew onto the exhaust and turbo, resulting in an ignition.
Therefore, I find that section 77.1104 was violated. 

2. Significant and Substantial

The fact of
violation has been established, and the violation contributed to the hazard of
an engine fire. Again, the focus here is the likelihood and seriousness of
injury. I find that ignition of the hydraulic oil is reasonably likely to cause
burns or smoke inhalation of a serious nature, which would be reasonably likely
to result in, at least, lost workdays or restricted duty. Therefore, I find
that the violation was S&S.

3.
Negligence

The Secretary reiterates
that the extensiveness of the accumulations indicates that they had developed
over an extended period of time and were obvious, and that Justice’s history of
highwall drill violations should have put the operator on notice of the need to
maintain them free of combustible accumulations. Sec’y Br. at 14. Justice,
again, argues that that Cox operated the drill despite noting the oil leaks in his
pre-operational report, and that management was not made aware of the report
until after the citation was issued. Resp’t Br. at 12. The volume of oil that
Presley observed indicates that the accumulations developed over multiple
shifts, and Justice’s management, having been put on notice of drill
maintenance issues, should have had a heightened awareness of this condition. Therefore,
I find that Justice was highly negligent in violating the standard.

F.
Citation No. 8144196

1. Fact of Violation

Inspector
Presley issued 104(a) Citation No. 8144196, alleging a “significant and
substantial” violation of section 77.404(a) that was “reasonably likely” to
cause an injury that could reasonably be expected to result in “lost workdays
or restricted duty,” and was caused by Justice’s “high” negligence. The
Condition or Practice” is described as follows:

The company’s number 834 high wall drill
is not being maintained in safe operating condition. When checked the following
conditions exist: 1. There is better than ¼" of slack in the fits at the
mast jack on the off side. 2. There is ¼" or more of slack in the fit at
the hinge pin for the mast on the off side.  3. The frame work for the mast has
too many cracks and breaks to list all the locations. 4. Both pull down chains
are so loose they have cut into the gussets for the framework on the mast. 5. There
is no cab filter. 6. The mat on the floor of the cab has the tread wore out
causing a slip, trip, or fall hazard. 7. The machine has numerous oil leaks
that affect the function ability of the machine. 8. The mast pin lights do not
work. 9. The framework for the elevated walkway has several cracks and
breaks.

The oil leaks were very obvious and
listed in the pre-operational checklist for this equipment. It’s obvious the
equipment operator has done a good inspection but the mine operator failed to
fix the conditions or remove the machine from service. These conditions have
been cited numerous times in the past and violations issued today are placing
management on notice of high enforcement action.

Ex.
P-10. The citation was terminated after the conditions were addressed.

Presley
described for the record the nine defects that he observed on the highwall drill
and cited. Tr. 100-12. He testified that slack in the mast jack pin and hinge
pin contributed to the hazard of a mast failure, and that a falling mast could
strike the drill operator or a pedestrian, or jar the machine, throwing the
drill operator around the cab. Tr. 102. Addressing the mast, Presley stated
that it had at least 30 cracks and breaks in the supports, and that it was in
“horrible shape.” Tr. 104-05. He described the pull-down chains as having so
much slack that they were sawing into the framework of the mast. Tr. 106. Addressing
the absence of a cab filter, he stated that operation of the drill generates
dust. Tr. 107. He recalled slipping when he entered the cab and noticing a hole
in the mat exposing the metal underneath; he opined that since the machine was
covered in oil, a miner moving about the cab in rubber-soled boots could slip,
trip, or fall, causing a broken ankle or wrist, or head injuries. Tr. 108-09. Focusing
on the oil leaks, he testified that hydraulic and motor oil leaks were so
numerous that he could not determine their origin. Tr. 110, 117. Addressing the
mast pin light, he pointed out that the light indicates that the mast is locked
in place for drilling and, without that indicator, the operator could be
unaware that the mast has become unlocked. Tr. 111-12. Finally, Presley
testified that there were more broken than unbroken cross-braces in the
framework of the elevated walkway, and that he could lightly “bounce up and
down the catwalk and sit there and watch the cracks separate.” Tr. 112-13. He
opined that should the walkway collapse, a miner could fall to the rocky ground
below. Tr. 113-14. On rebuttal, Presley testified that Justice’s photographs,
purporting to show the condition of the 834 drill at the time of his inspection,
did not depict the violative conditions that he had observed. Tr. 603-620; Exs.
R-24, R-26, R-28, R-29, R-30, R-31, R-32, R-35, R-36.

Witt
testified that Presley visually inspected the mast jack pin, and told him that
the pin was moving. Tr. 377. While he admitted that there were some cracks in
the webbing of the mast, he stated that none had broken all of the way through
the metal, and that they did not pose a hazard. Tr. 382-83, 390. Witt also opined
that the amount of slack in the pull-down chains was the machine’s regular operational
state. Tr. 402-03. According to him, the cab had an air filter, and no metal
was showing through the floor mat, as evidenced by a photograph, taken three
and a half or four hours after the citation was issued, showing wear, but no
hole in the floor mat. Tr. 404-06; Ex. R-36. Addressing the inoperative mast
pin light, Witt stated that more experienced drill operators can use
alternative methods to ensure that the mast is locked, and that these lights
were only developed several years ago. Tr. 408-09. Finally, Witt acknowledged
that there was a crack in the metal frame of the walkway, but stated that it
was “rigid and still . . . we was all up there walking around on it.” Tr. 409.

John
Spencer, operator of the 834 drill, essentially corroborated Witt’s testimony,
and disagreed with nearly all of Presley’s contentions. Tr. 529-45, 548-50. He
testified that during his inspection of the drill, Presley became angry after
he stepped into the cab and slipped.    Tr. 526. Spencer admitted that the
floor mat was worn, but opined that the mat would prevent him from slipping and
falling. Tr. 529, 538-39. He also admitted that the drill had oil leaks, but contended
that it was safe to operate. Tr. 529. Spencer added that the mast pin light consists
of two bulbs: green indicating that the mast is locked, and red indicating that
it is unlocked.      Tr. 530-31. According to him, one of the bulbs was not
functioning, although he could not remember which one, but he was able to
determine whether the mast was locked based on whether the functional bulb was
illuminated. Tr. 530-31.

The evidence establishes that the cited
defects, with the exception of slack in the mast jack and hinge pins, rendered
the drill unsafe to operate. As discussed previously respecting the 841
highwall drill, the Secretary has not established that ¼ inch of slack in the
pins renders the drill unsafe to operate, absent evidence of manufacturer or
industry specifications. Regarding the other defects, however, Justice does not
dispute that there were cracks in the framework of the mast and walkway, slack
in the pull-down chains, hydraulic and motor oil leaks, and a defective mast
pin light. Justice’s photograph, purporting to depict the cited mat, is of no
probative value, as has been previously discussed. Moreover, with the exception
of the pins, the evidence as a whole establishes the defects that Presley
cited, and I find that the drill was unsafe to operate in that condition. Therefore,
based on the fact that the 834 highwall drill was operating with a combination
of numerous defects, I find that section 77.404(a) was violated.

2.  Significant and Substantial

The first two Mathies
criteria have been met, in that the violation has been established, and the
violation heightened the danger of sudden mast movement, mast failure, and
walkway failure. The third and fourth Mathies criteria, the reasonable
likelihood of injury and the seriousness of injury, have also been met. Sudden
mast movement and hose rupture would likely result in the operator being thrown
about the cab, struck by a hydraulic hose, or sprayed by hot oil. Mast failure
would likely result in the mast toppling onto a miner, and walkway failure
would likely result in a miner falling to the ground. Any of these hazards
would cause serious injuries ranging from broken bones and sprains to
potentially fatal crush injuries. Consequently, I find that the violation was
S&S.

3.  Negligence

At
the very least, loose pull-down chains and oil leaks were defects noted in the
pre-operational report. Indeed, Presley’s contention, that the drill was in
such poor shape that the operator should have known of its defective condition
just by driving around on-site, is supported by the record. Tr. 117. Therefore,
due to Justice’s operation of the 834 highwall drill with numerous, obvious and
extensive serious defects, I find that it was highly negligent in violating the
standard.

G.
Citation 8144197

1. Fact of Violation

Presley issued
104(a) citation No. 8144197 alleging a “significant and substantial” violation
of section 77.1104 that was “reasonably likely” to cause an injury that could
reasonably be expected to result in “lost workdays or restricted duty,” and was
caused by Justice’s “high” negligence. The “Condition or Practice” is described
as follows:

The company’s number 834 high wall drill
is not being maintained free of combustible materials. When checked there is a
leak at one of the pumps, and there is a leak on the off side of the hot
running motor behind the hot running exhaust. The company has been cited for
this condition before and removed the heat shield and factory equipment that
was designed for the location around the exhaust.

These oil leaks were very obvious and
listed in the pre-operational check list for this equipment. It’s obvious the
equipment operator has done a good inspection but the operator failed to fix
the conditions or remove the machine from service. These conditions have been
cited numerous times in the past and violations issued today are placing
management on notice of high enforcement actions. This mine has had fires on
equipment in the recent past.

Ex.
P-11. This citation was terminated when the leaks were repaired and the drill
was washed.    

Presley described the oil accumulations
on the 834 drill as twice as bad as the accumulations on the 841 drill, explaining
that the drill had strings of hydraulic oil running down the machine and motor
oil leaking directly behind the turbo. Tr. 117-19, 264. Presley observed a
hydraulic hose leaking oil, and opined that it could have burst at any time and
sprayed oil onto the turbo, causing an ignition. Tr. 266, 274. He testified
that motor oil is also combustible and given its proximity to the turbo, it was
reasonably likely to catch fire. Tr. 119, 264-67, 274. In his opinion, were oil
to contact the turbo, “we’d have been fighting a fire, not citing the
conditions that could have caused a fire.” Tr. 267. He also noted that Justice had
removed the heat shield, a manufacturer’s safety feature designed to protect
the motor from the extreme heat of the turbo. Tr. 119-120, 274.     

Justice’s
witnesses, Witt and Spencer, did not dispute that some hydraulic and motor oil
had leaked on the 834 drill. Witt testified that there was no oil on the turbo,
but that there was a film of motor oil ten inches from the top of it, and oil
residue behind the exhaust. Tr. 412. He measured the temperature of the engine
block at 195 degrees, and the exhaust at 295 degrees.  Tr. 412. Spencer
characterized the drill as only having “normal” oil leaks. Tr. 529.

The
MSDS for Chevron motor oil states that it will burn, and that it has a
flashpoint of 399 to 446 degrees. Ex. R-9 at 3. To reiterate, according to the
MSDS for hydraulic oil, it will burn and has a flashpoint of 374 degrees. Justice
applies the same defenses to the citations on the 834 drill that it argued for
the 841. Resp’t Br. at 23-24. According to the evidence, the temperature of the
turbo was not taken during the inspection of the 834 drill. By analogy, then,
given that Justice has made no distinction between the model of the drills, it
is reasonable to conclude that they are similar and that the turbo on the 834
drill also reaches the temperature extremes measured by Witt on the 841 drill,
which far exceed the flashpoints of hydraulic and motor oil. The evidence
demonstrates that Justice permitted combustible oils to accumulate in close
proximity to the hot turbo and, were either oil to make contact, an ignition
would have occurred. Therefore, I find that Justice violated section 77.1104.

2. Significant and Substantial

The
S&S analysis respecting the 834 highwall drill follows the same reasoning applied
to the 841 drill. I find that this hazardous condition was very dangerous, and
that a miner would be reasonably likely to suffer serious burns and smoke
inhalation were an ignition to occur. Therefore, I find that this violation was
S&S.

3. Negligence

Considering that
oil accumulations on the 834 highwall drill were twice that of the accumulations
on the 841, it is readily apparent that this condition had existed over an
extended period of time and was extensive. Moreover, Justice’s negligence was
heightened by its removal of the manufacturer’s protective heat shield. Consequently,
I find that Justice was highly negligent in operating the drill with
significant oil accumulations in close proximity to the turbo, posing a serious
fire hazard.

IV.
Penalties

While the
Secretary has proposed civil penalties totaling $220,008.00, 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, 30 U.S.C. §
820(i). See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736
F.2d 1147 (7th Cir. 1984).

I
find, and the parties have stipulated, that Red Fox is a large mine, and that
the proposed penalties will not affect the operator’s ability to continue in
business. Stips. 6, 10. In reviewing Justice’s Assessed Violation History Report
for the fifteen-month period preceding the subject inspection, twenty-six
violations of section 77.404(a) had become final orders of the Commission; eight
violations of section 77.1104 had become final; and one violation of section 77.1608(a)
had become final. Ex. P-14. Presley testified that Justice has consistently
received section 77.404(a) violations for inadequate highwall drill maintenance,
and that he has personally discussed this problem with the operator on numerous
occasions. Tr. 95, 99. Justice makes no argument respecting its violations
history, and I find it to be a significant aggravating factor in assessing appropriate
penalties. I also find that Justice demonstrated good faith in achieving rapid
compliance after notice of the violations.

The
remaining criteria involve consideration of the gravity of the violations, and
Justice’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.
Citation No. 8144189

It has been
established that this S&S violation of section 77.1608(a) was reasonably
likely to cause an injury that could reasonably be expected to result in lost
workdays or restricted duty, that Justice was moderately negligent, and that it
was timely abated. Therefore, I find that a penalty of $3,143.00, as proposed
by the Secretary, is appropriate.

B.
Citation No. 8144190

It has been
established that this S&S violation of section 77.1605(k) was reasonably
likely to cause an injury that could reasonably be expected to be fatal, that
Justice was moderately negligent, and that it was timely abated. Therefore, I
find that a penalty of $10,437.00, as proposed by the Secretary, is
appropriate.

C.
Citation 8144193

It
has been established that this S&S violation of section 77.404(a) was
reasonably likely to cause an injury that could reasonably be expected to
result in lost workdays or restricted duty, that Justice was moderately
negligent, and that it was timely abated. Therefore, I find that a penalty of
$40,180.00, as proposed by the Secretary, is appropriate.

D.
Citation No. 8144194

It has been
established that this S&S violation of section 77.404(a) was reasonably
likely to cause an injury that could reasonably be expected to result in lost
workdays or restricted duty, that Justice was highly negligent, and that it was
timely abated. Therefore, in consideration of the hazardous condition of the
drill, but the Secretary’s failure to establish visible slack in the mast jack
pin as inherently hazardous, I find that a penalty of $35,000.00 is
appropriate.

E.
Citation No. 8144195

It has been
established that this S&S violation of section 77.1104 was reasonably
likely

to
cause an injury that could reasonably be expected to result in lost workdays or
restricted duty, that Justice was highly negligent, and that it was timely
abated. Therefore, I find that a penalty of $37,416.00, as proposed by the
Secretary, is appropriate.

F.
Citation No. 8144196

It has been established that this S&S
violation of section 77.404(a) was reasonably likely to cause an injury that
could reasonably be expected to result in lost workdays or restricted duty,
that Justice was highly negligent, and that it was timely abated. Therefore, in
consideration of the hazardous condition of the drill, but the Secretary’s
failure to establish visible slack in the mast jack and hinge pins as
inherently hazardous, I find that a penalty of $35,000.00 is appropriate.

G. Citation No. 8144197

It has been established that this
S&S violation of section 77.1104 was reasonably likely

to
cause an injury that could reasonably be expected to result in lost workdays or
restricted duty, that Justice was highly negligent, and that it was timely
abated. Therefore, I find that a penalty of $37,416.00, as proposed by the
Secretary, is appropriate.                    

V.
Approval of Settlement

The parties have
filed a Joint Motion to Approve Partial Settlement respecting two of the nine
citations involved in this docket. A reduction in penalty from $35,984.00 to
$25,189.00 is proposed. The citations, initial assessments, and proposed
settlement amounts are as follows:

Initial
                          Proposed

Citation
No.                Assessment                 Settlement

8144191                      $31,988.00                  $23,000.00

8144192                      $
3,996.00                   $ 2,189.00

TOTAL:
         $35,984.00                  $25,189.00

I
have considered the representations and documentation submitted in these
matters under section 110(k) of the Act. Specifically, regarding Citation No.
8144191, the Secretary has credited Respondent’s contentions that the motor oil
accumulated on the engine of the bus would not likely rise to a temperature
that would cause combustion during short periods of operation and, in the event
of an ignition, fewer than eight persons would likely be affected. Regarding Citation
No. 8144192, the Secretary has credited Respondent’s contentions that the fire
extinguisher on the bus was full and, in the event of an ignition, fewer than
eight persons would likely be affected. I conclude that the proffered
settlement is appropriate under section 110(i) of the Act.

ORDER

WHEREFORE, it is ORDERED
that Citation Nos. 8144189, 8144190, 8144193, 8144194, 8144195, 8144196 and
8144197 are AFFIRMED, as issued; that the Secretary MODIFY Citation
Nos. 8144191 and 8144192 to reduce the level of gravity to “unlikely,”
“non-significant and substantial” and “two persons affected;” and that Justice
Energy Company, Incorporated, PAY a civil penalty of $223,781.00 within
30 days of the date of this Decision. [14]

/s/ Jacqueline R.
Bulluck

Jacqueline
R. Bulluck

Administrative
Law Judge

Distribution:

Emily
O. Roberts, Esq. U.S. Department of Labor, Office of the Solicitor, 211 7th
Avenue North, Suite 420, Nashville, TN 37219

James
F. Bowman, Representative, Justice Energy Company, Incorporated, P.O. Box 99,
Midway, WV 25878

/ss

[1]
The
parties reached a settlement on two of the nine contested citations. The total
civil penalty proposed for the seven remaining alleged violations is
$220,008.00.

[2]
The mast
jack pin holds the jack in place; the jack raises and lowers the mast. Tr. 79.

[3]
30 C.F.R.
§ 77.1608(a) provides that “dumping locations and haulage roads shall be kept
reasonably free of water, debris, and spillage.”

[4]
Contrary
to the wording in the narrative, the testimony makes clear that Presley cited
one roadway on which multiple trucks were traveling.

[5]
30 C.F.R.
§ 77.1605(k) provides that “berms or guards shall be provided on the outer bank
of the elevated roadways.”

[6]
30 C.F.R.
§ 77.2(d) defines “berm” as a pile or mound of material capable of restraining
a vehicle. Contrary to the wording in the narrative, the testimony makes clear
that Presley cited only one berm.

[7] See, for
example, 30 C.F.R. § 77.1605(l) which provides that “berms, bumper blocks,
safety hooks, or similar means shall be provided to prevent overtavel and
overturning at dumping locations.”

[8]
30 C.F.R.
§ 77.404(a) provides that “mobile and stationary machinery and equipment shall
be maintained in safe operating condition and machinery or equipment in unsafe
condition shall be removed from service immediately.”

[9] A “drill steel”
is a round or hexagonal steel rod for boring in coal, ore, or rock. It consists
of a shank, a shaft, and a bit. Am. Geological Institute, Dictionary of
Mining, Mineral, and Related Terms 171 (2d. ed. 1997). 

[10]
30 C.F.R.
§ 77.1104 provides that “combustible materials, grease, lubricants, paints, or
flammable liquids shall not be allowed to accumulate where they can create a
fire hazard.”

[11] The term
“flashpoint” is defined as “the minimum temperature at which sufficient vapor
is released by a liquid or solid to form a flammable vapor-air mixture at
atmospheric pressure.”  30 C.F.R. § 77.2(r).

[12] The MSDS, required for each
hazardous chemical used by mine operators, lists flashpoints and autoignition
temperatures. 30 C.F.R. § 47.51. There is no evidence in the record that the
cited oil accumulations were exposed to temperatures sufficient for
autoignition.

[13]
Testifying
respecting the 834 drill, Presley explained that the turbo is housed in the
exhaust. Tr. 264. A “turbocharger,” also known as a “turbo,” is a device that
supplies air to an engine at a higher pressure than normal to increase the
engine’s power. Merriam-Webster Online Dictionary. 2015. www.merriam-webster.com. (2 Feb. 2015).

[14]  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. Please include
Docket number and A.C. number.