Extra Energy, Inc.

Plain-English summary

Extra Energy operated a small surface mine in West Virginia. Judge Gary Melick found that the company violated standards concerning a contractor vehicle and the reporting of a fatal carbon-monoxide poisoning at the mine. He affirmed both citations and assessed penalties of $50 and $500, for a total of $550. The decision found low negligence and low gravity for the reporting violation because the victim worked during non-production hours and was not often seen by the operator.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 50.10 and 77.404(a)
• Outcome: Both citations were affirmed, with penalties totaling $550.
• Key point: The operator was responsible for the cited conditions and for reporting the fatal accident to MSHA.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

                 OFFICE OF ADMINISTRATIVE LAW JUDGES
                        2 SKYLINE, 10th FLOOR
                         5203 LEESBURG PIKE
                    FALLS CHURCH, VIRGINIA 22041

                        August 23, 1996

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH :
ADMINISTRATION (MSHA), : Docket No. WEVA 96-13
Petitioner : A.C. No. 46-07465-03505
v. :
: Eckman-Page Strip & Auger
EXTRA ENERGY, INC., :
Respondent :

                            DECISION

Appearances: Alan G. Paez, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia for
Petitioner;
William C. Miller, II, Esq., Jackson & Kelly,
Charleston, West Virginia for Respondent.

Before: Judge Melick

 This case is before me upon the petition for civil penalty

filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801et
seq., the “Act,” charging Extra Energy, Incorporated (Extra
Energy) with two violations of mandatory standards and proposing
civil penalties of $1,550 for those violations. The general
issue before me is whether Extra Energy committed the violations
as alleged and, if so, what is the appropriate civil penalty to
be assessed considering the criteria under Section 110(i) of the
Act. Additional specific issues are addressed as noted.

Background

 Extra Energy operates the subject Eckman-Page Strip and

Auger Mine in McDowell County, West Virginia. It is a small
surface operation employing an average of three to four
employees. During the period November, 1994 through April, 1995,
the mine routinely operated ten hour shifts, from 7:00 a.m. to
5:00 p.m., Monday through Friday. Independent contractor Neal
and Associates, Inc. (Neal) provided security at the mine from
6:00 p.m. to 6:00 a.m. on the weekend nights of Friday, Saturday,
and Sunday. Melvin Brian Day, Jr., (Brian) was a security guard
employed by Neal in November, 1994 and assigned to provide night
security for the mine.

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 On Sunday morning, April 9, 1995, around 10:00 a.m., when

Brian did not return home as usual, his father,
Melvin Brian Day, Sr. (Melvin) and his brother, Jeffrey Shawn Day
(Shawn) began looking for Brian. Melvin and Shawn drove to the
mine site looking along the way for Brian’s car. Blocked by the
locked gate at the entrance to the mine, they parked and walked
onto the property. They found Brian’s body in his 1982 Ford
Escort with the engine running, the doors locked, the windows
rolled up, and his citizens band (CB) radio on. His seat was in
a partially reclined position. They gained access to the car by
breaking the sunroof.

 They attempted to use Brian’s CB to call for help but it was

inoperable. The CB cable had been severed when they broke into
the car. Shawn then took the gate key from Brian’s key ring,
unlocked the gate and drove to the accident site. Attempts to
use the CB in Melvin’s car were also unsuccessful so Melvin and
Shawn conveyed Brian’s body to a nearby town and telephoned for
an ambulance. The police were also notified and West Virginia
State Trooper Cochran and McDowell County Deputy Sheriff Mitchell
responded.

 After releasing the body to the ambulance crew, Deputy

Mitchell and Trooper Cochran accompanied Melvin and Shawn to the
accident site. Mitchell and Cochran examined the car and let it
run a few minutes. The officers reportedly commented about
smelling fumes and that there was “an exhaust leakage of carbon
monoxide”. Shawn was then permitted to remove the vehicle from
the accident site.

 James Altizer, Brian Day’s supervisor at Neal, received two

telephone calls on April 9, 1995, advising him of Brian’s death.
The first call was taken by Altizer’s wife who reported to him
that Brian Day had died in a car accident. A later call informed
Altizer that Brian had died on the job site. Driving to the site
along with another Neal employee, Timothy Stanley, they found the
gate open. They were unable to find anyone on the premises or
locate the precise accident site.

 Altizer called Extra Energy Superintendent Steve Haynes at

around 4:00 or 5:00 p.m. on the evening of the accident to inform
him of Brian Day’s death. Altizer told Haynes that the victim
was found on the job site, that he had died from carbon monoxide
poisoning, and that the accident had been investigated by the
State Police and the Sheriff’s Department. According to Altizer,
Haynes responded that “he would take it from there”.

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 Inspector William Uhl of the Department of Labor’s Mine

Safety and Health Administration (MSHA) was directed to
investigate the incident on April 11, 1995. Uhl first contacted
the West Virginia Department of Mines and found that two of their
inspectors had already been at the mine on April 10. In the
course of his investigation Uhl also received a copy of a report
of the incident from the McDowell County Sheriff’s Department
(Government Exhibit No. 2) and the coroner’s report (Government
Exhibit No. 3). In addition, Uhl inspected the automobile in
which Day died. Twelve photographs of the car were admitted into
evidence (Government Exhibits 4 through 15).

 According to Inspector Uhl, when the motor was operated on

this vehicle a separation in the exhaust pipe could be heard as a
“fluttering” sound. Carbon monoxide tests were performed with a
hand held monitor with the car closed and run for 15 minutes. In
each of two tests, 900 parts per million of carbon monoxide was
detected. Uhl testified that based on a “chart we had” such an
exposure over a three hour period can be fatal. He opined, based
upon hearing the exhaust system, that the system had leaks that
were “obvious”. Uhl also concluded that the violation was
serious and “significant and substantial” because exposure to
carbon monoxide can be fatal. He concluded however that Extra
Energy was chargeable with but little negligence based on his
finding that the vehicle was operated by the security contractor
only during non-production hours and was therefore rarely seen by
this production operator.

 Uhl also testified that the fatality had not been reported

to MSHA. Uhl spoke to Extra Energy Mine Superintendent Haynes on
April 11. Haynes said that he had been called by the security
company representative, Altizer, who purportedly told him he did
not know whether it occurred on mine property. Haynes maintained
that this was his reason for not contacting MSHA. Uhl also
determined from the records at the Mt. Hope MSHA office that no
report of the incident had been filed. On April 10, MSHA
Supervisor Ratcliff was apparently also told by Haynes that he
(Haynes) could not ascertain whether a fatality had occurred on
mine property. Uhl had understood that Altizer had called Haynes
on April 9 and, in fact told him at that time that there had been
a fatality “on the job”.

 James Altizer worked for Neal Associates as a field

supervisor in April 1995. He negotiated contracts for Neal and
supervised 20 to 30 security guards at various job sites.
Altizer recalled that Neal and Associates had contracted with
Extra Energy in early 1995 for a security guard. He met with
Extra Energy Mine Superintendent Steve Haynes who told Altizer

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that he wanted someone to guard the auger. About a week after
the contract with Haynes was signed, Altizer hired the deceased
and assigned him to the Eckman-Page mine site. Haynes provided
Altizer with a key to the mine property and Altizer gave the key
to the deceased.

 Later, David Hale, another representative of Extra Energy,

told Altizer that Day’s duties had changed to include some
patrolling. The deceased also later told Altizer that he no
longer was required to patrol the auger site because of the bad
road conditions and he was permitted to locate where he had
better “CB” communications, presumably on mine property between
the two stockpiles. According to Altizer, the vehicles used by
Neal security guards were required to meet state inspection
standards and so long as the vehicle met those standards it was
allowed on mine property.

 Steven Haynes was superintendent for Extra Energy on

April 9, 1995, and in November 1994 when they contracted with
Neal and Associates for security guards. He recalled telling
Altizer that they needed someone to patrol everything at the mine
site, including the auger, the two gates and the load-out at the
bottom of the hill. According to Haynes, Altizer checked the
property and later said that the type of vehicle the guard would
be using would prevent him patrolling the auger site. Haynes
recalled that he then told Altizer to have the guard check only
the gates and the load-out using the county roads. Subsequently
Haynes met the deceased twice at the stockpile inside the gate.
According to Haynes, Day told him that Altizer wanted him to be
stationed there. Haynes purportedly told Day that he did not
want him inside the gates. According to Haynes, the second time
he found Day at the stockpile he warned him not to be on mine
property.

 Haynes testified that Altizer called him on April 9 around

6:00 p.m. advising him that a security guard had died but he
purportedly was not sure where the guard died. He was further
told that the state police were investigating the incident.
Haynes maintained that he looked for glass on April 10, but found
none and when MSHA Supervisor Ratliff visited around 2:00 p.m. on
April 10, Haynes had no answers for him.

 Haynes recalls that around 9:00 a.m. on April 10th he told

an MSHA employee named “Miller” that he could not find any
evidence of the incident on the mine property. Haynes further
maintains that the sheriff would not give him any information
regarding the incident. Haynes maintains that even as of

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April 11, when Inspector Uhl visited the job site he still did
not know where the deceased’s vehicle was found. Haynes contends
that he had no reason to believe it was on mine property.

 Haynes admitted that he permitted Day to retain the gate key

to mine property for “emergencies” and that Day also needed the
gate key presumably to enter mine property in order to chase
four-wheelers off the property. Haynes also acknowledged that
the gates were probably on mine property and that it was part of
Day’s responsibilities to ensure that the gates were locked.

Alleged Violations

 Citation No. 3964767 alleges a violation of the standard at

30 C.F.R. § 50.10 and charges as follows:

     A fatal accident occurred at this mine on
April 9, 1995. The victim was discovered at 10:30 a.m.
MSHA was not notified by the operator.

The cited standard provides as follows:

     If an accident occurs, an operator shall immediately
contact the MSHA district or subdistrict office having
jurisdiction over its mine. If an operator cannot contact
the appropriate MSHA district or subdistrict office, it
shall immediately contact the MSHA headquarters office in
Arlington, Virginia by telephone, at (800) 746-1553.

 Citation No. 3964768, as amended, alleges a violation of the

standard at 30 C.F.R. § 77.404(a) and charges as follows:

     The 1982 Ford Escort (vin) 2FABPU144CX249029 being
operated on this surface mine property was not being
maintained in a safe operating condition. The exhaust
system was leaking carbon monoxide at three locations and
portion of the car body was rusted and deteriated
[sic] allowing high levels of carbon monoxide into the
drivers [sic] compartment. High levels of (CO) was [sic]
detected when funtional [sic] test were [sic] conducted.
This was a contributing factor which resulted in a fatal
injury.

 The cited standard, 30 C.F.R. § 77.404(a) provides that

“[m]obile 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.”

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 Respondent first appears to claim that the deceased,

Brian Day, who was admittedly employed as a security guard by
independent contractor Neal Associates, was not a “miner” as
defined in the Act but was essentially only an unauthorized
trespasser on its mine property and for whose actions it
therefore assumes no responsibility.1 Respondent claims the
deceased was not a “miner” because “at least during the latter
part of his employment by Neal, [he] was specifically directed to
stay off mine property when performing his duties” as a security
guard on behalf of Respondent.

 Regardless of the merits, vel non, of Respondent’s

contention that the Secretary must prove in this case that the
deceased was a “miner” under the Act, it is clear from the
credible evidence that the deceased was in fact a “miner” as so
defined and, furthermore, that he was authorized by Respondent
directly and through its contractor, Neal and Associates, to
perform services on Respondent’s mine property as a security
guard. More importantly, the evidence shows that the deceased
was, during relevant times, working in the subject mine.

 In reaching these conclusions I have not disregarded Haynes’

testimony that he had twice directed the deceased to perform his
job as a security guard on the county roads outside the mine
gates and that he told the deceased that he did not want to see
him on mine property. This testimony is, however, contradicted
by Altizer’s testimony, by the contractor’s records which
continued to show that the deceased was patrolling on mine
property and the fact that an agent of the Respondent reviewed
these records, and by Haynes own testimony that the deceased
retained an access key for emergency entry onto mine property,
to chase trespassers and to secure the gates which were
“probably” on mine property. Under the circumstances I accord no
weight to Respondent’s contention that the deceased was
essentially only an unauthorized trespasser.

 Respondent next argues that the Secretary’s decision to

charge it as the production operator in this case was an abuse of
discretion. It is now, of course, well established that, in
cases involving multiple operators, the Secretary may generally
proceed against either an owner or production operator, his
contractor, or both. W-P Coal Company, 16 FMSHRC 1407 (July
1994); Bulk Transportation Services, Inc., 13 FMSHRC 1354, 1360

1
  A “miner” is defined in Section 3(g) of the Act as “any

individual working in a coal or other mine”.

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(September 1991); Consolidation Coal Company, 11 FMSHRC 1439,
1443 (August 1989). In addition, it is established that the
Secretary has wide enforcement discretion. W-P Coal Company at
1411. The Commission has nevertheless recognized that review of
the Secretary’s action in citing an operator is appropriate in
order to guard against an abuse of discretion. Id. at 1411. The
difficulty is that there is little guidance as to what
constitutes an abuse of discretion in this regard. The Secretary
has here elected to charge both the independent contractor
security company, Neal and Associates, and the production
operator, Extra Energy, with violations related to the death of
the independent contractor’s employee Brian Day.

 The Secretary argues that his decision to cite Extra Energy

as the production operator of the Eckman-Page Mine was based in
part by the fact that it was the statutory “operator” who
controlled and supervised and had the right and ability to
exercise control and supervise the mining operation. The
Secretary also argues that the issuing inspector in this case
followed MSHA’s program policy manual guidelines in determining
when to cite production operators. Those guidelines provide as
follows:

(1)   When the production operator has contributed by either
      an act or by an omission to the occurrence of a
      violation in the course of an independent contractor’s
      work;

(2)   When the production operator has contributed by either
      an act or omission to the continued existence of a
      violation committed by an independent contractor;

(3)   When the production operator’s miners are exposed
      to the hazards; or

(4)   When the production operator has control over the
      condition that needs abatement. (See Government
      Exhibit No. 22).

 The Secretary’s “guidelines” one and two are, however,

unworkable and essentially meaningless because it can always be
said that a production operator contributed by omission to a
violation committed on its premises by one of its contractors.
Moreover it would be a rare case indeed where it could not be
said that the production operator had some degree of control over
a condition at its mine that needed abatement. The fourth
“guideline” therefore is also essentially without meaning. Thus,
when the Secretary claims that he has followed guidelines one,

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two and four it is likewise meaningless. These are not true
“guidelines” at all when there are virtually no factual cases
which would fall outside of such “guidelines”.

 The Secretary has also failed to prove that the third

“guideline”, the only truly workable guideline, was met. Since
the deceased was the sole operator of the defective vehicle while
acting as a contract security guard at the mine and since he
worked at night when the Respondent’s workers were ordinarily not
present, Respondent’s miners were not exposed nor was it likely
that they would have been exposed to the carbon monoxide hazard
in the cited vehicle presented by the violation charged in
Citation No. 3964768. The Secretary offers no explanation as to
how his third “guideline” applies to Citation No. 3964767. Under
the circumstances I find that the Secretary has failed to
demonstrate how his third “guideline” has been met on the facts
of this case.

 In spite of the noted deficiencies in the Secretary’s

“guidelines” I nevertheless find that the Secretary did not abuse
his discretion in proceeding against both the contractor and the
production operator herein. The guidelines are, in any event,
merely expressions of general policy and are not binding
regulations that the Secretary is required to observe. Brock v.
Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 538-39 (1986).
Moreover Respondent did in fact directly contract with Neal for
security and tightly and continuously controlled access to mine
property with locked gates. The undisputed evidence also clearly
shows that the subject vehicle had an obviously defective exhaust
system and no current inspection sticker. These factors, while
minimal, are sufficient to warrant the Secretary’s action in
charging Respondent for its part in the violations herein. It is
noted that the Secretary has recognized Respondent’s lesser
responsibility for the violations by his findings of decreased
negligence. I further find that with respect to Respondent’s
failure as production operator to have reported the fatal
accident at its operation to MSHA under the standard at 30 C.F.R.
§ 50.10, there is strict liability regardless of whether
Respondent contributed to the accident or had control over the
conditions giving rise to the accident.

 Respondent also argues that it did not violate the standard

at 30 C.F.R. § 50.10 by failing to notify MSHA of the fatal
accident, as alleged in Citation No. 3964767, because of
Superintendent Haynes’ uncertainty that the fatal accident had
occurred on its property. While it is undisputed that before
Haynes even knew of the incident both the subject vehicle and
deceased’s body had already been removed from the mine site,

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leaving no direct evidence of the accident, I nevertheless find
Altizer’s testimony credible that on the same day as the
accident, he told Haynes that Brian Day had died in his car at
the subject mine of carbon monoxide poisoning. In any event
since the fatal accident had occurred at the mine and Respondent
failed to notify MSHA of the accident, Respondent is strictly
liable for the violation. I agree however that ample mitigating
circumstances exist to warrant a finding of low negligence and
low gravity and that, accordingly, the proposed civil penalty of
$50 is appropriate for this violation considering the criteria
under Section 110(i) of the Act.

 Neither the existence of the violation charged in Citation

No. 3964768 nor the findings associated therewith are otherwise
challenged by Respondent (See Respondent’s Post Hearing
Argument). Based on the record evidence and the Secretary’s
undisputed findings, including the Secretary’s acknowledgment
that Respondent’s negligence was “rather low” (since the victim
worked during non-production hours and was “probably seen very
little by the actual controlling operator”) I conclude that a
civil penalty of $500 is appropriate.

                         ORDER

 Citation Nos. 3964767 and 3964768 are affirmed and Extra

Energy, Inc. is hereby directed to pay civil penalties of $50 and
$500, respectively for the violations charged therein within 30
days of the date of this decision.

                         Gary Melick
                         Administrative Law Judge

Distribution:

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Alan G. Paez, Esq., Office of the Solicitor, U.S. Dept. of Labor,
4015 Wilson Blvd., Suite 516, Arlington, VA 22203 (Certified
Mail)

William C. Miller, II, Esq., Jackson & Kelly, P.O. Box 553,
Charleston, WV 25322 (Certified Mail)

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