FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

LAWS AND REGULATIONS

The citation involved in this matter, Citation No. 7163903, was issued under Section 104(a) of the Federal Mine Safety & Health Act of 1977. That provision provides the following:

If, upon inspection or investigation, the Secretary or his authorized representative believes that an operator of a coal or other mine subject to this Act has violated this Act, or any mandatory health or safety standard, rule, order, or regulation promulgated pursuant to this Act, he shall, with reasonable promptness, issue a citation to the operator. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The requirement for the issuance of a citation with reasonable promptness shall not be a jurisdictional prerequisite to the enforcement of any provision of this Act.

30 U.S.C. § 814(a).

The Citation deals with an alleged violation of 30 C.F.R. § 77.1302(j) (titled “Vehicles used to transport explosives.”). That section provides the following:

When vehicles containing explosives or detonators are parked, the brakes shall be set, the motive power shut off, and the vehicles shall be blocked securely against rolling.

30 C.F.R. § 77.1302(j).

The Secretary maintains the citation was based upon violations that were Significant and Substantial (“S&S”) in nature. Well-settled Commission precedent sets forth the standard used to determine if a violation is S&S. A violation is S&S “if, based upon the particular facts surrounding the violation there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). The Commission later clarified this standard, explaining:

In order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984).

The S&S nature of a violation and the gravity of a violation are not synonymous. The Commission has pointed out that the “focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996) emphasis added. The only mention of the term “gravity” in the Mine Act is contained in Section 110(i), which states that in determining the appropriateness of a penalty, the Secretary must consider, among other things, “the gravity of the violation.” 30 U.S.C. § 820. The Secretary promulgated a three-factor inquiry to determine the gravity of a citation for purposes of determining the penalty. Those factors are:

[T]he likelihood of the occurrence of the event against which a standard is directed; the severity of the illness or injury if the event has occurred or was to occur; and the number of persons potentially affected if the event has occurred or were to occur.

30 C.F.R. § 100.3(e).

Finally, pertinent regulations and well-settled Commission precedent elucidate the standard for negligence under the Act. Negligence “is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. § 100.3(d). “A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices.” Id. Low negligence exists when “[t]he operator knew or should have known of the violative condition or practice, but there are considerable mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew or should have known of the violative condition or practice, but there are mitigating circumstances.” Id. High negligence exists when “[t]he operator knew or should have known of the violative condition or practice, and there are no mitigating circumstances.” Id. See also Brody Mining, LLC, 2011 WL 2745785 (2011)(ALJ). Finally, an operator exhibits reckless disregard where it displays “conduct which exhibits the absence of the slightest degree of care.” 30 C.F.R. § 100.3(d). Mitigating circumstances may include, but are not limited to, actions taken by the operator to prevent or correct hazardous conditions or practices. Id.

VIOLATION

1. Citation No. 7163903

On October 2, 2012 at 9:20 a.m., Inspector Tyrone L. Stepp (“Stepp”) issued to Respondent Citation No. 7163903. Stepp found:

The red Mack prill truck (SL-144) was parked. Explosive and prill on the truck. Driver was approximately 175 feet away from the truck. Truck not attended. Engine running. Not blocked against rolling. Transmission in neutral.

Petition of the Secretary of Labor for Assessment of Civil Penalty at 10. Stepp noted that the risk of injury or illness for this violation was “Reasonably Likely,” “Fatal,” “S&S” and would affect one person. Id. He further marked that Respondent exhibited “Moderate” negligence with respect to this violation. Id. Respondent took action to terminate the condition on the same date at 10:00 a.m. Under “Action to Terminate” Stepp noted:

Engine was shut down. Transmission was put in gear. Park brake was set. Truck was blocked against movement. Discussions were held with the driver.

Id.

STIPULATIONS

The parties have stipulated to the following:

1. 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 Federal Mine Safety and Health Act of 1977 (“the Act”).

2. Virginia Drilling is an “operator” as defined in Section 3(d) of the Act at the coal mine where the citations at issue in this proceeding were issued.

3. The products of the mine at which the citation at issue in this proceeding was issued entered commerce, or the operation or products therefore affected commerce, within the meaning and scope of Section 4 of the Act.

4. The maximum penalty which could be assessed for this citation pursuant to 30 U.S.C. § 820(a) will not affect the ability of Virginia Drilling to remain in business.

SUMMARY OF THE TESTIMONY

1. Testimony of Jimmy Paige Anderson (“Anderson”)

A. Anderson’s Testimony Regarding His Background

On October 2, 2012 Anderson was employed by Respondent as a blaster. Tr. 29. He is a certified blaster in Kentucky, Virginia, and West Virginia and has CDL Class-B in West Virginia. Tr. 261.[1] He had worked for Respondent for 10 years. Tr. 261.

B. Anderson’s Testimony Regarding His Activities Before the Citation

On the day of the citation, Anderson was blasting at MT-13/500 Mine. Tr. 29. He was working with Joey Mahon (“Mahon”). Tr. 29. Both he had Mahon were supervising that day, but neither is management. Tr. 30. He was working on the bench. Tr. 32. He thinks there was a spoil pile but no highwall. Tr. 32. There was no drop-off, only a level bench. Tr. 32, 33.

Anderson operated the red Mack Company truck No. SL-144 and he conducted the pre-operation examination. Tr. 30, 31. The red Mack SL truck was made in 1994 or 1996. Tr. 267. It takes two people to pre-shift the truck because one person must check the lights in the back and the tie rods. Tr. 31. As part of the pre-shift, Anderson performed a stress test on the parking brake. Tr. 31. To do this, he put the truck on a grade and tested the brake to see how much it held. Tr. 31. He pulled the maxi and put it in gear and it did not move. Tr. 31. This is done every morning. Tr. 31. To park the truck, Anderson put it in a lower gear and pulled the maxi. Tr. 32. Respondent’s Exhibit 14 is the pre-shift for covers shifts from August 7, 2012 through November. Tr. 267.[2] It shows no hazardous conditions in the pre-op examination. Tr. 267.

C. Anderson’s Testimony Regarding the Explosives

Anderson believes he was using 30-MS20s and CD 5.5 (a one-third pound booster) as a detonator. Tr. 33. Surface delays for the detonators are attached later. Tr. 34. They used “30-foot CDs, 50 and 42.” Tr. 34. According to Anderson, “[i]t’d be 42 milliseconds and 17 milliseconds.” Tr. 34. At the time, the surface detonators were in a day box. Tr. 35. A day box is used to carry explosives with detonators in one box and caps in another. Tr. 35. The primers and caps were outside of the day boxes, stored in a cardboard box on the bumper. Tr. 37, 38.

D. Anderson’s Testimony Regarding the Citation

At one point, Anderson headed to the truck to get some boosters and Stepp approached him and told him that he did not “chock” the wheels. Tr. 33, 264, 265.[3] At the hearing, Anderson could not initially recall if Stepp told him he was going to issue a citation. Tr. 33. Later, he said that Stepp had told him he would write one. Tr. 264, 265. He was present when the citation was written. Tr. 262.

At the hearing, Mahon drew a diagram (R-15) showing where Anderson was standing when Stepp arrived. (see summary of Mahon’s testimony infra). That diagram was accurate. Tr. 266. When Stepp arrived, he had been away from the truck for five or ten minutes. Tr. 266, 267. He never got any further from the truck than the “X” on the diagram. Tr. 267.

Anderson disputed that the truck was parked. Tr. 265. However, if it was parked, Anderson believes the tires were blocked. The grade in the area was such that it blocked the front tires of the powder truck from moving. Tr. 262, 263. The way it was sitting, it could not roll away. Tr. 265. On cross examination, Anderson admitted that he did not show Stepp where the tires were blocked because he thought the truck was in use. Tr. 265. He did not talk to Stepp about the truck being in use because Stepp was walking away. Tr. 265.

In addition to the grade, Anderson pulled the maxi-brake when he got out of the truck because that is what he had learned for the CDL test. Tr. 263, 264. The maxi was engaged and the tires were up against the grade so the truck could not move. Tr. 264. On cross examination, Anderson admitted he did not take any photographs because he did not have a camera. Tr. 265. Further, Donnell Miller (“Miller”) did not ask him to take notes about the truck. Tr. 266.

2. Testimony of Anthony Kidd (“Kidd”)

A. Kidd’s Testimony Regarding His Background

Kidd is the safety director for Respondent and Austin Sales and has been for six years. Tr. 40, 269. Respondent and Austin Sales are sister companies with one buying the explosives and the other using them. Tr. 40. The companies are owned by Vetco holdings. Tr. 40.

Kidd has been in the mining industry since 1975. Tr. 269. He is a Class-A CDL driver with a Hazmat endorsement through OSHA. Tr. 273. He has been through OSHA training, DOT training, drug testing, and brake testing. Tr. 273. He has been to Bendex Class to learn to adjust brakes and has done accident investigations. Tr. 273. His duties include ensuring that employees are safe and that the company follows all standards for the ATF, Department of Transportation, MSHA, and the States of West Virginia and Kentucky. Tr. 41. He is also responsible for ensuring the corporation is protected from liability for safety issues. Tr. 41. Kidd has no hiring authority, but he can terminate an employee who knowingly violates the Mine Act or a regulation. Tr. 41, 42. He is also responsible for training. Tr. 41. If Kidd sees a new type of hazard then he will convene training for that hazard. Tr. 44.

B. Kidd’s Testimony Regarding Chocking Tires, Brakes, and the Bench

With respect to chocking tires, the only guidelines Respondent uses for training are the standards. Tr. 46. Once a truck has left the bench and blasting area to park, the tires are chocked. Tr. 46.[4] When on the bench or in the blasting area, Respondent does not train employees to chock the tires. Tr. 46.

In addition to chocking, trucks are prevented from moving by brakes. On an ANFO truck there are three braking systems. Tr. 62, 63. The first are retardant brakes used when a truck is going down a steep incline, to prevent overheating. Tr. 63. The second type is air-released, spring-inclined, and these are fail-safe. Tr. 63. These brakes cannot fail if properly maintained and adjusted. Tr. 63. Once a maxi-brake is set the truck cannot roll. Tr. 63. If a brake was set and someone tried to tow the truck, the bumper would come off before the truck moved. Tr. 63. The only legal requirement for the brakes is that they be properly maintained and adjusted. Tr. 62. No one ever stated the brakes here were improperly maintained. Tr. 62. Further, one video titled “Brakes, Grades and Runaways,” and produced by MSHA with John Robowski and Ray McKinney calls the maxi-brakes on this truck “fail safe” brakes. Tr. 61, 62.

Kidd is not aware of any accidents caused by runaway trucks owned by Respondent or Austin Powder. Tr. 64. He knows there has not been for the last six years and has never seen a record of any earlier accidents. Tr. 64. Respondent has been in business for 18 years. Tr. 64.

C. Kidd’s Testimony Regarding the Austin Sales Citation and 30 C.F.R. §77.1302(j)

Kidd is familiar with an earlier citation issued to Austin Sales in Kentucky on August 23, 2012 (Government Exhibit 1) for similar circumstances under the same subsection. Tr. 49, 55.[5] The Austin Sales citation was for failure to chock the tires when there were no employees in the cab. Tr. 50, 55. Kidd learned of the citation the day it was issued. Tr. 55, 56. He attended a conference on that citation before October 2, 2012. Tr. 50. But Kidd is not aware that at least one Authorized Representative felt that “park” applied when a truck was on the bench. Tr. 50.

G-2 is a letter dated August 28, 2012 prepared by Kidd’s secretary requesting a conference on the Austin Sales citation. Tr. 56, 57. Kidd’s letter states, “At the time that the violation was written, there were two men who were working approximately 80 feet from the truck, they were working on loading shots, the truck’s gears were placed in park, however, it was not blocked from rolling shut off because to load the shot, it is required that the engine still to be running for them operate.” Tr. 57. There was a mistake in that letter; the truck was not in park. Tr. 57. At the conference, Kidd discussed the citation with MSHA to get clarification on enforcement of the standard. Tr. 277, 278. Austin Sales put on evidence and explained how the truck shoots 200 holes and how miners would be required to get out 22 times and chock the tires. Tr. 278. Kidd said that this could result in back injuries. Tr. 278. Further, he noted that shutting off the engine would mean the truck could not be used. Tr. 278. This would put the company out of business. Tr. 279. The District 6 Representative said that they could chock the wheels but leave the engine on. Tr. 50, 51, 59, 60, 278, 279, 280. Kidd did not believe that it was possible to follow only part of the standard and MSHA did not explain how it was legal. Tr. 53, 60, 279. Further, Kidd noted the standard does not say to chock the tires, it says to block against rolling and the maxi-brake blocks against rolling. Tr. 280, 281, 282, 283. No changes were made to the Austin Sales docket at the conference. Tr. 54. Kidd believes MSHA changed its interpretation of the standard between the Austin Sale Citation and this Citation, making it is hard to know what MSHA requires. Tr. 59. Kidd was not aware that MSHA was going to be applying this standard in this way. Tr. 60. District 12, the district dealing with the instant citation, did not offer a conference. Tr. 53, 282.

On cross examination, Kidd admitted he did not apply to the District Manager for District 6 or 12 to get a variance from Section 77.1302(j) to permit Respondent to use the maxi-brake alone in place of tire chocks. Tr. 281, 282, 283. He did not believe that it was necessary; he believed Austin Sales was already in compliance. Tr. 282. Before the Austin Sales citation, the only citation under 30 C.F.R. §77.1302(j) that Kidd recalled involved a truck left in a parking area overnight, not on the bench. [6] Tr. 64, 65. The company did not contest that penalty. Tr. 64, 65. When in the parking area, the truck’s wheels are chocked, the transmission is put in gear, the steering wheel is hobbled and the doors are locked. Tr. 66. Wheels will then either be chocked or placed so they are backed into a parking ditch. Tr. 66.

D. Kidd’s Testimony Regarding Inspections

Respondent does not own any mine sites or receive quarterly inspections. Tr. 283, 284. However, it is inspected often because of the number of jobs sites it maintains in West Virginia, Kentucky, and Tennessee. Tr. 284. It is inspected each time an inspector goes on an EO3 inspection. Tr. 284. These inspections can last several weeks. Tr. 284. Even if Respondent is not present at the time of an EO1, inspectors will sometimes, but not always, ask to see equipment. Tr. 284, 285.

3. Testimony of Tyrone L. Stepp

A. Stepp’s Testimony Regarding His Background

Stepp graduated from high school in 1968 and attended college for three years. Tr. 68. He has worked at a surface mine, in construction, at highwall mines, and at Island Creek for about five years in the industrial engineering department. Tr. 68, 69. He has run heavy equipment, helped load shot, and spent time on probably every piece of construction or heavy equipment at a mine. Tr. 68, 69. He worked with heavy equipment for about ten years. Tr. 69. He also operated truck, loaders, dozers, and road graders. Tr. 69. On cross examination, Stepp stated that he is not a certified blaster in West Virginia and never has been. Tr. 109, 110. However, he took some classes on explosives at the Academy. Tr. 110. He also worked on powder crew, probably in 1982. Tr. 110. He did not work for a blasting company, he work for a coal company. Tr. 110

Stepp is currently employed by MSHA as a surface inspector specialist at the Logan Field office. Tr. 69, 70. He has worked there since 1982. Tr. 70. When he started, he took the basic courses and since then has received many surface classes and ventilations classes. Tr. 71. He also briefly apprenticed under an Authorized Representative. Tr. 71. Stepp receives a week or two of update training every other year. Tr. 70. For 15 years he inspected underground and surface mine, but for the last 15 he has only inspected surface mines. Tr. 70. As a surface mine inspector his duties include checking equipment and records for all shifts and checking the shooting, contracting, and coal hauling. Tr. 71.

B. Stepp’s Testimony Regarding His Inspection

Stepp conducted an EO1 inspection of MT-13/500 Mine on October 2, 2012. Tr. 72. MT-13/500 Mine is operated by Consol, and Jason Sullivan (“Sullivan”) is the mine foreman. Tr. 75, 76. To prepare for the inspection he reviewed the mine map, the plans (including ground control plans), and the citations issued during the last inspection. Tr. 72. He also reviewed the pre-shift/on-shift book. Tr. 76. Stepp had been to MT-13/500 mine a few times before and he is generally familiar with the mine site. Tr. 77. It is a typical surface mine, with highwalls, drill benches, rock truck grades, valley fills, and rock pits. Tr. 77. They haul rock out with loaders and trucks on the high wall. Tr. 77. A surface mine changes constantly with new coal pits and drill benches every day. Tr. 77. MT-13/500 is a medium size mine. Tr. 77.

According to his notes, he arrived at the mine around 7:30. Tr. 72, 73. When he arrived he met with Sullivan. Tr. 76. The inspection started with an imminent danger run, as is required before other inspections can occur. Tr. 76, 83. He began his run at the active pits, starting at the No. 1 Coalburg Pit. Tr. 78. That is where he wrote the citation at issue. Tr. 78. When they pulled up around 9:20 a.m., he saw several drilled holes in the bench. Tr. 81, 86. There were two employees present. Tr. 78. He saw a prill truck idling and un-chocked. Tr. 78. When he first went to the truck, Stepp did not check to see if the brake was set, but he made a mental note and asked later. Tr. 82. The two men were around 175 feet away, parallel to the truck. Tr. 78, 79, 113. They were parallel to the driver’s side of the truck. Tr. 113, 114. Stepp spoke to the driver and learned the truck was loaded with primers and caps. Tr. 79. He told the driver this was a violation for failure to chock the tires. Tr. 79. The manufacturer’s chocks were on the truck and the driver chocked the tires, put the truck in gear, and turned the engine off. Tr. 79, 80. It takes about eight to ten minutes to chock the tires and meet the other requirements. Tr. 131. Stepp did not know the trucker but he told him he worked for Respondent. Tr. 80. The trucker did not say much about the citation. Tr. 81. There was a drop-off in the area, may be four or six feet down. Tr. 81, 82. However, Stepp admitted on cross examination that the men were not working on top of a highwall. Tr. 123

Stepp made notes regarding the identification number of the truck.[7] Stepp made his notes contemporaneously. Tr. 86, 124. He tries to be accurate and get the points in taking notes. Tr. 124, 125. On page 6 of his notes, Stepp noted “Red Mack Prill” and then, “TRF SL-144.” Tr. 85.[8] He noted “parked, engine running, neutral, not chocked, not attended.” Tr. 85. The notes also say “200 feet from truck” but he changed it to 175 feet when he was writing the citation because the notes were an estimate. Tr. 86, 125. It could have been shorter or longer. Tr. 125.

Stepp did not inspect the truck at issue and is not sure if he checked the pre-operational examination conducted on the truck that day, though it would have been easy to do so. Tr. 111. Stepp asked the employees about the truck. Tr. 111. If something was wrong, Stepp would have issued a violation. Tr. 111. Stepp did not inspect the brakes. Tr. 112. He is not aware of the PSI that the maxi-brake puts on each wheel, but he does not check brakes that way, he runs a functional check. Tr. 117. At the time of the examination, the maxi-brake had to be set. Tr. 112. He assumed the brake was set, he did not check, but he could have. Tr. 112, 115, 117. He is not even sure if the maxi-brakes were any good. Tr. 116. He did not check because his primary focus was the imminent danger run. Tr. 112, 131. He does not deviate from his imminent danger run because it could save someone’s life and he did not consider this to be a life-threatening situation. Tr. 116, 117. As a result, he did not issue an imminent danger. Tr. 131. Stepp did not see the truck move any time before writing this citation. Tr. 115. It is possible that the truck could move with the maxi-brake engaged. Tr. 116.

When he arrived, Respondent’s employees were not in the process of loading, because the truck was parked. Tr. 86. When loading, the truck is out between the holes, the booms are out, and there is a man in the cab loading the hole. Tr. 86, 87, 126. The driver will load, pull forward, load more, and work in the loading cycle. Tr. 87. At this time, the power cannot be shut off because without power, you cannot pump. Tr. 125. It is possible to shut off the motive power when the workers are using the auger to load the powder into the hole, but it slows the process down. Tr. 126. Here, the truck was sitting a few feet off of the drill pattern parked and inactive. Tr. 87, 113. Stepp believes the whole truck was off the drill pattern. Tr. 113. Stepp is not sure how long the drill pattern was, but he thinks it was 175 to 200 feet. Tr. 114. Stepp would have no basis to dispute that the drill pattern was 135 feet, he did not measure it, he just estimated. Tr. 114, 115.

The area where the truck was sitting was uneven. Tr. 87. It was level with the road, but not perfectly level like a pool table. Tr. 118. There may have been spots where, if the brake released, the truck would not roll, but 95 to 98% of benches will allow a truck to roll if the brake is released. Tr. 87, 118, 119. A half a percent grade on a bench will allow a truck to roll, however he has no studies to confirm this fact. Tr. 119. Stepp does not recall if the bench inclined up towards the road after the shot area. Tr. 119, 120. Stepp cannot dispute that the tires were blocked from rolling by the grade of the ground. Tr. 122.

Stepp does not recall seeing a pick-up truck or another prill truck out on the bench. Tr. 113, 114. Stepp is not sure if Respondent’s employees were on the pattern, what they were doing, or how far away they were. Tr. 115. They were in the back by the holes at the far end. Tr. 115. Stepp does not recall if there was a drill on the bench, in the shot area, when he arrived on the section. Tr. 117. He does not think that any of the shots were loaded at the time arrived. Tr. 117, 118. He did not walk over the whole shot or look in every hole. Tr. 118.

Stepp assumed the Respondent’s employees were going to load the holes that had been drilled and that they would be doing that the entire shift. Tr. 88. However, they work on other areas as well. Tr. 89. The other kinds of areas that he would expect loading and blasting to occur at this mine includes other benches with perhaps a five-percent grade. Tr. 89.

C. Stepp’s Testimony Regarding His Activity After the Issuance of the Citation

After issuing the citation, Stepp was finished with the imminent danger run, but still had several more things to do on the EO1. Tr. 95. At some point that day he met with Respondent’s Foreman, Miller. Tr. 95, 98. Stepp told him he issued two citations. Tr. 96. Miller said that the employees had been trained and knew better. Tr. 96. With respect to the chocking citation, Miller said “my people know better, my people have been trained, there’s no reason for it.” Tr. 96. It took Stepp two more days to finish the inspection. Tr. 97. He spoke with Miller again about these citations. Tr. 97. He learned that Miller was considering giving the employees a three-day suspension with intent to discharge, but Respondent decided against it. Tr. 97.

D. Stepp’s Testimony Regarding Enforcement of 30 C.F.R. § 77.1302(j)

Stepp has written citations for failure to chock tires when powder was being loaded in the past. Tr. 126, 127. Chocking tires is not necessary; it is possible to leave a man in the truck cab. Tr. 127. Stepp’s definition of “park” does not include situations where a man is inside the cab. Tr. 128. It is only parked if he is outside of the cab. Tr. 128. He has almost definitely written a citation for this before, but he cannot point to a specific instance. Tr. 127. He does not recall if he wrote a citation for this violation to Respondent in the past. Tr. 128, 129.

D. Stepp’s Testimony Regarding the Validity of the Citation

The standard at issue, 30 CFR 77.1302 is titled “Vehicles used to transport explosives.” Tr. 99. Subsection (j) states, “When vehicles containing explosives or detonators are parked, the brakes shall be set, the motive power shut off and the vehicles shall be blocked securely against rolling.” Tr. 99. The Mack truck, Company No. SL-144 Stepp observed on MT-13/500 Mine on October 2, 2012 was a vehicle and it contained explosives. Tr. 99. He knows it contained explosives because the driver told him it was loaded with prill and had primers and caps. Tr. 100. The truck was parked when Stepp saw it and no one was in the cab or around the vehicle. Tr. 100. The closest people were the two blasters and they were 175 feet from the truck. Tr. 100. The motive power of the truck was not shut off. Tr. 100. The wheels were not chocked and Stepp did not see any ground features that would prevent the truck from moving. Tr. 101. Respondent violated 77.1302(j). Tr. 101.

E. Stepp’s Testimony Regarding Gravity and S&S

Stepp believes this violation was S&S. Tr. 102. It contributed to a potential hazard. Tr. 102. Specifically, if the truck started rolling it could strike people or other equipment, or it could roll off the highwall. Tr. 102. If it rolled off the highwall it could cause an explosion or strike a person or piece of equipment. Tr. 102. The foreman or blaster could be exposed. Tr. 102, 103, 104. The types of injuries Stepp would be concerned about would depend on the direction that the truck rolled. Tr. 105. If it rolled slowly back and hit a truck it could do some damage. Tr. 105. If it hit a person going slowly it could cause some injury. Tr. 106. However, if the truck was rolling down a four-percent grade it could hurt someone in a truck or, if a person was on foot, break their legs or back. Tr. 107, 131, 132. Stepp is not aware of any fatal accidents caused by inadequately secured vehicles. Tr. 107.

4. Testimony of Thomas Lobb

A. Lobb’s Testimony Regarding His Background and Preparation

Lobb is a senior physical scientist for explosives and blasting for MSHA Technical Support. Tr. 135. He has held that position for at least five years. Tr. 136. Lobb holds a master’s degree in occupational safety and occupational health. Tr. 136. He has 45 years of experience in blasting. Tr. 136. He started out in underground coal mines then moved to surface mines, cleaning blasting, construction blasting for underground mines and other kinds of specialty blasting. Tr. 137, 172. Lobb was a maintenance foreman at Island Creek, both surface and underground. Tr. 172. He has been certified as a blaster and as an electrician in the past. Tr. 137. He is also a certified mine foreman in underground coal mines in West Virginia and Ohio and a certified surface mine foreman in West Virginia. Tr. 137.

On cross examination, Lobb admitted he is probably not a certified blaster now, because while he teaches classes he never submits paperwork. Tr. 170, 171. He was a certified blaster in West Virginia, but he cannot recall his number. Tr. 171. He may have been certified in 1970, 1975, or 1978. Tr. 173. In that year, the West Virginia Department of Mines in fact certified blasters. Tr. 173. His certification number is “00-something or other.” Tr. 173. He does not know for sure if it is active or inactive, he has not been to refresher courses. Tr. 173, 174. He does not believe it is active. Tr. 174. He does not have the same certification as the miners here, but he is certified. Tr. 174. He has a receipt from where he got it. Tr. 174. Further, he was head blaster in charge on a crew when he worked for T&J Coal Company, Dunbar Coal Company, Consol No. 3 Mine, No. 2 Mine, T&J Hillside Mine, and Presley Energy. Tr. 172, 173. Lobb also admitted that when he was a maintenance foreman he did not deal with ANFO trucks. Tr. 172. The last time Lobb worked on a surface mine doing blasting was in the early 1990s. Tr. 174, 175. He has worked for MSHA since that time, starting in 1997. Tr. 175.

Lobb’s duties as a physical scientist in tech support include releasing technical information to the industry and to the government, including OSHA and MSHA. Tr. 138. He peer reviews articles and presents for societies such as the International Society of Explosives Engineers and the Society of Mining Engineers. Tr. 138. He also teaches and performs accident investigations. Tr. 138. He has served as an expert witness dozens of times in the past. Tr. 138.

Lobb was asked to evaluate whether Respondent’s failure to chock the wheels of an explosive truck on October 2, 2012 at MT-13/500 Mine contributed to a hazard. Tr. 136. He reviewed the citations, the inspector’s notes, and the photos while preparing to testify. Tr. 139. The photos were produced by the operator. Tr. 139, 140. Those photos purported to show the truck involved in this citation. Tr. 140. He also reviewed the blasting log. Tr. 140. He heard the testimony of Stepp, Kidd, and Anderson. Tr. 140. Lobb determined that the failure to chock the wheels contributed to four potential hazards. Tr. 140, 141.

On cross examination, Lobb admitted he was not present at the mine at the time of the citation and has no first-hand knowledge of where the people were or where the trucks were. Tr. 175. He does not know the grade of the bench. Tr. 175, 176. Further, Lobb did not interview witnesses, as that is not his role. Tr. 176. He does not think it is important to interview the workers to find out what was going on at the bench. Tr. 176, 177. He does not believe it would help to relay the conditions that day, but he does care about the conditions at the mine. Tr. 177.

B. Lobb’s Testimony Regarding Brakes and Rolling

Lobb has mechanical experience with the braking systems of large vehicles, like the truck at issue here. Tr. 141, 142. Lobb was a maintenance foreman for three or four years. Tr. 144, 145. His duties included managing braking systems. Tr. 145. He had experience with parking brakes, emergency brakes, and maxi-brakes. Tr. 146. He worked with maxi-brakes on underground and surface mining equipment (which is standard-apply brake). Tr. 144. These brakes are designed to have an override so that the brake can be released if a tow is necessary. Tr. 144. Further, the brake drums can be decisive in how maxi-brakes perform. Tr. 144. If maxi-brakes were fail-safe, MSHA would not need six engineers that investigate truck accidents caused by trucks going around curves. Tr. 144. There are lots of failures with brakes and scrutiny is important because of the nature of the park brake. Tr. 144.

Beyond brakes, Lobb discussed other issues related to rolling. When a truck is loaded with explosives, the majority of the weight is on the back axle, but as the auger unloads the material in the truck, the weight shifts. Tr. 145. If a higher percentage of the remaining residual weight is in the front axle versus the back axle, it can cause the truck to roll. Tr. 145. The way the truck rolls depends on weight and mechanical engineers can do a vector summation to determine if there is sufficient force to allow a truck to drift or not drift. Tr. 145, 146. Another issue that occurs often with surface trucks, including explosive bulk trucks, is that when they return from the bench after loading the shot they sometimes come back with a thousand pounds of mud accumulated on the frame of the truck. Tr. 146. Also, about a year and a half ago, a blaster was killed in West Virginia when his truck did not fully go into park and it drifted down the hill and it crushed him against the drill bench. Tr. 146. This also created the danger of a truck pinning a person against equipment in the area. Tr. 152, 153. Even at five miles per hour, that is a little over 7 feet per second. Tr. 154, 155. Finally, the fact that the engine was running slightly increased in the possibility of a hazard because of the vibrations. Tr. 167. If the truck does move it can potentially shift into a lower gear. Tr. 167. If the engine is off, it typically does not shift to a lower gear. Tr. 167.

B. Lobb’s Testimony Regarding the Kinds of Explosives Used

At a construction or mine blasting site there are three types of explosives. Tr. 161. 99% of explosives are blasting agents, called prill or ANFO. [9] Tr. 161. Next there is the initiation system, or blasting caps, also known as detonators. Tr. 162. Finally, there is dynamite or a booster that the detonator is set in and this causes the prill to explode.[10] Tr. 162. Detonators are susceptible to be initiated by outside sources. Tr.162. The boosters are less susceptible, but the base burden of the detonator can cause the booster to explode. Tr. 162. Prill is very unsusceptible to detonations. Tr. 161, 162. But when the booster explodes, it can cause prill to explode. Tr. 162. As a result, all explosives must be stored separately. Tr. 163.

C. Lobb’s Testimony Regarding the Hazards Cause by Explosives

Heat, impact, and pressure can cause explosions. Tr. 155. The main hazard in this case would be running over the exposed surface explosives or primers. Tr. 141, 147, 163, 164. Lobb heard Stepp’s testimony about the blasting holes and the location of the truck and the employees. Tr. 147. He has also seen the blasting log that was referenced earlier that illustrates the pattern of the blasting area and the types of explosives to be used. Tr. 147. This was a non-electric type of detonation. Tr. 148. In a non-electric, or shock-tube detonations, the tubes are susceptible to “snap-and-shoot.” Tr. 148. This occurs when there is sufficient stretching of the tube that can cause it to break and then recoil. Tr. 148. This causes a shock wave to go through the aluminum dust in the tube and this in turn causes the detonator to fire. Tr. 148. Here, if the truck moved and it was hooked onto the tubing it could have caused a snap-and-shoot. Tr. 148. Further, every pound of explosive is equal to 76 million horsepower and the blast holes have 15 or 16 pounds of explosives. Tr. 164. That could throw deadly rocks. Tr. 164. Therefore, once the process of loading has begun and there are exposed explosives, someone needs to be sure that they are not run over. Tr. 164, 165. This sort of event caused a serious injury in West Virginia a few years ago. Tr. 141. On cross examination Lobb admitted that the truck involved in that incident was a pick-up truck. Tr. 178. He is not sure of the exact location; he has reviewed thousands of reports. Tr. 178. But he can remember one from another. Tr. 178.

In addition to snap-and-shoot, the Bureau of Mines has shown that as little as 15 pounds of pressure can make the detonator go off. Tr. 149. Since the truck weighs 50 to 60,000 pounds, there would be sufficient energy to cause a detonation if it were moving or fell from a highwall. Tr. 149, 156. If a detonator went off under those circumstances, the detonator itself could cause injuries. Tr. 149. Lobb has seen pictures of people with their jaws blown off or hands blown off. Tr. 140, 150. But if the detonator is near the boosters, there have been fatal accidents and people can be blown into multiple pieces. Tr. 150. Fatal injuries have occurred with 1 pound boosters, these were 1/3 pound boosters, but that is still enough to kill. Tr. 150. Also, the truck could fall off the highwall, although that might not have been a danger here. Tr. 150. If the truck fell, it could crush the day box and cause a detonation. Tr. 150, 151. However, it is not certain that an explosion would occur. Tr. 155. Lobb has also investigated accidents where rocks hit a detonator causing a detonation that in turn set off the boosters killing a person. Tr. 156. Another danger would occur if the detonator wire came out of the shock tube about half an inch, this could cause a detonation. Tr. 141, 149.

Finally, the battery cables are exposed; if the truck fell on a sharp object, a fire could occur. Tr. 151. The detonators will go off at 500 degrees and fuel reaches 1,200 degrees. Tr. 151. The battery cables are covered with a two-type copper wiring for insulation, if those two wires meet with the positive wire, if the battery is pinched against the from of the truck, it can cause a fire. Tr. 156. Since the fuel tanks are close to the battery wire, there is a potential that the battery fire can cause the fuel tanks to catch fire. Tr. 156, 157. Additionally, if the truck rolls away it is possible for it to be involved in a collision and catch fire, though this is not a high probability event. Tr. 156. Lots of miners are lost to fuel fires even on new dozers and the truck in the picture appeared to be older with parts subject to fatigue. Tr. 157. If such a fire occurred, it could ignite detonators or the prill. Tr. 157. The type of day box that Lobb saw did not afford a lot of fire protection and he did not see any ATF labeling. Tr. 157. He did not see the truck, but it must be stenciled on the side of the box under the sealing. Tr. 157, 158.

D. Lobb’s Testimony Regarding Confidence in the Hazards

Lobb is confident that failure to block the wheels of this truck contributed to multiple potential hazards because of his years of doing MSHA blasting accident statistics and presenting them to groups. Tr. 169. He also investigates equipment accidents and has access to a database of them. Tr. 169. That database does not include the types of trucks involved, so he does not know the total number of accidents. Tr. 169. On cross examination, Lobb admitted that while he has investigated accidents, he does not remember exact locations or details. Tr. 180, 181. But there is no doubt in his mind that there were important safety reasons to require the wheels be chocked in this case. Tr. 169, 170. Most operators have a system that allows them to chock the wheels in two or three seconds, it is surprising that this was even an issue here. Tr. 170.

Lobb mentioned four categories of hazards associated with the truck sitting off of the blast pattern. Tr. 178. On cross examination, Lobb admitted that all of the scenarios that he discussed deal with situations where the truck starts to move. Tr. 178, 179. Without the truck moving, these events probably could not occur. Tr. 179. However, he still believes there was a potential for an accident here. Tr. 179. Lobb does not know if the brakes worked at all or worked perfectly. Tr. 179. He does not know if the wheel was sitting in a depression and is not sure if that has anything to do with this case. Tr. 180. That may not prevent rolling. Tr. 180.

E. Lobb’s Testimony Regarding the Blast Site

Lobb noted that the International Society of Explosives Engineers and the Mine Dictionary parts 56 and 57 define the blasting site as those places with loaded blast holes, plus fifty feet. Tr. 153. The blast area encompasses places where debris and fly rock may land and it can be much larger, up to 18,000 feet. Tr. 153. A truck does not need its wheels chocked in the blasting area. Tr. 154. If a truck is in a designated parking ditch in the magazine area and shut off, then it is “fair game.” Tr. 154. If it is out of the magazine area, it is in use and if no one is in the driver’s seat, it is parked. Tr. 154.

F. Lobb’s Testimony Regarding the Photographs

Lobb reviewed several pictures. He noticed that the battery box was within inches of the fuel tank. Tr. 158, 159. This increases the chances of fire because the battery can generate a lot of heat if short circuited and the battery is unprotected in this area. Tr. 159. The photograph (G-6) shows workers doing their jobs, but also shows that they are not attending the truck. Tr. 160. If the truck were to start to move it could go into the blast pattern and pull out detonators or cause a shock-tube type detonation. Tr. 160. On cross examination, Lobb admitted that he is not sure that no one was in the truck at the time G-6 was taken. Tr. 181, 182.

G. Lobb’s Testimony Regarding Parking

The reason the tires must be chocked when the truck is parked, but not when someone is inside is because a person in the cab can do whatever is necessary if the brakes fail, including sound sounding the horn or stopping the truck. Tr. 168. This is the only place Lobb has seen where it is not standard practice to chock the wheels. Tr. 165.

H. Lobb’s Testimony Regarding MHSA’s Oversight of Trucks

MSHA does not approve trucks for use on the bench; the operator approves them. Tr. 182, 183, 184. MSHA can only certify equipment as permissible. Tr. 182, 183. MSHA inspects lots of equipment. Tr. 183. There are regulations that govern how the powder is carried on the truck and what the hopper should look like. Tr. 183. The DOT has requirements for the trucks, the ATF handles storing explosives, and MSHA deals with the safety of explosives. Tr. 183. The ATF does not deal with the safety of explosives. Tr. 183. There are certain requirements for an explosives truck. Tr. 183. Lobb does not know if it is a violation for the truck to be out on the bench, he is not an AR. Tr. 184. He has never gone to the Academy. Tr. 184.

5. Kidd’s Rebuttal Testimony

A. Kidd’s Testimony Regarding Maxi-Brakes

Lobb’s testimony that vibrations from the truck could disengage the maxi-brake is “rubbish.” Tr. 270. The brakes are sealed with dust covers and mud flaps to prevent anything from getting inside. Tr. 270. If a truck vibrated enough to disengage the brake it would set off the detonators. Tr. 270. Further, this truck has six brakes and the four in the back are what MSHA calls fail-safe brakes. Tr. 271. This means they work two ways; they are spring applied and they are released. Tr. 271. Once the spring is applied, each one distributes 2,000 pounds per square inch on each individual wheel. Tr. 271.

B. Kidd’s Testimony Regarding DOT Regulations and the Truck

Thirty CFR title 48, section 17 says to follow DOT regulations 300 or 399. Tr. 271. These are the standards used for the transportation of gasoline in residential areas and apply to trucks that weigh 80,000 pounds, while the truck here weighs only 20,000 pounds. Tr. 272. Also, the truck is designed with crash-rating in mind. Tr. 273. Everything on the truck has been crash-tested. Tr. 273. If the battery box and fuel tank raised the issues Lobb described, Federal Motor Carriers would not allow the truck on the road. Tr. 273, 274. Also, the effect of a crash on the battery is known. Tr. 274. Kidd disagrees with Lobb on this point based on his experience and training. Tr. 274.

C. Kidd’s Testimony Regarding Accident History

Kidd investigated §77.1302(j) through the MSHA Helpline. Tr. 274. It lists each standard and then the number of accidents and fatalities associated with it. Tr. 274, 275. According to the Helpline, based on data gathered from 7001’s, accident investigations, Westlaw, and elsewhere, there have been zero fatal accidents associated with § 77.1302(j). Tr. 275. Lobb said that the 7001 could have listed an accident in a different kind of truck and would not come under explosive, but that is not true. Tr. 275. The 7001 lists the manufacturer, the piece of equipment, the type of equipment, and how long it has been operated; it is a complete record. Tr. 275. According to this, there has been no §77.1302(j) violations resulting in a single accident. Tr. 275.

Lobb was not a blaster and Kidd does not know if he holds a CDL or has ever driven a truck. Tr. 275, 276. Lobb also stated that he investigated hundreds of fatalities, but those accidents are listed by case number. Tr. 276. The one incident Lobb recalled involved an Austin Powder case at Frasier Creek Mining in Kentucky where a blasting foreman pulled down on a bench in a pick-up truck, got out, and did not put the truck in park. Tr. 276. The foreman was talking to the drill operator and the truck struck and killed them both. Tr. 276. It was not a blaster truck and not being used for blasting, it was a different situation. Tr. 276.

6. Lobb’s Surrebuttal Testimony

A. Lobb’s Testimony Regarding Outside Influences on the Brakes

Respondent is confused with respect to the effects of vibration. Tr. 287, 288. There are three different systems on the truck that are designed to slow it down. Tr. 288. Respondent characterized the augers in the truck as the brake, and they are not the brake. Tr. 288. When Lobb talked about vibrations he was talking about the parking brake, not the maxi-brakes. Tr. 288. The maxi-brake is an air-operated brake and if there are vibrations dirt can get into the system and the valves can be blocked or partially blocked. Tr. 288. The brake in the cam is set with the service brake, if that brake is out of adjustment the maxi-brake will not work as designed. Tr. 288. Lots of trucks crash even when they have a maxi-brake. Tr. 288.

B. Lobb’s Testimony Regarding Accident Investigation

With respect to the number of accidents and how accidents are classified resulting from explosions and mechanical issues, under 30 CFR Section 50.20, there is a listing of accident, injury, and illness forms to be filled out for MSHA. Tr. 288, 289. The forms are filled out exclusively by operators and then entered into a database by MHSA. Tr. 289. There are no other database studies or forms provided by the 7001 forms that go into the database. Tr. 289. For example, the fatal accident investigated in 1997 was classified by the operator as a methane explosion and so that is how it is listed on the MSHA database. Tr. 289. Personally, Lobb has not investigated hundreds of fatalities, but he has reviewed hundreds in preparation for his statistics. Tr. 290.

7. Testimony of Donnell Miller

A. Miller’s Testimony Regarding his Background

Miller has been employed by Respondent for eleven years. Tr. 189, 190. In that time he has been lead blaster and site manager. Tr. 190. He has been in the blasting industry for roughly 19 years. Tr. 190. Miller is a certified blaster in West Virginia, Kentucky, Virginia, and Tennessee (although he has never blasted in Tennessee). Tr. 192. To become a certified blaster he worked under a certified blaster for a year and learned the trade. Tr.192. Then he filed an application for a blaster license, took a written test and, in West Virginia, a practical exam. Tr. 192, 193. On the test he needed to known the basic MSHA, ATF, and DOT regulations and the safety hazards that cause explosive detonations. Tr. 193.

His duties include checking the drill bench to determine if the holes are wet and how many there are. Tr. 191. He does this even though he is not a certified foreman. Tr. 191. While his crew is doing pre-operational checks, he gets information together and relays it to the people at the magazine so they know what to bring to the shot. Tr. 191. He works a shift from 6:00 a.m. to around 5:00 p.m. Tr. 191. At the time of the hearing he was working a Wiley Creek job (MT-13/500) and a new job at Twin Branch. Tr. 191, 192. At MT-13/500, the job was to drill blast-holes and then charge the detonation shots for Consol Energy. Tr. 190. It is a small mine, because they do approximately 450-500,000 yards per month. Tr. 190, 191. The part of the mine he worked on October 12, 2012 is still open. Tr. 192.

B. Miller’s Testimony Regarding the Lay-Out of the Bench

The layout of this area is as follows: the area that the coal had been extracted from and the binary shot were gone. Tr. 201. The road came down with a gradual turn to the left then turned back into the pit. Tr. 201. The road dropped down a little bit on the side and then turned because it had spoil in front. Tr. 201. There was a gradual grade toward the shot rock or spoil behind it, creating a small V-area. Tr. 201. This is typical. Tr. 201. This was in the front area of the shot and the road comes down onto the bench at the row that goes off at 126 milliseconds or 252 milliseconds. Tr. 202. Unlike G-6, on the day of the citation they were loading in a direction perpendicular to the highwall, with the highwall on the left. Tr. 205. They always move front to back with shots, never right to left. Tr. 205. The grade in the picture is somewhat similar to the elevation at the time of the citation, but it is not exactly the same. Tr. 205.

C. Miller’s Testimony Regarding Loading Shot

To load the shot, the crew backs the truck up to within 30 feet of the highwall, but no closer, to allow the boom to move. Tr. 202, 203. They then load two rows of production holes. Tr. 203. They swing the boom back and forth, filling holes on each side. Tr. 203. The crew will then put the booster and the detonator together and lower them into the hole. Tr. 204. They usually put them on their side so that the cord will come back up out of the hole. Tr. 204. Then they will charge with ANFO and cover it with drill cuttings. Tr. 204. When they are augering the powder, the truck must be on. Tr. 204, 205. The detonator used that day was a non-electric shock tube detonator with a 500 millisecond down hole blast and a one-third pound cast booster that would be initiated by surface caps. Tr. 217. Detonations are initiated with a snap gun and a shot-shell primer loaded into the end of it. Tr. 217. The shot tube is inserted into the snap gun, pulled back, and released to detonate. Tr. 217

D. Miller’s Testimony Regarding the Blasting Log

The blasting log (R-1) lists the permittee’s information, who the blasting is for, GPS location, and protected structures. Tr. 195. Protected structures are inhabited, or possibly inhabited, structures. Tr. 195. The closest one in this case was a gas well. Tr. 195. It looks like the gas well was 1,450 feet east from this area. Tr. 196. The log asks for information on weather conditions, the type of material being blasted, and provisions made for protection. Tr. 196. The weather was partly cloudy, 72 degrees with a north/northeast wind at zero to three miles per hour. Tr. 196. They were blasting shale from the Rider Seam down into the No. 1 Seam. Tr. 196. The blast information includes the blasting agent used, the density of that product, and the high explosives, in this case its Pentex 5.5 and one-third pound caps and boosters. Tr. 196. The density, 1.5, is the weight of the primers. Tr. 197. The information also includes the depth of the holes, here four and a half feet deep and six foot of coal. Tr. 197. The burden and spacing was 15 by 15 and the powder column was eight inches. Tr. 197. That works out to 18.16 pounds per foot. Tr. 197. This corresponds to how many holes are on the pattern, in this case 199. Tr. 197. The diameter was seven and seven-eighths. Tr. 197.

The second page of the log contains the delay pattern; the bottom left of the sketch starts at zero and is the initiation row. Tr. 198. There is a 42-millisecond delay between each shooting row. Tr. 198. The 17s pointing in the eastern direction mean that there are two holes initiated together with each surface connection, so there are two holes at 17, two at 34, and so on. Tr. 198. Each down hole detonating has an MS500 delay. Tr. 199. This is a CTD surface connector that snaps down on the V-tube that actually gives the firing time on the surface. Tr. 199. The blasting pattern is 135 feet by 285 feet. Tr. 199. The blank area on top of the sketch is the bench and it has arrows showing where protected structures are located and north. Tr. 199. Behind this shot in the bench is a spoil, a previous production shot down from the Rider Seam. Tr. 199, 200. There was 20 feet of bench behind that. Tr. 200. This area is the pit. Tr. 200.[11]

E. Miller’s Testimony Regarding His Actions on October 2, 2012.

On October 2, 2012 Miller was working for Respondent at MT-13/500 and arrived around 5:50 a.m. Tr. 193. Once he arrived, he went to the bench that had been drilled the night before and made a hole count, checked the hole and bench conditions, checked how much was going to be loaded, and checked to see if the holes were wet (most were). Tr. 193. The bench he checked is the one at issue. Tr. 193, 194. This area is referred to as the Coalburg No. 1 Seam. Tr. 194. The loading crew was Mahon and Anderson, and there were other crews on the bench above. Tr. 194. On the day of the citation, the crew did not do any drilling because that was completed the night before. Tr. 197, 198. At the time, Respondent ran two shifts. Tr. 198.

They began loading at around 7:30 or 8:00. Tr. 207. When Miller arrived at the bench, the powder truck was sitting outside the bench area. Tr. 207. Miller does not know the age of the red Mack truck. Tr. 232. It is older than five year and probably around 10. Tr. 232. It was chocked and the motor was cut off and in gear with maxi-brake set. Tr. 207. Miller guarded the truck while other workers got another load of wet bags in a pickup. Tr. 207. Miller came out of the pit when they returned. Tr. 208. Anderson backed the truck into the entrance of the shot. Tr. 208. Miller passed Stepp and Sullivan on his way out as he was going to another bench. Tr. 208. He last saw the truck in front of the pit between several rows of holes, near where the road went into the pit. Tr. 208. Anderson was still in the truck when Miller left, so he does not know if the tires were chocked. Tr. 208.

Miller went to a bench in an area above the pit and was not present when the citation was issued. Tr. 208, 209, 231. On the upper bench, they drilled a hundred foot breakdown wall. Tr. 231. The bench is naturally bermed at least three feet high all the way around the bench area and it is fairly level. Tr. 231. There is a steep road leading up to it. Tr. 231. On the right side of the berm there was a hundred foot drop off. Tr. 231, 232. After drilling was completed, Respondent was going to use an ANFO truck to load the holes. Tr. 232.

Miller learned about the citation when Stepp and Sullivan went to the upper bench and informed him. Tr. 209. Miller does not remember if Stepp told him what the citations were for, but he thinks he said the trucks were unattended and not chocked. Tr. 209, 210. There was also another citation. Tr. 209. Miller told Stepp that the miners were trained and they had done something illegal, that was bad. Tr. 209. But he was not sure of the violation because he had not spoken to the employees. Tr. 209, 210. Miller heard the testimony that he said that his men knew better. Tr. 210. But that was taken out of context; he meant that if they were doing something illegal then they knew better. Tr. 210. After he heard what happened, he did not believe there was a violation. Tr. 210. Miller talked to Stepp about what would happen if the violation was sustainable, but he cannot say whether he said the men would be fired. Tr. 210, 211.

G. Miller’s Testimony Regarding Brakes

Miller is familiar with the brakes on this truck. Tr. 213. His driver told him the brakes were set on this truck at the time of the citation. Tr. 213. There are four spring-loaded maxi-brakes on the rear tandems that will hold 20,000 PSI when set. Tr. 213, 214. So to have a runaway, all four brakes would have to fail. Tr. 214. Miller also is familiar with pre-shifting for the brakes. Tr. 214. To pre-shift the brakes, they take the truck to a small hill near the magazine site and stop the truck on the hill and apply the brake. Tr. 214. They then put the truck in fourth gear and let out the clutch to see if it will pull through the brakes. Tr. 214. If it does, the brakes are adjusted by a mechanic. Tr. 214. It takes two people to pre-shift the truck every time. Tr. 214, 215. The pre-shift was completed that day and it was put into the book, no defects were noted. Tr. 215. There is no way the truck could have moved on this particular day. Tr. 215. Further, if there is ever a situation where there is a very steep grade and Miller feels that it would not be safe to leave the truck, he will leave a driver in the cab of truck and cut the tires to the inside bank. Tr. 215, 216. This is something he would have to do under the Mine Act. Tr. 216. In Miller’s opinion, this was not a situation where that would be necessary. Tr. 216.

F. Miller’s Testimony Regarding 30 C.F.R. 77.1302(j)

Miller does not agree that this was a violation of 1302(j) because he did not consider the truck to be unattended. Tr. 212. The situation was similar to what Stepp testified to, but Miller might dispute the distance of people from the truck. Tr. 212. Anderson was probably only 60 to 75 feet from the truck, but Miller was not there to see. Tr. 216. Anderson was moving toward the truck, backing up a little further on the shot to where he could access his caps and boosters more easily. Tr. 216, 217. This situation is common procedure; he has never had an inspector to issue citations on the bench while they were loading or heard of it happening. Tr. 212, 213, 230. He does not know if they changed the citation or just changed the interpretation. Tr. 213. He has never been involved with a runaway ANFRO truck caused by failure to chock tires. Tr. 213. Mahon and Anderson were not disciplined for this because it was not a violation. Tr. 230.

H. Miller’s Testimony Regarding the Photographs

Respondent brought several pictures of ANFO trucks and benches. Miller did not take the photographs and he does not recall when they were taken. Tr. 230, 231. They were taken by Kidd. Tr. 231. Miller reviewed R-2. Tr. 218. It showed Anderson loading primed holes with ANFO from the truck. Tr. 218. There was an operator, James Pennington (“Pennington”), running the boom from the controls of the truck and Miller is in the photo watching the high wall. Tr. 218, 224.

Miller reviewed R-3, showing Anderson checking to see if holes were wet. Tr. 218. It also showed drills and the bulk truck. Tr. 218. The bulk trick is backed in on the drill pattern, getting ready to start loading the shot. Tr. 224, 225. There are two drills drilling holes on the right. Tr. 225. Mahon is to the left of the truck kicking some drill cuts into the holes. Tr. 225.

Miller reviewed R-4, showing a side view of the truck with Mahon in the foreground. Tr. 223. It shows flags that indicate cracks and voids. Tr. 223.

Miller reviewed R-5, showing a hole that was ready to be charged with ANFO with residue where they started the auger. Tr. 222. The person in the photo has his tape ready to bring the ANFO blasting agent up in the hole. Tr. 222. Mahon is in the right hand side of the photo, Miller is in the center and there is an auger coming down between them. Tr. 222, 223.

Miller reviewed R-6, showing Anderson crouched over putting a cap and booster together to drop into the hole to load it. Tr. 222.

Miller reviewed R-7, showing Anderson wearing a yellow jacket and tying a knot on his tape where he wants to stop the powder from coming out of the hole. Tr. 221. This was a wet hole. Tr. 221. Miller and Mahon are standing nearby and Pennington is operating the controls of the truck. Tr. 221, 222, 226. Mahon is extending a hole that is already loaded. Tr. 226. Extending means shovel in the drill cuts on top. Tr. 226. It means cutting. Tr. 226.

Miller reviewed R-8, showing a bench area being loaded and there are some wet holes transported by pickup. Tr. 218, 219. Those are loaded first. Tr. 219. This is typical of what shot looks like before the holes are loaded. Tr. 219. The photo is somewhat representative of what the area looked like on the on the day of the citation. Tr. 219. The flags in the pictures are drill flags that show where a particular hole hit coal. Tr. 219. It allows them to know the drill went to low, because they do not blast into the seam. Tr. 219, 220.

Miller reviewed R-9, showing the shot with two drills on the right. Tr. 223. Anderson is walking along the shot, kicking in the holes. Tr. 227.

Miller reviewed R-10, showing a bulk truck backing in. Tr. 220. The drill is in the middle of the picture, pulling the highwall out and the bulk truck is behind that, ready to start loading the holes. Tr. 220. The truck is off to the left side. Tr. 220. These are 12 to 14 foot bore holes. Tr. 220, 221.

Miller reviewed R-11, showing the back of the ANFO truck. Tr. 221. On the left side the road that comes into the bench and almost depicts the grade of coming down hill into the bench in the case at issue. Tr. 228. However, the road that day was narrower than the one in this picture. Tr. 228.

Miller reviewed R-12, showing the shot loader, SL-144. Tr. 228. It looks like the driver is pulling up to load holes. Tr. 228.

Miller reviewed R-13, showing the parking area where the trucks are parked at the end of the day. Tr. 229. It depicts shot loader SL-198 sitting in the parking lot with the wheels chocked. Tr. 229. The steering wheel is chained, the transmission is in gear, and the maxi-brake is set, although these things are not visible in the photo. Tr. 229. In addition, to these precautions all products must be in the day box, the motor must be off, and the doors must be locked. Tr. 229.

One picture shows an ANFRO distribution truck with three day boxes on it, and one on the passenger side. Tr. 206.[12] There are three separate bins in the box for carrying ANFO. Tr. 206. This particular truck unloads from front to back. Tr. 206. The picture shows that a serial number of SL-144, this is the exact truck that was cited. Tr. 206. The back of the truck shows the bumper area and it is about six and a half feet wide. Tr. 206, 207. There is a control panel on the back axle and this is where the operator of the boom is positioned. Tr. 207.

Testimony of Joey Mahon

A. Mahon’s Testimony Regarding His Background

Mahon is employed by Respondent as a certified blaster, and was employed by Respondent in October 2012. Tr. 233. He heard Miller testify about the requirements for becoming a blaster. Tr. 234. Before getting a blaster’s license he worked on the powder crew for three years instead of one like Miller. Tr. 234. He has been with Respondent his entire blasting career, around seven years. Tr. 234. Besides being a certified blaster he has a West Virginia surface card and a Class-A CDL driver’s license. Tr. 234, 235. That license allows him to drive a tractor trailer or 10-wheeler. Tr. 235. He also has a tanker endorsement. Tr. 235. A CDL is not required to drive a powder truck on a strip job, but a CDL and a Hazmat endorsement, are required for driving on hardtop. Tr. 235. Mahon does not have a Hazmat endorsement. Tr. 235.

B. Mahon’s Testimony Regarding Pre-Shifting the SL-144 Truck

The red Mack truck is roughly from the 90s. Tr. 255. Mahon helped Anderson with the pre-shift of the SL-144 truck (R-14). Tr. 237, 238, 239. To pre-shift, Anderson got into the truck and checked the lights including the high beams, low beams, left turn signal, and right turn signal. Tr. 238. Mahon went to the back of the truck to check the park light, the reverse lights, backups on, break lights, and signal lights. Tr. 238. The report shows that everything checked out and nothing was observed at the time of the inspection. Tr. 239. They checked the brakes on a downhill grade. Tr. 239, 240. They pull down a little grade, set the brakes, and put the truck in low gear, then ease out on the clutch to make sure the truck will not pull through the brakes. Tr. 240. If it pulls through the brakes, it has to be put back in the parking lot, tagged out, and not used until a mechanic comes. Tr. 240. The downhill grade is just off the parking lot. Tr. 240. The parking area pretty much does not change. Tr. 240.

C. Mahon’s Testimony Regarding His Actions on October 2, 2012

On October 2, 2012 Mahon was loading the bank at Coalburg 1 Seam at Wiley Creek (MT-13/500). Tr. 235, 236. That mine is operated by Consol and it is small. Tr. 236. On that day, he was working dayshift which starts at 6:00 a.m. but does not have a quitting time. Tr. 236. They stop when the shot has been fired, everything is put away, and the truck is locked up. Tr. 236. That is usually 4:30 or 5:00 but they have to stay until it is done. Tr. 236, 237.

When Mahon arrived that day he gave the drillers a ride to the drills and then he went back to Anderson to do the pre-shift. Tr. 237. They waited at the head of the hollow to see what they needed for the shot to be loaded. Tr. 237. This was in the area called Coalburg. Tr. 237. They did not drill shots that day; that had been completed the previous night. Tr. 237. Then they conducted the pre-shift. Tr. 237. The entire length of the shot from front to back was 135 feet. Tr. 244. There were a total of 199 drill holes and the truck was on the shot. Tr. 247.

Anderson drove the truck to the location and parked it. Tr. 253. Mahon arrived separately in his pick-up but at the same time as Anderson. Tr. 253. He pulled the powder truck off the bench, locked it down, and Miller guarded the area while Anderson and Mahon went to get more wet bags from the wet bag trailer.[13] Tr. 253, 254. “Locked down” means the little chocks were down, the truck was in gear and the motor was off. Tr. 258. When the truck was locked down, it was off the shot area. Tr. 258. When they returned, he dropped Anderson off at the powder truck and then backed his truck back up onto the shot. Tr. 254. Anderson moved the truck back down on the bench. Tr. 254. Then he got out of the truck to lay out the holes and the boosters. Tr. 254. Mahon could not see the side of the truck to know whether the tires were chocked. Tr. 254. It could not have been more than five minutes after Anderson got out of the truck that Sullivan and Stepp arrived. Tr. 254, 255. Mahon could not see Stepp when he motioned to Anderson. Tr. 255.

When Stepp arrived, Mahon was on the back of the shot in his pick-up. Tr. 242. He had his pick-up because he hauled down some wet back for wet holes. Tr. 242. The holes are fifteen feet apart, so Mahon calculated that his truck was 75 feet from the powder truck. Tr. 244, 245. Pre-shifting the pick-up is the same as pre-shifting the powder truck. Tr. 242. Mahon pointed out where the powder truck was sitting on the diagram (R-15). Tr. 242. 243. The powder truck was on the pattern. Tr. 243. The front tires of the powder truck were a spot where there was a little V in the terrain where the road and the bench met. Tr. 246. It was the whole length of the road and prevented the truck from rolling forward. Tr. 246. Mahon put a PT where the powder trick was located and a JA where Anderson was located. Tr. 244, 252. Anderson was at that location, making his way back to get caps and primers when he encountered the inspector. Tr. 252. That activity put him where the notation was made, not at the rear perimeter of the shot pattern. Tr. 252. He had placed caps and boosters and then headed back to the truck. Tr. 252. That “X” shows the farthest point he had been from the truck. Tr. 253.

Stepp was headed towards the powder truck. Tr. 245. Mahon put his initials where he was located. Tr. 246. Mahon spoke with Stepp when he walked by Mahon’s truck. Tr. 247. Stepp did not make any comments about the truck. Tr. 247. Mahon did not ask Stepp about his truck. Tr. 248. Mahon’s tires were not chocked and Stepp did not write a citation. Tr. 248. Stepp walked by when he and Sullivan were going to the back of the shot to check the spoil pile behind Mahon’s truck. Tr. 251. Miller was not present when Stepp was on the site. Tr. 252. On cross examination, Mahon admitted he did not write any notes on the citation at issue here and was not asked to by Miller or Kidd. Tr. 250, 251. All of the testimony is based on memory. Tr. 251.

Mahon is not aware of any other citations for failure to chock tires on the bench. Tr. 248. However, it does not take any more than two or three minutes to chock the tires. Tr. 257. To do it, they usually scotch both back axles on one side of the truck. Tr. 257. But, on an average shot, they would have to put “them” (presumably chocks) down ten times at least. Tr. 257.

D. Mahon’s Testimony Regarding Loading Shot

Mahon heard the testimony on the process of loading shots and moving around on the bench and he agrees that this was how Respondent handled the task. Tr. 241. With respect to chocking tires, the truck moves around so much and the workers are bending over so much to pick up caps and boosters that are laid out in the prime hole that it is just a few more seconds of time consumed. Tr. 241. If an area is muddy, and Mahon has worked in areas with mud up to his knees, once the chocks are set it mud they vacuum seal and it can take a lot of energy to pull them out. Tr. 241. It is possible to strain or pull a muscle. Tr. 241, 242. Further, Mahon agrees with all of the testimony on record that the motive power must be running to load the shots with the truck. Tr. 249. In Mahon’s opinion the truck could not roll were it was sitting because it had a natural scotch under the front tries, meaning the ground was laid out with the front tires sitting against it. Tr. 249. Further the maxi-brake was set. Tr. 249.

E. Mahon’s Testimony Regarding the Maxi-Brake

Mahon is familiar with maxi-brakes, they are spring-loaded and once the air is taken off of the brakes, the spring engage to set the maxi. Tr. 249, 250. The maxi must be physically engaged by pulling a power valve on the dashboard of the truck. Tr. 250. To release the brake, the valve must be pushed in. Tr. 250. The maxi-brake only affects the two back axles. Tr. 251. Mahon knows the maxi-brake system had a canister replaced, but he does not remember when. Tr. 255, 256. This was a two-stage canister and it affects one brake on an axle. Tr. 256.

CONTENTIONS OF THE PARTIES

The Secretary contends that Citation No. 7163903 was validly issued, that the violation was reasonably likely to cause a fatal injury to one person, that Respondent was at least moderately negligent, and that the proposed civil penalty is appropriate. The Secretary argues that the citation is valid because Respondent’s employees parked a truck with loaded explosives and detonators, failed to turn off the truck’s motive power, and failed to block the wheels securely against motion. (Secretary’s Post-Hearing Brief at 10). The Secretary argues that the violation was S&S because it contributed to a discrete safety hazard (unattended movement by an explosive truck), the hazard contributed to had a reasonable likelihood of resulting in a serious accident (a collision or explosion), causing fatal injuries (crushing or trauma/burn injuries) to at least one person under continued normal mining conditions. Id. at 11-12. The Secretary argues that the Respondent’s actions were at least moderately negligent because Kidd was aware of the Secretary’s interpretation of 77.1302(j). Id. at 16-17. Finally, the Secretary argues that the penalty is appropriate in light of MSHA’s point system and the goal of deterrence. Id. at 17-18.

Respondent contends that Citation No. 7163903 was not validly issued, that the violation was not likely to cause a fatal injury to anyone, that it did not exhibit negligence, and that the proposed penalty is inappropriate. Respondent argues that the citation was not valid because the standard at issue deals with transportation and the truck was not “transporting,” it was at the bench. (Respondent’s Post-Hearing Brief at 9). Further, the truck was not parked. Id. at 11. Respondent argues the Secretary’s interpretation is not reasonable because it would render Respondent unable to remain in business. Id. at 13. Also, Respondent did not have fair notice of that interpretation. Id. at 14-16. Respondent also argues that this violation was not S&S because the citation was not valid; the truck could not move, so there was no safety hazard; and even if the truck moved it would not strike anyone or cause an injury. Id. at 16-19. Finally, Respondent argues that it was not negligent (or exhibited low negligence) because it had no prior notice of the Secretary’s interpretation and believed their training was adequate. Id. at 21.

FINDINGS AND CONCLUSIONS

1. Validity

Citation No. 7163903 was issued for an alleged violation of 30 C.F.R. §77.1702(j). The standard applies when (1) there is a vehicle containing explosives and detonators; and (2) that vehicle is parked. If both of those conditions are met, a violation occurs unless all of the following actions are taken: (a) the brakes are set; (b) the motive power is shut off; and (c) the vehicle is securely blocked against rolling. In this case, Respondent does not contest the Secretary’s claim that the truck contained explosives and detonators. Similarly, Respondent does not contest the Secretary’s assertion that the motive power was not shut off. As a result, the only issue that remains for determining the validity of the citation is whether the truck was parked.[14]

The parties agree on the relevant facts regarding the position of the truck and the location of workers. The truck was sitting on or near the edge of the drill pattern with the brakes set and the motive power running. Tr. 78-79, 87,100, 112-113, 243, 263-264, 293. Two of Respondent’s employees were in the area. Tr. 78-79, 242. Neither was in the cab but instead were between 65 and 175 feet from the truck. Tr. 100, 113, 216, 244-245.[15] The only issue is whether this constitutes “parking,” for the purposes of 77.1702(j).

“Park” is not a defined term in the Mine Act or in Title 30 of the Regulations. According to the Commission, “[i]n the absence of an express definition or an indication that the drafters intended a technical usage, the Commission has relied on the ordinary meaning of the word to be construed.” Island Creek Coal Company, 20 FMSHRC 14, 19 (Jan. 1998) citing Peabody Coal Co., 18 FMSHRC 686, 690 (May 1996), aff'd, 111 F.3d 963 (D.C. Cir. 1997). Further, “[w]here the language of a regulatory provision is clear, the terms of that provision must be enforced as they are written unless the regulator clearly intended the words to have a different meaning or unless such a meaning would lead to absurd results.” Id. at 18 citing Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citations omitted); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989) (citations omitted); and Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993).

Fortunately, the parties agree that “park” is an unambiguous term and encourage the application of its “ordinary-meaning.” (see Secretary’s Post-Hearing Brief at 10-11 and Respondent’s Post-Hearing Brief at 11-12). Unfortunately, they disagree about what actually constitutes that unambiguous definition. The Secretary cites The American Heritage Dictionary for the definition “[t]o put or leave (a vehicle) for a time in a certain location…” and argues that this definition applies to the truck in question. (Secretary’s Post-Hearing Brief at 11). Specifically, the Secretary argues that under this definition the truck was parked when the employees left the cab to walk onto the drill bench. Id. Respondent cites to both the Oxford Dictionary (“bring (a vehicle that one is driving) to a halt and leave it temporarily”) and the Merriam-Webster Dictionary (“to leave temporarily on a public way or in a parking lot or garage” and “to place, settle, or establish especially for a considerable time.”) to argue that the truck was not parked. (Respondent’s Post-Hearing Brief at 11). Specifically, Respondent argues that the truck was not parked because the employees had not “left” it, but instead frequently returned to the truck to retrieve supplies. Id. Also, Respondent claims employees would later be moving the truck in a stop-and-go fashion to fill the shot holes. Id.

“Where dictionary definitions must be relied upon to establish the meaning of a term, and those definitions show that a term as it is used in a regulation is open to alternative interpretations, the Commission has found the term to be ambiguous.” Wolf Run Mining Company, 32 FMSHRC 1669, 1680 (Dec. 2010) citing Island Creek Coal Co., supra. Given the alternative dictionary definitions provided by the parties, I find that the term “park” is ambiguous. “If… a standard is ambiguous, courts have deferred to the Secretary's reasonable interpretation of the regulation.” Island Creek Coal at 18 citing Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); Secretary of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C. Cir. 1990); and Bowles v. Seminole Rock Co., 325 U.S. 410, 414 (1945) (other citations omitted)). The Commission’s review of a Secretary’s interpretation is similar to the approach used by the courts. Id. at 19 citing Energy West, 40 F.3d at 463 (citing Secretary of Labor on behalf of Bushnell v. Cannelton Indus., Inc., 867 F.2d 1432, 1439 (D.C. Cir. 1989)); see also Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992). Therefore, I must accept the Secretary’s definition if it is reasonable.

An interpretation is reasonable when it is logically consistent with the language of the regulation and it serves a permissible regulatory function. Id. at 18-19 citing General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995). The Secretary’s interpretation (a truck is “parked” when no one is in the cab) is logically consistent with the language of the regulation. The Secretary’s definition does not subvert the purpose of the standard or create an absurd result in light of the language of the standard. Further, it serves a permissible regulatory purpose, namely protecting miner safety, by ensuring that a person is in the cab and in control of the truck if unsecured. Therefore, I find that the Secretary’s interpretation of the 30 C.F.R. §77.1302(j) is reasonable.

Respondent argues that the Secretary’s interpretation of the standard is unreasonable. First, Respondent argues that it cannot simultaneously shut down the engine and run the auger, therefore it claims the Secretary’s interpretation asks it to choose between complying with the regulations or maintaining its operation, because it cannot do both. (Respondent’s Post-Hearing Brief at 13). However, Respondent cites no authority for the proposition that a definition offered by the Secretary is per se unreasonable because it would prevent an operator from using its equipment. An interpretation is not unreasonable simply because it places a burden, even an extreme burden, on an operator.[16] Respondent’s claim regarding the difficulty it would face in complying with the standard as interpreted by the Secretary does not address whether the definition is logically consistent with the standard or serves a permissible regulatory function. Therefore, it is irrelevant to the issue of whether the interpretation is reasonable.[17]

The argument that the Secretary has been inconsistent in the application of this standard is more substantial. It is possible for the Secretary to be so inconsistent with his use of a standard that his interpretation must be considered unreasonable. See Thomas Jefferson University v. Shalala, 512 U.S. 504, 515 (1994) (holding that an agency interpretation of a statute or regulation that conflicts with a prior interpretation is entitled to considerably less deference than a consistently held agency view. Also holding that the party claiming an inconsistency exists bears the burden of proving that fact by “persuasive evidence”); see also Knife River Corporation, 34 FMSHRC 1109, 1127 (May 2012) (ALJ McCarthy). However, I do not believe that is the case here. Stepp testified that he has always applied the standard in this manner. Tr. 126-128. The fact that Respondent had not been cited in the past does not mean that the Secretary is inconsistent; it could simply mean that this was the first time an inspector noticed Respondent’s violation. Further, any confusion regarding the interpretation that occurred at the Austin Sales conference resulted from miscommunication rather than inconsistency on the part of the Secretary. No evidence was presented that showed any actual enforcement efforts made by the Secretary using a different interpretation of the standard occurred. Therefore, I do not believe that the Secretary’s interpretation is unreasonable as a result of inconsistency.

As the Secretary’s interpretation was reasonable, I find that the truck was parked. Because it has already been established that the truck contained explosives and detonator, the standard applies here. Finally, because the motive power was not switched off, I find that the citation is valid.

However, while citation is valid, the Secretary will be unable levy a fine unless Respondent received “fair notice” of the interpretation. Id. at 24. citing Energy West Mining Co., 17 FMSHRC 1313, 1317-18 (August 1995) and Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir 1986). Fair notice does not mean “actual notice,” instead “the Commission uses an objective test, i.e., ‘whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.’” Id. quoting Ideal Cement Co., 12 FMSHRC 2409, 2416 (November 1990). In applying the reasonably prudent person standard, the Commission takes into account a variety of factors, “including the text of a regulation, its placement in the overall regulatory scheme, its regulatory history, the consistency of the agency's enforcement, and whether MSHA has published notices informing the regulated community with ‘ascertainable certainty’ of its interpretation of the standard in question.” Alan Lee Good, 23 FMSHRC, 995, 105 (Sept. 2001) citing Island Creek Coal Co., 20 FMSHRC at 24-25; Morton Int'l, Inc., 18 FMSHRC 533, 539 (Apr. 1996); Ideal Cement Co., 12 FMSHRC at 2416; U.S. Steel Mining Co., 10 FMSHRC 1138, 1141, 1142 (Sept. 1988); and Al. By-Prods. Corp., 4 FMSHRC 2128, 2131-32 (Dec. 1982). Finally, the Commission has looked to accepted safety standards in the field, considerations unique to the mining industry, and the circumstances at the operator's mine. Island Creek Coal Co., 20 FMSHRC at 24-25; BHP Minerals, 18 FMSHRC at 1345, citing U.S. Steel Corp., 5 FMSHRC 3, 5 (Jan. 1983).

Respondent argues that it did not receive “fair notice” because it had never been cited, or heard of others being cited, for this condition and had not received any other form of actual notice. (Respondent’s Post-Hearing Brief at 14-16). Respondent also asserts that MSHA confused the matter at the conference concerning the Austin Sales citation when it claimed Respondent could comply with parts of the standard. (Id. at 16). With respect to prior notice through citations, I recognize that Austin Sales, a company with the same parent corporation as Respondent, was cited for the same condition. (G-1; G-2; Tr. 50-56). Kidd acts as safety director for both companies. Tr. 40, 269. A reasonably prudent person familiar with the mining industry would have recognized that this citation signaled MSHA’s enforcement posture with respect to 77.1302(j). Further, even if MSHA provided confusing information regarding how to comply with the regulation, Respondent could not have reasonably believed it was permissible to continue to operate as though the Austin Sales citation had never been issued. Perhaps more importantly, the standard has been consistently applied in this manner. As noted supra, Stepp testified that the standard he has always been applied in this manner. Tr. 126-128. Stepp was positive that he had cited other operators for this same condition. Because the interpretation of §77.15029(j) was widely applied in the mining industry, a reasonably prudent person familiar with the mining industry would know the requirement. Respondent was given “fair notice” that its actions would not comply with 77.1302(j) and chose to ignore that notice. Therefore, a penalty is appropriate.

2. S&S

Stepp marked the violation cited in Citation No. 7163903 as S&S. In order to establish that a violation is S&S, the Secretary must prove:

(1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature.

Mathies Coal Co., supra.

As previously shown, the citation is valid, meaning there is an underlying violation of the mandatory safety standard. The Secretary states that the violation in this case met the second factor of Mathies because it contributed to a safety hazard. According to the Secretary, that hazard was an unattended, rolling explosives truck, with miners in the area. (Secretary’s Post-Hearing Brief at 13). The Secretary claims that the truck could strike a miner, causing an injury. Id. Further, the truck could roll over the explosives causing a detonation. Id.

However, I find that under the circumstances present here, the violation did not contribute to a safety hazard. Simply put, a runaway truck was very unlikely in this situation for several reasons. First, there is the terrain; Respondent’s witnesses testified that the bench here was very level. Tr. 32-33, 231. Even Stepp admitted that the area was level with the road (although he said the truck could still roll). Tr. 118. In addition, the front tires of the truck were sitting in a depression. All of Respondent’s witnesses described the depression as a spot where the front of the shot and the access road sloped together to form a “v.” Tr. 201, 246, 262-263, 265. It would not be possible for the truck to roll out of that depression.[18] The Secretary disagreed that the tires sat in a depression, but could not refute Respondent’s evidence.[19]

In addition to the terrain, Respondent has established that the fail-safe maxi-brakes were set at the time of the citation. See Citation No. 7163903 at Petition of the Secretary of Labor for Assessment of Civil Penalty at 10; see also Tr. 32, 213. The brakes provided 2,000 pounds per square inch of resistance. Tr. 271. The brakes on the cited truck had been examined by Anderson and Mahon on the morning of the citation and they confirmed at the hearing that the brakes were functioning properly. R-14; Tr. 30-31, 237-239, 267. Kidd testified that if someone were to try to tow this truck while the brakes were set, the bumper would come off before the truck moved. Tr. 62.[20]

Finally, past evidence and experience suggests that this condition was not a safety hazard. Respondent has been in business for 18 years and has no history of runaway trucks. Tr. 64, 213. In fact, Stepp stated he had never heard of a fatal accident involving a vehicle with unchocked tires. Tr. 107. He stated that the area around the truck that presented no hazard of the truck rolling out of control. Tr. 102-103. He also stated that the truck was not in a position or condition to be a threat to life. Tr. 117. Taking all of these factors together, I find that this violation did not contribute to a safety hazard. Only some sort of completely unforeseeable and unprecedented catastrophic event could cause the truck to roll away in this situation. If such an event were to occur, the fact that the motive power was on, and §77.1302(j) was violated, would not contribute to that safety hazard. Therefore, this violation was not S&S.

However, in finding this particular circumstance not to be S&S, I do not intend to make a wider ruling than necessary. It is entirely possible, perhaps probable, that a §77.1203(j) violation on a blasting pattern could contribute to a safety hazard and could be S&S. Perhaps even at this mine and in this situation if the brakes had not been set, the terrain had not been smooth, the tires not placed in a depression, or the truck had been near a highwall then this may have contributed to a hazard. However, I do not believe that this particular violation would cause the truck to move and therefore there was no hazard.

4. Gravity

For the same reasons I found that the violation did not contribute to a safety hazard, I find that the event against which the standard is directed would be very unlikely to occur. The truck was on a flat surface, the tires were placed in a depression, and the fail-safe maxi-brakes were set. Therefore, the truck would not roll away. If the event were to occur, the Secretary argues that at least one miner would suffer a fatal injury. However, Stepp testified to the types of injuries he would expect would be broken feet, broken legs, and, at worst, a broken back. Tr. 106-107. Further, he only expected those sorts of serious injuries on a four-percent grade; a grade the Secretary has not established existed here. Tr. 106-107. At a lesser grade and slower speed, Stepp stated “there is not going to be much damage.” Tr. 106, 107. Further, Stepp stated he is not aware of any fatal accidents caused by inadequately secured vehicles. Tr. 107.[21] Lobb stated that, under certain circumstances, this condition could lead to a fatal accident. [22] However, I credit the testimony of Stepp, an Authorized Representative who actually witnessed the conditions cited, over Lobb’s testimony. Further, Respondent’s witnesses dispute the possibility of any accident. Tr. 64, 213, 275. Therefore, it would be unreasonable to find that a fatal injury could result from this violation. At worst, if a truck were to roll it could strike one miner and cause permanently disabling injuries.

4. Negligence

Citation No. 7163903 is marked for moderate negligence. As previously stated, moderate negligence exists where the operator knew or should have known of the violative condition or practices, but there are mitigating circumstances. 30 C.F.R. § 100.3(d). Low negligence is differentiated from moderate negligence by the fact that there are considerable mitigating circumstances. Id. The Secretary argues that this violation showed at least moderate negligence because Kidd was informed of the Secretary’s interpretation of the standard, but did not take action to ensure that Respondent complied. (Secretary’s Post-Hearing Brief at 16). However, as a whole, the mitigating factors in this case are considerable. Those factors include the fact that Respondent had not been cited for this condition in the past. While it is true that its sister company, Austin Sales, had been cited for this condition in the past, the evidence suggest that MSHA did an inadequate job of explaining to Respondent what actions needed to be to ensure compliance, causing a miscommunication. Further, Respondent took several precautions to ensure that, even if it did not comply with 30 C.F.R. § 77.1302(j), the danger associated with that standard (a rolling truck) could not occur. These precautions included setting the fail-safe brakes and parking the truck in a depression. As a result, I find that Respondent exhibited only low negligence.

4. Penalty

Under the assessment regulations described in 30 CFR §100, the Secretary proposed a penalty of $8,893.00 for Citation No. 7163903. While the Secretary’s proposal was duly considered, under 30 U.S.C. §820(i), the power to assess a penalty is vested with the Commission. That law also dictates several factors be considered before an assessment is made. I will now evaluate each of those factors in turn with respect to proposed penalty to Citation No. 7163903:

(1) The Operator’s history of previous violations – Respondent was cited twice under Section 77.1302(j) in the 15 months preceding this violation. (G-4, pp. 3, 59). However, as discussed earlier Respondent had not been cited for the standard while on the bench, although Austin Sales was cited once.

(2) The appropriateness of the penalty compared to the size of the Operator’s business – Respondent operates in several states and posts 369,759 hours of operations annually. As a result, it is a relatively large contractor.

(3) Whether the Operator was negligent – As previously shown, the operator was exhibited low negligence

(4) The effect on the Operator’s ability to remain in business – The parties have stipulated that the citations at issue here would not affect Respondent’s ability to remain in business.

(5) The gravity of the violation – As previously shown, this violation is unlikely to cause an injury, but if it did it could result in permanently disabling injuries to one person.

(6) The demonstrated good-faith of the person charged in attempting to achieve rapid compliance after notification of a violation – The evidence shows the condition was rapidly abated in good faith.

As I have decided to modify the negligence of this citation from “Moderate” to “Low,” and the gravity from “Reasonably Likely” and “S&S” to “Unlikely” and “Non-S&S.” I believe that it is necessary to also reduce the proposed penalty. Considering all of the factors listed above, Respondent is ordered to pay $403.00 with respect to this citation.

Order

Respondent, Virginia Drilling Company, LLC, is hereby ORDERED to pay the Secretary of Labor the sum of $403.00 within 30 days of the date of this decision.[23]

/s/ William S. Steele

William S. Steele

Administrative Law Judge

Distribution:

Benjamin Chaykin, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 22^nd Floor West, Arlington, VA 22209.

Todd C. Meyers, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513

[1] CDL Stands for “Commercial Driver’s License” and Class-B means he is permitted to drive 10-wheelers but not 18-wheelers, which are reserved for those with Class-A licensure. Tr. 262.

[2] Respondent exhibits will hereinafter be referred to as “R” followed by the number.

[3] A “chock” is “[a] block or wedge placed under something else, such as a wheel, to keep it from moving.” The American Heritage Dictionary (5th Ed. 2011).

[4] The blasting area is a restricted area that no one may enter, including the blaster and helper. Tr. 46. According to MSHA standards, the blast area is determined by the blaster. Tr. 46. The truck remains in that blast area. Tr. 46. The blast area might force miners to stand 200 feet from the truck while the truck’s tires are un-chocked. Tr. 46, 47.

[5] Government exhibits will hereinafter be referred to as “G” followed by the number.

[6] A parking area is a secured spot determined by the blaster and cordoned off from unauthorized entry. Tr. 65. There are different areas for different kinds of equipment. Tr. 65. This truck would be a shot loader. Tr. 65.

[7] The record was held open to allow redacted inspectors notes (G-3) to be entered into evidence. Tr. 109.

[8] Prill is a form of ammonium nitrate and fuel oil. Tr. 93 (Lobb Speaking). Drillers will drill a hole and put in a primer cap and then bring in the prill truck and fill the hole with prill. Tr. 92.

[9] There are several different types of prill, or ammonium nitrate, and they are named based on the way they are constructed. Tr. 185. Regular flake-type ammonium nitrate would be fertilizer. Tr. 185. When they drop ammonia gas out of the pallets, they produce explosive in little round balls, called prill. Tr. 185. There is also liquid ammonium nitrate that is used as an oxidizer. Tr. 185. Prill has pores in it that allow it to absorb fuel oil and that makes it a blasting agent. Tr. 185. Prill are just little round things, that ammonium nitrate is poured into. Tr. 185.

[10] Once the detonator and the booster are put together they are called a primer and they are put in the hole. Tr. 163.

[11] “Bench” and “Coal Pit” are field terms. Tr. 200. The only difference between them is that the bench needs to be removed, and the pit actually contains coal. Tr. 200. There was no split face highwall here; there was highwall on the right, spoil to the left, shot behind it, and an open face to the front, a very short face. Tr. 200, 201.

[12] It is unclear from the testimony which pictures are being referred to at Tr. 206 and 207.

[13] Wet bags are 40-pound six-and-a-half-by-40 bag of emulsion. Tr. 247, 248. They are used for loading wet holes. Tr. 248. Wet holes are ones that have water in them. Tr. 248. ANFO cannot go into a wet hole because its low density causes it to float. Tr. 248.

[14] The Secretary does not contest that the brakes were set. (Secretary’s Post-Hearing Brief at 10). The parties disagree as to whether the truck was “blocked securely against rolling.” However, since the motive power was not shut-off, it is not necessary to reach that issue in determining whether the citation was valid.

[15] The Secretary argues that the miners were 175 feet away and Respondent argues they were only around 60-75 feet. I do not believe this is a material difference, as the material issue is whether a truck is “parked” when no one is in the cab. Therefore, it does not matter if a person is 60 feet or 175 feet from the cab, the issue remains the same.

[16] An interpretation of reasonableness can include analysis of the overall statutory scheme and the purpose of the Act as a whole. See Morton Int'l, Inc., 18 FMSHRC 533, 536 (Apr. 1996). While there is some concern in the Mine Act regarding the ability of the operator to stay in business, that concern is relatively minor compared to the primary goal of protecting miners. In short, if an operator’s method of business is patently unsafe, the Commission does not have to protect that business at the expense of miner safety.

[17] Further, Respondent argues too forcefully about the burdens it faces based on this interpretation of “parked.” Respondent can continue to drill and blast while complying with the regulations by simply ensuring that someone is in the cab of the truck unless the engine is off, the brakes engaged, and the tires are blocked from movement. Miller even testified that in areas with a steep grade he already ensures that a miner is sitting in the cab. Tr. 215, 216

[18] Incidentally, this means that the tires were “blocked” for the purposes of 77.1302(j).

[19] The Secretary’s only eyewitness stated that he had no basis to dispute the assertion that the tires were in a depression. Tr. 122.

[20] There is evidence that the Government places great reliance on these fail-safe maxi brakes. Anderson testified that the Department of Transportation requires the fail-safe maxi brakes to be engaged when the driver is out of the truck. Tr. 263-264. In addition, Kidd recalled an MSHA training video calling the brakes “fool-proof” Tr. 61-62

[21] Stepp checked the box on the citation for “fatal.” However, I find that his testimony at hearing effectively discounted any chance for a fatal injury.

[22] The possible scenarios involving fatal injuries cited by Lobb include explosions caused by running over the exposed surface explosives or primers. Tr. 141, 147, 163, 164. He stated this sort of event caused a serious injury a few years ago, although he admitted that the accident involved a pick-up instead of an explosives truck. Tr. 141, 178. Another scenario cited by Lobb would be if the truck fell on the detonators. Tr. 149, 156. Still another scenario involves the detonator wires moving half an inch out of the shock tube and triggering an explosion. Tr. 141, 149. Finally, Lobb testified that the battery wiring or a collision could cause a fire. Tr. 151, 156. However, he admitted this was not a high probability event. Tr. 156.

[23] 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