FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE. N.W. SUITE 520N

WASHINGTON, D.C. 20004-1710

(202) 434-9933

April 5, 2013

DECISION

Appearances: Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, for the Secretary of Labor;

                        R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for the Respondents.

Before: Judge Moran

           In this matter arising under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act,” or “Act”), several haulage cars traveled completely out of control for nearly a mile at the Respondent’s Oak Grove mine. At issue are whether the Order, issued in the wake of that runaway cars event, which Order was based upon a previously issued notice to provide safeguard, is valid. That determination depends upon the validity of the safeguard and whether that safeguard applied to this event. If the Respondent’s challenges are rejected and the safeguard and order are affirmed, additional issues then come into play. Those involve whether the Order was properly designated as “significant and substantial” and whether the named individual respondent, Mr. Donny Bienia, is accountable under section 110(c) of the Act.

For the reasons which follow, the Court affirms each of the Secretary’s contentions in these matters.

FINDINGS OF FACT

           On May 24, 2010, Mine Safety and Health Administration (“MSHA”) Inspector Gregory David Willis was at the Respondent’s mine, conducting a regular inspection. As this is a large mine, it takes a full quarter (i.e. three months) to inspect it and at that time Inspector Willis was one of the resident inspectors there. Tr. 28. At some time after the usual noon lunch time, as the Inspector prepared to eat, he opened his lunch box and found a handwritten note inside it. He recognized the note as a complaint, that is, a section 103(g) complaint under the Mine Act.

           The complaint was anonymous but the Inspector took the additional step to sanitize it, so that mine personnel would not be able to discern the individual who made the complaint. Tr. 28-29. To accomplish that, the Inspector rewrote the complaint to capture, but not distort, its essence. As this was not part of his regular E01 inspection, he recorded the 103(g) complaint as a separate event, for which it was designated as an E03 matter. Tr. 31.

           Inspector Willis then began, that same day, his investigation for the newly arisen 103(g) complaint. Tr. 32. He gave mine officials and the UMWA representative the first page of what is now Exhibit 7, reflecting his handwritten recopying of the note’s assertions. The individuals given what later became Exhibit 7 were listed on the first page of the Inspector’s notes for his 103(g) investigation, as reflected in Exhibit 3. The Inspector then spoke with Dave Ingle, who at that time was the mine’s day shift general foreman. Mr. Ingle advised the Inspector that he did have knowledge of the event described in the 103(g) complaint. Tr. 36. The Inspector then conducted his first interview concerning the matter, beginning with Andrew Teel, who was an outby utility man on the Main North 3 section. The track involved was the main line at the mine. Tr. 55. Thus, it is the main line for moving men and materials in and out of the mine. Mr. Teel informed the Inspector that he was directly involved with the incident. Teel advised the Inspector that at the time of the incident he needed to “spot,” that is to locate or move into position, “haulage” or “flatcars.” Such cars are used to haul supplies into and out of the mine. The haulage cars or flatcars were also described during the hearing as “supply cars” and “rail cars,” but the terms all refer to the same cars in issue here.

           However, Mr. Teel had a problem which was in the way of accomplishing his goal of the needed “spotting” because he had no locomotive or anything else to couple up the cars so that they could be moved. Tr. 40. As the rail cars are not self-powered, they are moved by another piece of equipment. Typically, this will be done by mantrips and locomotives; both of which are rail mounted and equipped with couplers. Tr. 45. Previously, the day shift had “spotted” two of the flatcars to be unloaded. This was able to be accomplished because those cars were in line with the crosscut. By being located in line with the crosscut, there was sufficient space so that the cars could be accessed for a “low track,” which is a small forklift, to come in from the side and unload the supplies. Tr. 41. Exhibit 9, which is a sketch created by the Inspector, helps to illustrate and to gain a general idea of the cars and their location before they became runaways. The location of a “car stop” is also depicted in the drawing as between the 3^rd and 4^th cars. As the name suggests, a “car stop” has the purpose of keeping rail cars from moving. This is accomplished by securing it against a railcar wheel. In the Inspector’s sketch, the numbers 1 through 6 represent the supply cars at the scene, with car number 1 representing the most outby position. Tr. 46. Despite its shortcomings, the drawing is useful, in the Court’s view, because it depicts the essential problem: cars had to be moved up to a crosscut in order to provide sufficient space to access the supplies on them, so that they could be unloaded.

           Thus, the problem faced by Mr. Teel was, after a supply car was unloaded, the next car had to be moved into the crosscut, so that the low track could access it and unload the supplies on it. Mr. Teel went to Mr. Donny Bienia, his supervisor, for help in accomplishing this task. Tr. 48. Mr. Bienia was at that time operating a “scoop,” which is a small front end loader. Tr. 49. Instead of a bucket, this scoop was equipped with a push out blade, which blade allows it to do just that – push material. Working together to accomplish the task of moving the next supply car so that it could be lined up with the crosscut, Mr. Teel hooked up the wire rope from the scoop’s winch to the side rail of the number 3 rail car. That wire rope or “cable” has a hook with a safety catch on it and it was that hook that was attached to a “side rail’ of the number 3 rail car. The side rail is simply a rail running down the sides of the car. Its purpose is to secure tie down straps, or “binders.” By using the tie down straps and securing them to the side rails, items being carried on the rail car can be secured. By way of an analogy, Inspector Teel advised that it was essentially the same arrangement used by18 wheeler highway trucks to secure their loads. Tr. 52. Accordingly, as this was not a tie down and side rail arrangement, securing the hook to a side rail is not the normal use of a side rail.

           Upon attaching the hook to the side rail, Mr. Teel then removed the car stop. As shown in the Inspector’s drawing, there was a second car stop about 30 feet outby the number 1 rail car. The Inspector was clear that the car stop depicted between the number 4 and number 3 cars was removed and, upon doing that, the two men began to let the cars move. This was done by Mr. Bienia, as he was operating the scoop with its winch, connected as it was to a car’s side rail. Tr. 54. Mr. Teel told the Inspector that after the hook was attached to the side rail, the stop was removed from between the No. 3 and No. 4 cars and the cars began rolling away. Tr. 56. It was later determined that this occurred because the side rail weld broke on the car where the hook was attached. Tr. 56. Once that happened, the hook was no longer holding the car to which it was attached.

           Inspector Willis also interviewed Robert Tartt, the mine’s headerman. Tr. 57. He worked at a belt heading, a location where one belt discharges to another one as the coal is transported out of the mine. That belt line is separated, one entry over, from the track entry. At the time of the incident, Tartt happened to have gone over to the track entry to get some bags of rock dust. This was outby the area where the loose cars were now traveling and it was then that he heard the sounds of a trip coming down the track. However, when he looked in the direction of the sounds, he saw no block lights. Tartt was close to an area where the track curves. Even though he saw no light, his ears informed him that something was coming quickly, so he broke and ran across the track, seeking safe harbor in a short spur track. Fortunately, Mr. Tartt made it to the spur track before the cars went by him on the track “running faster than Amtrak,” as he expressed it, by which analogy he of course meant they were moving very fast. Tr. 65.

           Inspector Willis also interviewed the aforementioned Mr. Dave Ingle, who is the mine’s general foreman. When the Inspector first spoke with him, Mr. Ingle pulled out a notepad and told the Inspector that his notes reflected that the event did occur. Tr. 67. He then advised that the mine had done an investigation of the incident. This was conducted by Ingle and included Mr. Fisher, Mr. Bienia, Mr. Teel and Mr. Hafera. Tr. 67. The mine’s investigation was made on May 13, 2010 and it included conclusions as to how it would remedy this to avoid a recurrence. Tr. 69.

           On the following day, May 25^th, Inspector Willis returned to the mine and issued the section 104(d)(2) Order in issue in this proceeding, Number 8518376. Tr. 70-71. Government Exhibits 2 and 4 reflect the safeguard upon which that Order relies, Number 3013658, issued March 25, 1991. Although he did not know if a safeguard had been issued at the mine for this problem, the Inspector figured there was one because he knew “we don’t move cars like that . . . [as it’s] an unsafe way to move cars.” Tr. 73. He expressed that moving cars in the manner done in this instance was not a common practice and that, if no safeguard had been issued, he would have issued one then. Inspector Willis explained that the method used at the mine in this instance was an unsafe practice; “if you’re go[ing] [to] move cars, you need . . . a sure way of holding the cars. In other words, couplers.” Tr. 74. Couplers in a mine are essentially what one visualizes with surface trains. That is, it is a mechanical lock, which is spring loaded. With these, they can be unlocked only by manually pulling a lever, which then releases its spring. That action allows the two halves of the couplers to come apart. Tr. 74-75. The Inspector added that, “[f]or locomotives or track-mounted equipment you will have a coupler and, plus, you’ll have two safety chains.” Tr. 74.

           As compared to this incident, where the cable and hook were used, the Inspector expressed that the arrangement was an unsafe practice and that the car chock, being placed some 30 feet away, did nothing to ameliorate the problem. A car chock, or “wheel chock” as it sometimes called, is to be placed right under the wheel, not some distance away from it. Tr. 75. When not placed right under the wheel, but rather some distance away, a vehicle with sufficient momentum will run right over such a chock, as happened here. Inspector Willis added that in the instance which prompted the issuance of the original safeguard, a 5/8ths cable with a safety hook was used. Further, unlike when a coupler is used, there were no safety chains employed as a back-up mechanism.

           In issuing the section 104(d)(2) order being litigated here, the Inspector stated that the safeguard had been in effect for some 19 years and he noted that a member of management was operating the scoop involved with the incident. Tr. 80. The Inspector expressed that he viewed Oak Grove as having violated that safeguard because it required “only equipment such as track motors and other approved equipment being used in moving supply cars on the track.” Tr. 81. A scoop would not constitute such “other approved equipment” for moving a supply car. Tr. 82. Accordingly, Inspector Willis affirmed that use of a scoop would be in violation of this safeguard. Tr. 82. The Inspector advised that the hazard in this instance was “the running away of cars with no means . . . no sure means of controlling them.” Tr. 83. He further explained that the safeguard calls for track motors or other approved equipment, which in his view called for “other track-mounted equipment that [one] can actually have a rigid coupling and approved coupling ...” Tr. 83.

           Although objected to twice, the Court allowed the Inspector to answer with his view as to the hazard identified in the safeguard. He expressed that it is “[m]oving cars - - moving supply cars with a wire rope, or a cable, whatever you want to call it, and the hazards being there, . . . you don’t have a piece of equipment on track with the cars which makes that piece of equipment in line with the cars, whether it be on one end or the other, rigidly coupled to the cars. Plus, the safety chains that are probably required in another safeguard, if I had my guess, that are also attached. So you’ve got - - you’ve pretty well got a means of holding those cars and controlling those cars.” Tr. 84.

             Referring to the particular safeguard cited by Inspector Willis here, and the words employed several years ago by the inspector who originally issued that safeguard notice, back in 1991, Counsel for the Respondent read into the record that “ . . . two long wall utility men [were] observed moving three flatcars of supplies on the long wall section track with a diesel powered scoop, and . . . [t]hey were pulling cars with three-eighth inch diameter rope.” Tr. 95. Inspector Willis agreed that not all scoops have winches and he did not know if the scoop in 1991 did, or did not, have a winch.

           The Inspector did agree that in 1991 the miners were using a wire rope as a substitute for a coupler. Tr. 98. He also agreed that the safeguard did not state that its purpose was to prevent runaway cars, nor that it was issued to deal with a wire rope breaking, nor with miners getting between a scoop and cars. Tr. 99. Inspector Willis, upon agreeing that he was “[f]airly” familiar with MSHA’s program policy manual and upon being directed to Respondent’s Ex. 3 at page 3 and the general haulage criteria, also agreed that the Manual provides that the inspector should document the conditions which provide the basis for the issuance of the safeguard notice and identify the nature of the hazard to which it is directed. Tr. 101.

           Although Inspector Willis agreed with counsel for the Respondent that the safeguard notice did not expressly identify the nature of the hazard, he cogently noted that he didn’t know what the policy manual provided about that subject at the time that safeguard was issued, back in 1991. Tr. 102. The Inspector then added:

I think what a lot of people don’t understand is the people that write these safeguards, they’re not lawmakers as in judicial law as in trained. It’s coal miners writing safeguards to coal miners and with that being said, we all understand what the safeguard means. What it says. We all understand about using cables in mines. We all understand how your are supposed to move cars around if that makes sense [to the questioner, Respondent’s Counsel] . . . [however, he agreed that the inspector who issued the safeguard] did not expressly state what the hazard would be. No, sir, he sure did not.”

Tr. 102-103. (emphasis added). 

           The Court inquired of Inspector Willis what is was about the 1991 safeguard that caused him to conclude that it applied in this instance. The Inspector expressed that it was the second paragraph of the safeguard that caused him to reach that view. Tr. 109. He elaborated that “[i]t fit the scenario the best out of the safeguards that I read that was at the mine.” Tr. 110. He felt that it was an unsafe practice and that caused him to issue the paper, but he did not know immediately if there had been a safeguard issued. If no safeguard had been issued, he would have issued one. Tr. 110. The Inspector further explained that his order itself explained his reasoning, noting that it “[r]equires only equipment such as track motor or other approved equipment to use in moving supply cars on the track in the mine.” Tr. 111. For the most part, this would mean using the diesel (or a battery-powered) locomotive, but mantrips with couplers and safety chains could be used to move cars around too. Tr. 111-112. The Inspector confirmed that, to comply with this safeguard, it was essential that the equipment be track mounted. Tr. 113.

           Additional questions were propounded concerning the Inspector’s Order, relating to the hazard and level of negligence. The Inspector marked the gravity as “highly likely” because he concluded that the harm could have occurred. By that, he meant if the practice cited were to continue, it would be highly likely that injuries would result. He marked it as potentially fatal, because of the hilly terrain underground. In the event of a runaway, with more hills, there would be increased speed and more blind spots. Tr. 115. Further, this event occurred on the main line track and so it is where everyone that works at the mine travels during a day. Tr. 116. Further, the Inspector’s conclusions regarding this were based on what actually occurred, not some speculation as to what could have happened. Tr. 116. Thus, the Inspector took note that the cars ran away for some “3900 feet up and down hills.” Tr. 116. What is more, one of the runaway cars was loaded with 20 foot sections of two-inch steel waterline. Tr. 116. Some of those pieces of steel waterline came off a car near where Mr. Tartt fled for safety. Tr. 116. Further, if that car had struck another mantrip those steel pieces would’ve effectively become “missiles.” Tr. 117. Some of Oak Grove’s mantrips are open; that is, not all of its mantrips are enclosed. It was also possible that Mr. Tartt could have been in the track or right next to it and not heard the oncoming cars. He also could have been struck by flying steel pieces. Fatal consequences could have resulted. Tr. 118. In determining that the violation was S&S, the Inspector felt the accident was highly likely to occur and that injuries would be of a reasonably serious nature as well. Tr. 118. In marking the violation as an unwarrantable failure, that determination was based on the fact that Mr. Bienia was operating the scoop and as he was in a management position, he should have been aware of the safeguards’ requirements. Tr. 119. The Court agrees with and adopts the Inspector’s negligence and gravity rationale. Oak Grove and Mr. Tartt, and Mr. Bienia too, for that matter, were extremely fortunate that no fatal or maiming injury occurred here.

            The Respondent called Donald Andrew Bienia, who is presently the mine’s outby supervisor. Tr. 132. Along with Oak Grove, Mr. Bienia is a Respondent in this proceeding. At the time of the incident Mr. Bienia was a face foreman. As part of his testimony, referring to prior employment at another mine, at some unclear point in time, Mr. Bienia contended that mine cars were moved using wire rope and a winch. Tr. 136. The Court would simply note that this practice, alluded to by Mr. Bienia in his answers, was some 35 years prior to the accident involved here. Further, an unsafe practice isn’t transformed into something else simply by claims that it had been done before. Only the Inspector actually spoke to the safety of the practice carried out by Mr. Bienia and Mr. Teel. The Inspector effectively stated that it was unsafe and that it was well understood by the mining community to be an unsafe practice. This was not refuted, as no one among the Respondent’s witnesses asserted that the practice engaged here was a safe one. Of course, the events here also underscore the accuracy of that view.

            Mr. Bienia described the idea for the winch and wire rope arrangement as one arrived at mutually between Mr. Teel and him. Continuing with his recounting of the event, Mr. Bienia stated that on May 12, 2010, Mr. Teel asked him for some help in moving mine cars. Tr. 137. According to Bienia, Teel needed the fourth car moved so that he could access and remove an electrical box on that car with his low track. Bienia then drove the scoop to the location and turned the scoop on an angle with its bucket facing outby. Tr. 138. The cars, as sketched on GX 9, had the electrical box on the 4^th car and, beginning with the first car outby, that car had the aforementioned pipe. According to Mr. Bienia, the 2^nd and 3^rd and 5^th cars were empty, while the 6^th car had miscellaneous items. The Court would note that as half of the cars were empty, this testimony only serves to highlight how woeful the rope and winch arrangement was; the cars could not be held, though half of them were empty.

            In terms of the car stops, Mr. Bienia stated that there was one between the 3^rd and 4^th cars, holding the cars in position, with the fourth car resting against that stop. Tr. 140. There was a second car stop about 30 feet outby, and both of these car stops are reflected in GX 9. The plan was to move the fourth car about ten feet outby so that it could be accessed for unloading. Tr. 141. When asked if the plan was to push or instead to pull the cars with the scoop, he stated that he “pulled [the scoop] in on an angle so that we could use the winch rope and hook it to the third car. Winch up enough, take the stop out of - - that was between the third and fourth car, and then let the winch off about ten feet to where Mr. Teel could [access the electrical] box . . .” Tr. 141. They needed to pull the cars first because of their collective weight against the car stop between the third and fourth car. Tr. 141-142. All six cars were connected. Tr. 142. Mr. Teel hooked up the rope to the car, while Mr. Bienia ran the winch. As he was in the scoop, Mr. Bienia could not see just where Mr. Teel attached the hook on the car. Tr. 157.

            Mr. Bienia was able to pull the cars up sufficiently to allow the car stop to be removed, but as soon as they did that, the cars began moving outby. Tr. 142. Shocked over that development, Bienia turned his scoop into the cars to try to stop them from continuing to move. However, in this attempt, the scoop’s bucket caught the uncoupler handle between the third and fourth car. While the scoop held the 4^th, 5^th and 6^th cars, the other inby cars, numbers 1 through 3, continued moving. Tr. 143. He then got out of the scoop and began running to catch up to the moving cars. This response was inherently dangerous, as Mr. Bienia was running alongside the moving cars while simultaneously looking for something to throw under a car wheel, such as a crib block or a piece of timber. Tr. 144. In fact, Mr. Bienia subsequently acknowledged that running alongside the 5 ton rail cars, and seeing if there was something he could throw in front of the runaway cars, was hazardous for others to attempt, but he somehow believed that he could safely do it. Tr. 149. Unsuccessful in finding a means to stop the cars’ movement, the cars then began to pick up significant speed, so much so that he could not keep up with the runaway cars anymore. Tr. 144. At that point both Bienia and Teel had used mine phones to alert the mine of the runaway cars.

            Despite all that transpired, Mr. Bienia thought the “scoop, winch rope, and hook” arrangement was a safe procedure, as he had used that technique before to spot cars at another mine. Tr. 145. When asked if, under this method, the scoop was being used to push or pull the cars, Bienia informed that “[t]he winch was going to do all the work.” Tr. 145. The Court would note that this is a matter of semantics. While true that the winch was intended to pull or release the rope, it was a part of the scoop, and therefore indistinguishable from the scoop.

            Mr. Bienia testified that at the time of the incident’s occurrence, he had no awareness of the safeguard in issue. He stated that he was unaware of the subject safeguard and, for that matter, any safeguards, at least as practices described as “safeguards.” Instead, he relied upon what he described as “common practice and common understanding.” Thus, while he knew about “practices,” he didn’t know them to be “safeguards” as that was a new term to him. Tr. 154-155. Further, he was unable to recall that he was ever advised to become familiar with the safeguards at the Oak Grove Mine. Tr. 157. In an attempt on redirect to rehabilitate the witness’ testimony, Mr. Bienia, agreed that he knew many “rules” at the mine, though he did not know of the term “safeguard” and that he knew of no “rule” prohibiting moving supply cars with a rope and a winch.

            John Henry Hedrick, III was also called as a witness. Concerning the incident here, Mr. Hedrick stated that he was part of the investigation which followed. Paul Hafera, David Ingle, Mr. Teel, Mr. Bienia, Tom Fisher, evening shift foreman, and Tom Wakefield, the miners’ representative for the investigation, were involved with the investigation as well. In the course of his investigation, Mr. Hedrick observed that both Mr. Teel and Mr. Bienia displayed a “questioned look” when he alluded to the term “safeguard,” but that they may have recognized, apart from the term, what a safeguard covered. Tr. 171. After the runaway cars incident, MSHA prepared a list of the mine’s safeguards and they were explained in shift meetings as the “safety rules” and where those rules could be found at the mine. Tr. 172. With some assistance from Respondent’s Counsel, Hedrick agreed that people at the mine knew such rules existed but that they didn’t know them by the term “safeguard.” Tr. 172. Continuing, Hedrick affirmed that Teel and Bienia knew the substance, that is, how to move cars on the track, but did not apply the specific word “safeguard” to that process. Tr. 172. Thus he maintained that Teel and Bienia knew what one could and could not do when moving cars on a track. Tr. 172.

            As to the issue of using a winch cable to move cars, as was done here, neither Teel nor Bienia understood it was a prohibited practice. Hedrick too, after reviewing the safeguard in issue, also concluded that it did not apply to the circumstances cited here. This conclusion was based on his view that “[t]he safeguard referenced moving cars on the tail track, pulling cars out with a scoop and a rope. The rope takes the place of a coupler and positioning cars either out of a kickback or out of a - - off the tail track.” Tr. 173. Thus, he viewed that as different from this occurrence, where they were spotting cars. Tr. 173. As he expressed it:

                        if [one] put the scoop in front of the cars and use[d] the scoop to

                        move the cars, either push or pull them with a rope, or whatever,

                        that is what is addressed by the safeguard.

Tr. 174.

            Accordingly, it was Mr. Hedrick’s opinion that the safeguard was addressing spotting or moving a car on the “tail track.” Tr. 177. Later, Mr. Hedrick stated that the safeguard prohibits using scoops and wire ropes to move cars on the track. Tr. 190. Faced with this unwelcome response, Counsel for the Respondent then inquired what Hedrick meant, whereupon he stated that he meant “[t]aking cars out the tail track, taking cars out of a kickback, setting up a section” and that this was different from moving cars to spot them. Tr. 191.

            Mr. Hedrick was not at the mine when the safeguard was issued in 1991 and his interpretation was based on “[b]eing involved in the - - the man trips and why they were equipped with couplers and why they were equipped with certain locking brakes.” Thus he believed the safeguard originated to allow man trips to move cars. Hedrick described moving cars and spotting cars as the same type of work. Tr. 178. Although Mr. Hedrick described several steps the mine took after the incident to address it, with the intent to prevent a recurrence, those steps did not involve any change of policies as to having a motor available to move cars. Tr. 179. The mine’s report, R’s Ex. 8, was entered and Mr. Hedrick identified himself as the author. Tr. 180-182.

Summary and comment regarding the Parties’ Contentions for this Safeguard Notice.

            Respondent begins by noting that safeguards are issued without notice and comment rulemaking and that the Commission has described that quality as a “crucial” distinction. R’s Br. at 6. A safeguard, it states, “must identify with specificity the nature of the hazard involving the transportation of miners or materials at which it is directed.” Id. at 7. While not in agreement with the Commission’s position, Respondent concedes that the Commission has stated that, although a safeguard “need not delineate the potential harms” it addresses, it still must specify a hazardous condition and specify a remedy for it. Id. at 8.

            Respondent then turns to the Commission’s recent decision in American Coal, offering its take on it. It notes, as an example, that for one of the 12 safeguard notices the Commission affirmed, the safeguard specified the nature of the hazard and specified a remedy. Respondent then compared that safeguard’s affirmance with the one safeguard notice it invalidated in that decision. That invalidated safeguard notice applied to all long wall units, requiring that hydraulic manifolds, hoses, and CIU shield control boxes were to be mounted to provide maximum walkway clearance between the pan line cable tray rail and shield components and, if safe clearance could not be so provided in those areas, the conveyor was to be shut off and the electrical isolation switch opened before travel occurred in those areas. The Commission, as Respondent points out, held that the inspector failed to describe the conditions which he observed that led to the issuance of the safeguard. The Commission stated that while it could be inferred that the manifold and hoses were not mounted to provide maximum walkway clearance, the safeguard did not state if “some or all of th[o]se conditions were observed by the inspector.” Id. at 9, citing American Coal at 9.

            Respondent also refers to a decision issued by the undersigned in which this Court held that while the safeguard in dispute spelled out what was required of the mine – that cars on main haulage roads were not to be pushed, it did not describe the hazard intended to be addressed. Instead, at the hearing, the MSHA witness offered his interpretation of the hazards it addressed. Respondent correctly adds that this Court also determined in that decision that the hazard was not “so plainly obvious that it need not be stated.” Id. at 10, citing this Court’s decision in a different Oak Grove safeguard matter. 33 FMSHRC at 850-851.

            On those bases, Respondent concludes that for a safeguard to be valid, while the harms don’t have to be stated, the hazardous condition must still be identified and the “conditions [ ] described in such a way that the hazard is evident.” Id. Applying this description, Respondent asserts that the safeguard in issue here does not meet the requirements set forth by the Commission in American Coal. Reading from the text of the underlying safeguard invoked in the present litigation, Respondent attempts to distinguish its applicability from the practice which brought about the section 104(d)(2) order here. In this regard, Respondent points out that the underlying safeguard makes note that flat cars were being pulled with a 5/8" diameter wire rope, whereas in the present litigation the mine was “spotting” the cars, moving them a short distance. Witnesses for the Respondent expressed at the hearing that the tasks were dissimilar and that the original safeguard was speaking to using a wire rope as a coupler.

            The Court would interject here that when the Court relates the Respondent’s reading of the safeguard, that should not be blurred as any kind of an endorsement of that perspective. In the Court’s view, for example, the safeguard can also fairly be read as requiring moving supply cars on mine track only with the use of “track motors or other approved equipment.” Indeed, the safeguard literally requires just that, expressing that “only equipment such as track motors or other approved equipment be used in moving supply cars on the track in the mine.” Exhibit G 4. That safeguard requirement was imposed in the context of the inspector having observed three flat cars of supplies being moved with a scoop as it pulled those cars with a wire rope. The Court also considers it to be noteworthy that, as to the applicability of the safeguard challenged here, with the hazard being plainly obvious, it does not expressly specify a hazardous condition. The Respondent’s view is that the safeguard itself is defective by this failure. R’s Br. at 12.

            Noting that the Secretary has the burden of proof to show that the citation issued here is within the scope of the safeguard, and reminding again that, as safeguards do not come about through notice and comment rulemaking, they “must be bounded by a rule of interpretation [that is] more restrained,” the Respondent emphasizes that they “must be construed strictly.” R’s Br. at 13-14. This approach, Respondent adds, balances the Secretary’s authority to require a safeguard with the “operator’s right to fair notice of the conduct required of it by the safeguard.” Id. at 14. Under its view, a citation which attempts to go beyond the “specific hazards and conditions” addressed in the safeguard, must be vacated.

            The Respondent also cites to the Commission’s decision in Green River Coal Co., 14 FMSHRC 43, (Jan. 1992), as support for its view. There, the safeguard was upheld but a subsequent citation relying on it was vacated because, while both addressed obstructions in travelways, the obstructions differed fundamentally in their “nature, cause, and remedy.” Although in both cases a clear travelway of at least 24 inches was not provided, the safeguard came about from roof supports creating the insufficiently wide travelway, whereas the citation arose from a roof fall, which then created the insufficient width. Respondent finds another example in the Commission’s Bethenergy Mines decision, 15 FMSHRC at 982, 1993 WL 395186, June 1993, where the safeguard identified a lack of a 24 inch walkway along a longwall section and a citation relying upon it identified two belt lines with less than that clearance. In vacating the citation, the Commission held that the travel impediments, though both resulted in less than 24 inches of clearance, arose from substantially different causes. While the safeguard arose from a fence which had been erected and because a belt had been placed too close to a rib, the citation’s inadequate walkway came about from coal sloughage and other unintentional sources.            

            The Secretary maintains that, by Commission precedent, a valid safeguard must state the hazard against which it is directed and the actions required to remedy or prevent the occurrence of the condition or practice. Sec. Brief at 15, citing SOCCO I. The Secretary takes note that the Commission has expressed that, in recognition that safeguard notices are written in the field by mine inspectors, not a team of lawyers, reviews of such notices is not a semantic exercise. It submits that these principles were reiterated in the Commission’s American Coal decision. In one of three examples mentioned by the Secretary from that American Coal decision, safeguard no. 4054971, it notes that a miner was observed being hoisted in a cage with its gate in the open position. The notice then required that the gates on all cages be in the closed position when cages are hoisting or lowering miners. The Commission upheld the safeguard as specifying the nature of the hazard and the remedy for it. Of importance to the analysis of the validity of a safeguard, the Secretary observes that it is not necessary to explicitly state that an open gate presents a danger of falling, as “common understanding and experience” implicitly inform that to be the case. Sec. Br. at 18. The Court agrees with this contention. Put another way, a safeguard is not required “to state the obvious” to pass muster. Id. at 21.

Discussion.

            Section 314(b) of the Mine Act grants the Secretary authority to issue “[o]ther safeguards adequate, in the judgment of an authorized representative of the Secretary, to minimize hazards with respect to transportation of men and materials . . .”

            The Commission has spoken to the issue of safeguards on many occasions, but its most recent decision on the subject in American Coal neatly ties in and summarizes its law on the issue. 34 FMSHRC 1963, 2012 WL 4026649, Aug. 2012. In American Coal the Commission reviewed its precedent, beginning with its holding in Southern Ohio Coal Co., 7 FMSHRC 509, at 512, (“SOCCO I ”), noting that a safeguard notice must identify with specificity the “nature of the hazard” at which it is directed and “the conduct required” to remedy that hazard. It explained that the requirement to identify “the nature of the hazard” is met where the safeguard specifically identifies hazardous conditions. In SOCCO I, rocks and cement blocks in a travelway were identified as the hazard and the safeguard required the mine to provide at least 24 inches of clearance on both sides of conveyor belts. The Commission held that the attempt to apply that safeguard to water accumulation in the travelway was beyond the class of hazards identified in the safeguard notice. Accordingly, it held that an obstructed travelway created by water accumulation was not covered by the safeguard notice identifying rocks and blocks as the source of impeding the clear travelway.

            In the second of the three well-known Southern Ohio Coal Company safeguard cases., SOCCO II, 14 FMSHRC 748, (May 1992), the Commission reiterated that a safeguard which specifies hazardous conditions and provides a remedy is valid. It added that where a safeguard is based on the specific conditions at the cited mine and a determination that those conditions presented a transportation hazard, it is valid. Particularly important as applied to this litigation, the Commission stated in SOCCO II that the safeguard facially specified a hazardous condition. Notably, the safeguard notice did not formally utter the words that it was hazardous that the mine lacked a sufficient number of shelter holes. Instead, it stated that there were no shelter holes along a 400 foot section of the mine’s supply track and that shelter holes were to be provided. Because the lack of shelter holes along that 400 foot section presented a plainly hazardous condition, there was no need to express the obvious.

            The Commission repeated this principle in its third Socco decision, 14 FMSHRC 748 (May 1992) (“ SOCCO III ”), where the safeguard notice identified that only 6 inches of clearance was present for a scoop being operated along a supply track. The safeguard required that at least 36 inches of clearance be provided. In upholding the safeguard’s statement that there was only 6 inches of clearance as sufficiently identifying the hazard, the Commission did not treat the notice’s sufficiency by applying a grammatical test. Thus, while true that the safeguard did not assert that 6 inches of clearance was insufficient clearance nor that such small clearance thereby created a hazard, the Commission would not allow the notice to be invalidated, because it was both obvious that 6 inches of clearance was insufficient and because the safeguard informed the mine that the remedy to be provided was at least 36 inches of clearance.

            Accordingly, the Commission’s review, in American Coal, of its safeguard decisions summed up that if the safeguard specifies a hazardous condition and specifies a remedy, the safeguard will be deemed valid. American Coal at *5. It added that the word “hazard” in the safeguard provision means “hazardous conditions” and asserting a hazardous condition expresses the nature of the hazard and that the notice need not express the particular harm. Emphasizing this point, the Commission agreed with the judge’s expression that there was no requirement to name the harm or risk because any hazard may pose multiple risks and therefore the inspector need not identify each and every risk or harm. Id. at * 6.  

            The Commission then proceeded in American Coal to address the facial validity of the particular safeguards under challenge. There is no need to exhaustively discuss each of the 13 safeguards discussed by the Commission in American Coal because there is some analytical commonality to them. A few examples from that decision follow.

            Speaking to safeguard no. 7582643, issued because of the lack of a clear travelway along the length of a long wall face, created by the presence of coal and gob along that travelway, and requiring that those walkways be free of “all extraneous materials that would affect the safe travel of miners,” the Commission held that the safeguard was valid, as it specified the nature of the hazard: coal and gob affecting safe travel, and the remedy: that the walkway be free of extraneous materials. It is worth noting that the safeguard did not state that coal and gob in the travelway affected safe travel because, in the context of the order and upon reading the remedy, it was obvious that it would be superfluous to do so. Written by mine inspectors, not by a legal team, the safeguard imparted the nature of the hazard, and the remedy to deal with it, in a commonsense manner. This approach makes sense in the real world. It would hardly be useful if, instead of a plain spoken identification of the nature of the hazard and the remedy to deal with it, the safeguard notice was ladened with legal verbiage which required a separate team of lawyers to figure it out and then, quite likely, argue further over its construction.

            In another matter, a construction tractor, identified as a “CT 10,” pulling a trailer loaded with crib ties, was the subject of safeguard no. 4272082. There, the tractor was pulling the trailer with a belt chain. The safeguard required “a proper coupling device” for that particular tractor as well as for “all other mobile equipment used at [the] mine to transport materials and equipment.” The Commission rejected American’s assertion that the safeguard failed to specify both the hazard and the corrective measures, finding that, on its face, the safeguard identified both the hazard and the remedy. Id. at *10. This is another example demonstrating that, within the context of the common knowledge of those working in mining, when inherently unsafe practices are described, there is no need to formally utter a pronouncement that a practice is unsafe or hazardous, nor must the specific remedy be commanded. Further, the remedy, measured against the performance standard that only a “proper coupling device” be used, assists the mining community by not restricting the remedy to a particular device, as long as it is proper for coupling.

            The one safeguard found by the Commission to be deficient in American Coal involved long wall units in which “hydraulic manifolds, hoses and CIU shield control boxes” were not mounted in a manner to provide “the maximum walkway clearance between the pan line cable tray rail and the shield components.” The safeguard went on to provide that if such safe clearances could not be provided, the conveyor would have to be shut off and the electrical isolation switch at the head gate opened before miners traveled past such areas.

            Determining that the safeguard was insufficient, the Commission held that the nature of the hazard was not described with sufficient specificity in that the inspector issuing the safeguard did not state that the cited conditions were observed. Accordingly, while the Commission conceded that it could be inferred that the conditions were so observed, at least in that instance it concluded that the inspector did not sufficiently express that the conditions were so observed. Id. at *12.

            With the Commission’s guidance in mind, it is time to turn to the challenges to the citation issued here. The entire text of the safeguard upon which the government relies

provides:

                        The two longwall utility man were observed moving 3 flat cars

                        of supplies on the longwall section track with a Diesel powered

                        Scoop (Note) They were pulling the cars with a 5/8" dia[meter]

                        Wire Rope. This notice to provide safe guard requires only

                        Equipment Such as Track Motors or other approved Equipment be used in

                        moving supply cars on the Track in the mine.

Safeguard notice number 3013658, issued May 25, 1991.

            By comparison, the Citation in issue in this proceeding, Citation No. 8518376,

Gov. Ex. 2, states, in relevant part:

                        On 5-12-2010 . . . an incident occurred at this mine that endangered

                        the lives of miners working underground. A Section Foreman was

                        using the winch of a scoop to move 3 supply cars; with 1 of the cars

                        being loaded with 20 foot sections of 2 inch metal water pipe. The

                        supply cars were located at the end of the Main North 3 track. The

                        3^rd car inby was attached to the winch cable. The hook on the end of

                        the cable became disconnected from the supply car causing the 3 most

                        outby supply cars (coupled together) to roll outby. There was a positive

                        stop located approximately 30 feet from the cars, that when contacted

                        by the cars, fell over allowing the supply cars to continue to gain

                        momentum and travel outby with no one in control of the cars.

                        The cars came to rest at cross cut 20 on 11 West track. The distance

                        traveled by the supply cars was 3.900 feet.

            Clearly, the underlying safeguard meets the Commission’s test because it implicitly specifies the hazardous condition and explicitly provides the remedy for it. With the valid safeguard, the citation in issue here, clearly falls within its purview. In fact, it would be difficult to imagine a scenario that would be closer than the one cited here. For that reason, a prolonged discussion is both unnecessary and unwarranted.

            The underlying safeguard was issued upon the inspector observing flat cars being moved by a scoop which was pulling the cars with a wire rope. An inherently unsafe practice, the notice then set forth the remedy, directing that only approved equipment be used to move supply cars on the mine’s track. Though not essential, the notice then put forth “track motors,” as one example of an approved piece of equipment to move such cars.

            In both the underlying safeguard and the Citation issued for its violation, the commonalities are rife: both involved the use of a scoop to move mine cars and both were doing so with wire rope/cable. Focusing upon distractions such as whether there was pulling or pushing going on, is to miss the point that scoops and cables are not a safe, nor approved, means to move mine cars. Accordingly, considering the Commission’s recent guidance in American Coal, together with the admonition that safeguards are not created by a drafting team of lawyers, the Court concludes that the safeguard in issue is valid and that it applies to the cited condition. This conclusion also comports with the recognition that a legal analysis and commonsense should not be mutually exclusive endeavors.

Remaining Issues

A. Respondent’s contention that there was no unwarrantable failure .

Respondent maintains that “there was a reasonable good faith belief that a violation did not exist [on the grounds that] Mr. Hendrick . . . believed that the safeguard did not apply to the cited condition.” R’s Br. at 24. Respondent finds support for this belief on the basis that the safeguard refers to “pulling the cars” with a wire rope and that this is somehow different from moving them a short distance with the use of a wire rope on a winch mounted on a scoop. It also contends that, by the mine’s obtaining mantrips with couplers after the incident, that “suggests” that the “use of the wire as a coupler” was the “issue in the safeguard.” Id. Last, Respondent asserts that Mr. Bienia’s belief that his actions were not improper point to a lack of unwarrantability and that this belief was supported by his prior actions at another mine where he spotted cars using a wire rope and winch arrangement.

            For the Secretary’s part, it maintains that as the violation occurred as “a direct consequence of the actions of Mr. Bienia [who is] a supervisory employee at the mine who was not only aware of the violative action but also was an active participant in its commission [and that all three aspects:] the violation, the high level of negligence, and the unwarrantable failure allegations [have been] clearly established.” Sec. Br. at 21-22. Nor, it asserts, does “Mr. Bienia’s claim that he was unaware of [the safeguard in issue constitute] a defense to a finding that he violated [the] Safeguard . . . [since] ignorance of the law is not a defense . . . ” Id. at 22, (citations omitted). The Secretary also submits that Mr. Bienia’s testimony lacked credibility because his claim that he was aware of most of the safeguards at Oak Grove, but not the one in issue, is by that very claim, not believable. Though the Secretary suggests that the foregoing is enough to question the claim that Mr. Bienia did not know of this safeguard, the Secretary notes that Mr. Hedrick stated that Mr. Bienia did know of it, but that the mine concluded the safeguard simply did not apply to the situation which gave rise to the incident. Sec. Br. at 23.

            Though the Respondent appears to have conceded the gravity aspect, the Secretary notes that the Inspector listed it as “highly likely to cause a fatal injury to one person” and that, as the incident occurred on the main line track, other miners would be exposed to runaway cars. Sec’s Br. at 23. Of course, there was, the Secretary also notes, the very close call Mr. Tartt experienced. The Court has already addressed this issue, and finds that the gravity was highly likely, reasonably could be expected to result in permanently disabling injury or a fatality and most definitely significant and substantial.

            The term “unwarrantable failure” is defined as aggravated conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or the “serious lack of reasonable care.” Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC at 193-94. Aggravating factors include the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts were necessary for compliance, the operator's efforts in abating the violative condition, whether the violation was obvious or posed a high degree of danger, and the operator's knowledge of the existence of the violation. See, Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Windsor Coal Co., 21 FMSHRC 997, 1000 (Sept. 1999); Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). All of the relevant facts and circumstances of each case must be examined to determine if an actor's conduct is aggravated or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.

            The evidence of record demonstrates that there was an unwarrantable failure here. Not only did supervisory personnel know of the hazardous method employed, the supervisor, Mr. Bienia, conducted the unsafe practice himself, along with the collaboration of employee Teel. Thus, the action taken here was a conscious decision to deal with the movement of cars in the manner employed. Matters were not helped by the supervisor’s lack of awareness that there is a safety practice known as “safeguards.” This unfamiliarity with the term takes into account testimony that Mr. Bienia stated that he was aware of the substantive requirements of nearly all the mine’s safeguards, save this one, but that he never associated the label “safeguard” with those. It is noteworthy that no one from the Respondent’s side came forward at the hearing with a claim that the technique employed here was a salutary practice, which should be employed in future efforts for moving cars. On the other hand, the Inspector was firm that the practice employed was unsafe and well-understood to be so. As supervisors are held to a heightened standard of care regarding safety matters, and as there was an intentional, though inexcusably unwitting, violation of the safeguard involved here, the conclusion that the violation was unwarrantable is inescapable and the Court so finds that to be case here. S & H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995); Youghiogheny, 9 FMSHRC at 2011.

B. Respondent’s contention that no penalty should be imposed under Section 110(c).

            Respondent contends that the evidence does not establish that there was a knowing violation. In this regard, it quotes the Commission’s statement that “an individual acts knowingly where he is ‘in a position to protect employee safety and health [and] fails to act on the basis of information that gives him knowledge or reason to know of the existence of a violative condition.’” R’s Br. at 40, citing REB Enterprises, Inc., Harold Miller and Richard Berry, 20 FMSHRC 203, 211 (March 1998). To establish this, Respondent maintains, mere negligence, and even high negligence, is not sufficient, as unwarrantable failure must be shown. Citing an administrative law judge decision, Oak Grove adds that, if one reasonably believes that a particular practice is safe, no 110(c) liability should attach. R’s Br. at 41.

            Applying its stated recounting of the test to the facts, Respondent states that “no finding that Mr. Bienia knowingly authorized, ordered or carried out a violation” can be made, apparently because he held a “good faith belief that a violation did not exist.” R’s Br. at 41. To support that assertion, Respondent offers two points: Mr.Hedrick’s belief that the safeguard did not apply to the cited condition; and the claim that because the safeguard refers to pulling the cars, that is different from “spotting” cars, because the latter only involves moving them a short distance. It adds that, as Mr. Bienia had for years spotted cars using a wire rope and a winch, he reasonably did not believe that was an improper practice.

            Section 110(c) provides that: “Whenever a corporate operator violates a mandatory health or safety standard . . . any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out such violation . . . shall be subject to the same civil penalties . . . that may be imposed upon a person under subsections (a) and (d) of this section.” 30 U.S.C. § 820(c).

            The Commission has established the test for determining a “knowing” violation in such circumstances, stating “If a person in a position to protect safety and health fails to act on the basis of information that gives him knowledge or reason to know of the existence of a violative condition, he has acted knowingly and in a manner contrary to the remedial nature of the statute.” Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d 689 F.2d 623 (6^th Cir. 1982), cert. denied, 461 U.S. 928 (1983)(emphasis added). It is true that a section 110(c) violation requires more than ordinary negligence by requiring that the corporate officer’s conduct must be “aggravated.” Wyoming Fuel, 16 FMSHRC at 1630 and Emery, 9 FMSHRC at 2003-04.

            Although the Court has a high regard for Mr. Bienia, as a person, that is distinct from the analysis to be applied in determining whether there is section 110(c) liability. Mr. Bienia, as a member of management, had a duty to know of the safeguards at the mine. Thus, he had reason to know that the actions he initiated with Mr. Teel ran contrary to the safeguard and, beyond that, had reason to know that it was an inherently dangerous manner to move supply cars that way. Accordingly, in this case, the Court must find that such liability has been established.

            The determination of an appropriate penalty is another matter. For that, the Court is to make findings for each of the statutory penalty criteria. This includes considering things such as the individual’s income, family support obligations, the appropriateness of the penalty in light of the person’s job responsibilities, and his/her ability to pay. Consistent with the foregoing, the individual’s history of violations, and negligence, the gravity and whether there was a good faith abatement are all to be factored into the assessment of a penalty.

            There is no indication that Mr. Bienia has any prior knowing violations of the Mine Act. The size of business criterion is not applicable. There is nothing in the record to indicate that even the proposed penalty would impact the ability of Mr. Bienia to meet his day-to-day financial obligations nor that such penalty would be inappropriate considering the individual’s income and net worth, as no evidence was presented on those aspects either. The negligence and gravity have already been discussed and were taken into account by the Court in arriving at the penalty herein imposed. Good faith abatement is a non-factor in terms of the penalty for Mr. Bienia as well.

            Upon consideration of the evidence in the case and the application of that evidence to the statutory criteria, the Court imposes a civil penalty of $500.00 (five hundred dollars) against Mr. Bienia.

C. Respondent’s contention that Section 110(c) of the Mine Act , 30 U.S. C. § 820(c), applies only to agents of Corporations.

            Respondent here contends that Mr. Bienia, as an agent of a limited liability company is not subject to individual liability under section 110(c). It is Respondent’s belief that since the language of the provision literally states that “[w]henever a corporate operator violates a mandatory health or safety standard . . . any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out such violation, . . . shall be subject to the same civil penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (d) of this section,” that is the end of the discussion. (emphasis added).

            In support, Respondent cites to Donald Guess, employed by Pyro Mining, 15 FMSHRC 2440, (Rev. Comm. 1993), aff’d 52 F.3d 1123 (D.C. Cir. 1995)(“Guess”), in which the agents of a partnership were themselves corporations. A section 110(c) matter, the Secretary sought to hold Pyro employees liable under that provision. Respondent describes that “[t]he targeted agents moved for summary decision on the issue and argued that the language of section 110(c) unambiguously restricts individual liability to certain individuals associated with corporate mine operators.” R’s Br. at 27. It is true that the Commission in 1995 bought into the literal reading argument presented.

            Now, at the outset it should be noted that, in the case of the Respondent’s argument, there is little to no presentation as to why this result makes sense for this remedial statute and there is a good reason for that absence – there is no good reason to put forward. The literal words are presented as sufficient because that is all the Respondent has to offer. Though Respondent asserts that “Congress has spoken to the issue,” the answer is that “really, Congress has not done so at all.” That is to say, Congress nowhere asserted that “limited liability companies” are not covered under the Mine Act and the reason such a description will nowhere be found is because it would be inane. While the Respondent tries to muster 110(c) arguments to justify distinctions between corporations and limited liability companies, it produces next to nothing in that regard, offering: “they are creations of an agreement, like partnerships, as opposed to statute, like corporations,” and it produces literally nothing in terms of any logic-based claim to support its assertion. Therefore, it is left where it began ... because the literal language refers to a corporate officer, that is that.

            In 2012, the Commission revisited the 110(c) liability question. Sec. of Labor v. Simola, employed by United Taconite LLC, 34 FMSHRC 539, 2012 WL 894524 (May 2012) (Simola). Judge Feldman dispatched the claim initially, noting in his Order denying respondent's motion to dismiss for lack of jurisdiction that: “Here, Congress obviously did not consider the applicability of section 110(c) to agents of LLCs because the operation of mines as LLC entities occurred after the legislation was adopted. Accordingly, the focus shifts to whether the Secretary's interpretation of section 110(c) is reasonable.” at 32 FMSHRC 421, at * 423, 2010 WL 1514426. With that observation in mind, the judge added: “ Simola, in essence, seeks to differentiate a limited liability company from a corporation based on its Internal Revenue Service tax treatment despite the fact that both business entities shield agents from personal liability. Thus, Simola relies on a distinction without a difference. As the purpose of section 110(c) is to pierce the corporate-like liability shield, the Secretary's interpretation that the provisions of section 110(c) apply to agents of mine operators operating as both corporate and limited liability companies is manifestly reasonable and consistent with the intent of the legislation. ” Id.

            In affirming Judge Feldman’s decision, the Commission, noted: “The initial step under a Chevron I analysis is to decide whether Congress directly addressed the question of whether an agent of an LLC can be held liable under section 110(c). That provision states that agents of corporations can be held personally liable, but does not mention agents of LLCs. However, it is important to recognize that Congress could not have been expected to expressly mention LLCs in section 110(c) because LLCs did not effectively exist in 1977 when Congress passed the Mine Act. Although the legislative history of section 110(c) provides valuable guidance as to Congressional intent in passing the provision, the legislative history likewise does not directly address liability for agents of LLCs.” Simola, 34 FMSHRC 539 at *543-544.

            Speaking further to that legislative history, the Commission noted that “[i]n later passing section 110(c) of the Mine Act, Congress stated that it intended to hold individual officials as well as corporate entities responsible for violations in order to induce greater compliance with the Mine Act. *546. With that observation, it noted that “ [t]he Sixth Circuit [has] explained that section 110(c)'s legislative history demonstrated Congressional intent to provide an additional compliance incentive to certain employees working within a corporate structure [by highlighting that] [i]n a noncorporate structure, the sole proprietor or partners are personally liable as "operators" for violations; they cannot pass off these penalties as a cost of doing business as a corporation can. Therefore, the noncorporate operator has a greater incentive to make certain that his employees do not violate mandatory health or safety standards than does the corporate operator. Subsection [110(c)] attempts to correct this imbalance by giving the corporate employee a direct incentive to comply with the Act.” Id. at *547 (Citations omitted).

            Accordingly, based on the foregoing the Court rejects Oak Grove’s claim that limited liability companies are outside of section 110(c)’s coverage.

Penalty Determination regarding SE 2010 1236 for Citation Number 8518376

            This penalty imposition regarding SE 2010 1236 pertains only to Citation Number 8518376. Other citations were part of this docket and those other matters have been disposed of in earlier Orders.

            Each of the penalty criteria set forth in Section 110(i) of the Mine Act were duly considered by the Court. Evidence of record, either through testimony or admitted exhibits, speaks to each of the penalty elements. Given the entire record, the Court would be well justified in imposing a penalty greater than the $50,700.00 which was proposed through a special assessment. However, the Court has concluded that upon consideration of each of the penalty criteria to adopt the same amount as that arrived through the special assessment.

ORDER

            On the basis of the foregoing, the Court imposes a civil penalty against Oak Grove Resources, LLC in the sum of $50,700.00 and a civil penalty in the sum of $500.00 against Respondent Donny Bienia. The Respondents are ORDERED TO PAY the respective sums to the Secretary of Labor within 30 days of the date of this decision.

/s/ William B. Moran

William B. Moran

Administrative Law Judge

Distribution:

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 230, Nashville, Tennessee 37219-2440 (Certified Mail)

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, 401 Liberty Avenue, Suite 1500, Pittsburgh, Pennsylvania 15222 (Certified Mail)