FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF THE ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA VE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

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

September 6, 2012

DECISION

Appearances:  Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, Tennessee, on behalf of the Petitioner;

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, Lexington, Kentucky,

                        on behalf of the Respondent.

Before:            Judge Bulluck

            This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary of Labor on behalf of her Mine Safety and Health Administration (“MSHA”), against Marshall Mining, Inc. (“Marshall Mining”), pursuant to section 105 of the Federal Mine Safety and Health Act of 1977 (“Act” or “Mine Act”), 30 U.S.C. § 815. The Secretary seeks civil penalties in the amount of $8,893.00 for one alleged violation of the Act and her mandatory safety standards.

            A hearing was held in Ashland, Kentucky. The parties’ Post-hearing Briefs are of record. For the reasons set forth below, I AFFIRM the citation and assess a penalty against Marshall Mining.

I.         Stipulations

            At the hearing, the parties stipulated as follows:

            1. On January 30, 2008, Marshall Mining was the operator of the No. 4A Mine, Mine I.D. No. 15-19131.

            2. The No. 4A Mine is a “mine” as that term is defined in section 3(h) of the Mine Act, 30 U.S.C. § 802(h).

            3. On January 30, 2008, products of the No. 4A Mine entered commerce or the operations or products thereof affected commerce within the meaning and scope of section 4 of the Mine Act, 30 U.S.C. § 803.

            4. In 2008, the No. 4A Mine produced 169,502 tons of coal, and had 43,392 hours worked.

            5. A copy of Citation No. 6649707 was served on Marshall Mining by an authorized representative of the Secretary.

            6. Marshall Mining timely contested Citation No. 6649707.

            7. Marshall Mining is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission, and the presiding Administrative Law Judge has the authority to hear and issue a decision regarding this case.

            8. The proposed penalty will not affect Marshall Mining’s ability to continue in business.

II.       Factual Background

            Marshall Mining operates the 4A Mine, an underground coal mine, in Pike County, Kentucky. On January 30, 2008, Entry No. 1 of the 4A Mine was being advanced using continuous mining machines adjacent to and within 200 feet of an abandoned coal mine that was filled with water. Tr. 22, 26, 30, 87-88, 177; Ex. G-1. Under such conditions, the operator was required to drill boreholes in advance of mining.

            Section 75.388 of the Secretary’s regulations requires that when any working place approaches to within 200 feet of an adjacent mine in the same coalbed, and the adjacent mine has not been preshift examined, i.e., it is inactive, boreholes “shall be drilled.” 30 C.F.R. § 75.388(a)(3). The area where boreholes must be drilled is called the “drill zone.” Tr. 8, 111-14. Boreholes are drilled with drill steel that comes in 10-foot sections, in advance of and perpendicular to the working face, as well as at perpendicular 20 degree angles from the ribs closest to the inactive mine workings. Ex. G-4; Tr. 149-51. The boreholes are designed to detect any potentially dangerous conditions that exist in an adjacent inactive mine, including water, which, if mined into, could inundate an active working place, and cause potentially lethal consequences. Tr. 126. In order to increase the probability of hitting water in adjacent inactive workings, boreholes are drilled close to the mine floor. Tr. 149-51.

            Detailed requirements as to how boreholes must be drilled when a working place is within a drill zone are set forth in section 75.388. 30 C.F.R. § 75.388(b)-(c). An operator may also drill boreholes in alternative patterns under an MSHA approved plan that provides the same protection to miners as do the requirements of paragraphs (b) and (c) of section 75.388. 30 C.F.R. § 75.388(g). Before Citation No. 6649707 was issued, Marshall Mining had submitted two alternative borehole drilling plans to MSHA. The agency approved the first plan on November 9, 2007, and approved the second plan on December 13, 2007. Ex. G-4, G-5.

            The November Plan required Marshall Mining to drill five 40-foot boreholes at the active face in advance of mining, three perpendicular to the face, and two into each rib at 20 degree angles. The Plan then limited the amount of coal the company could cut to 30 feet. This would leave a 10-foot buffer between the face and the maximum extent to which the boreholes were drilled. Ex. G-5. This would also ensure, at all times, a 10-foot buffer in advance of active mining.

            The December Plan included two options. Under the first option, Plan A, 16-20 foot deep cuts made off the main entry called buttoffs would be made, and a 200 foot borehole would be drilled from the buttoff parallel to main entry. Tr. 37-42. Plan A was not included in the November Plan. Plan B of the December Plan was similar in most respects to the November Plan. It required that five boreholes be drilled in advance of mining from the face and ribs, with three of the boreholes drilled perpendicular to the face, and two other boreholes drilled into the ribs at 20 degree angles. Under Plan B, however, 30-foot boreholes would be drilled in advance of mining, and the company was limited to taking 20-foot cuts of coal. As in the November Plan, the December Plan required that the boreholes extend at least 10 feet beyond the face at all times, creating a 10-foot buffer in advance of active mining. Tr. 50-51; Ex. G-4. The parties agree that, on January 30, 2008, when Citation No. 6649707 was issued, Marshall Mining was advancing Entry No. 1 within a drill zone under Plan B of the alternative borehole pattern approved by MSHA on December 13, 2007. Tr. 32, 171-72, 176-77.

            On January 30, 2008, MSHA Inspector Alan Howell was in the process of conducting a regular quarterly inspection of the 4A Mine. Tr. 21. Howell was accompanied by an MSHA trainee, Steven Caudill, and the 4A Mine superintendent, James Kilgore. Tr. 29. When Howell arrived at the working face of Entry No. 1, he and Caudill searched for boreholes in the face and found two. Tr. 51-52. Howell measured the depth of these holes to be approximately 3 feet deep. Tr. 63. Caudill corroborated Howell’s testimony on this point, testifying that he was present when Howell measured the boreholes, and confirmed that both of the boreholes were two to three feet deep. Tr. 213-14. Using a fiberglass pry bar, Caudill also measured one of the two boreholes and found it to be “[t]wo and a half, maybe three feet” deep. Tr. 211-13.

III.      Findings of Fact and Conclusions of Law

            Based on the depth of the holes, Howell concluded that a cut of coal had been taken from Entry No. 1 in excess of the 30-foot requirement set forth in Plan B of the December Plan. As Howell testified, “[i]f they were using this plan [B], and they were taking 20 foot . . . cuts with the [continuous] miner, there would be a 10 foot [bore]hole here at all times, a buffer . . . [i]n front of the mining.” Tr. 50. In other words, if Marshall Mining had been following its alternative borehole drilling plan, it would have drilled 30-foot boreholes, then mined a 20-foot cut of coal, leaving a “buffer” of boreholes at least 10 feet deep. Before proceeding with another 20-foot cut, these 10-foot boreholes would have had to have been drilled again to a depth of at least 30 feet in advance of the working face. Tr. 50-51.

            Although mine superintendent Kilgore testified that “sometimes holes are hard to find” (Tr. 151), he admitted on cross-examination that he had no personal knowledge as to whether the boreholes in Entry No. 1 were being kept 10 feet in advance of mining on the day that the citation was issued:

                        Q:        Do you have any independent knowledge, firsthand knowledge, of whether those boreholes were drilled, and if so how deep those boreholes were drilled in the No. 1 entry on January 30, 2008?

                                                            *     *     *

                        A:        No, I can’t say that I did.

                        Q:        You weren’t there when they were drilling those boreholes, were you, Mr. Kilgore?

                        A:        Not that day, no, not at that time.

Tr. 178-79.

            Howell issued Citation No. 6649707 to Marshall Mining for violating its alternative borehole drilling plan. The citation describes the “Condition or Practice” as follows:

The operator has failed to comply with the alternative drill plans A and B approved by the District manager in that:

1 -- No butt offs are being cut so [as] to allow the 200 foot advanced drilling of bore holes as described in plan A of the Alternative Bore Hole Plan.

2 -- 30 foot cuts are being cut in the # 1 entry which violates Plan B of the Alternative Bore Hole Plan that requires no more than 20 foot cuts be taken.

3 -- The outside entry (number 1) is not being kept 60 [feet] in advance of other entries as required in Alternative Bore Hole Plan B.

4 -- The operator has previously been [cited] for non-compliance of the approved bore hole plan on 1-9-2008 (citation #6649484).

Ex. G-2. Howell concluded that the violation was the result of Marshall Mining’s high negligence, and was of a significant and substantial (“S&S”) nature.

            After issuing the citation, Howell required that the operator drill a 60-foot borehole towards the adjacent inactive workings. Tr. 86. As this borehole was being drilled, water began gushing out of it at a rate of five to eight gallons per minute. Tr. 87. Water continued pouring from the hole the following day. Tr. 90. This led Howell to issue imminent danger closure Order No. 6649710 on January 31, 2008, under section 107(a) of the Mine Act, 30 U.S.C. § 817(a). Tr. 88; Ex. G-11. Howell concluded that the maps Marshall Mining was using were inaccurate as to the location of the inactive workings adjacent to Entry No. 1. Tr. 90-91; Ex. G-11. Howell testified, “We knew that there was water coming out of the holes, and it was unknown where it was actually coming from.” Tr. 90-91.

            On February 4, 2008, Citation No. 6649707 was terminated. The notice of termination stated as follows:

The operator has requested that the Alternate Drill Plans (A&B) approved December 13, 2007 be withdrawn. The request has been approved by the District Office. The Alternate Plan for drilling bore holes which was approved on November 9, 2007 is still in [effect] and does not require the conditions cited in the violation[,] therefore the citation is hereby terminated.

Ex. G-12.

            Fact of Violation

            The first allegation set forth in Citation No. 6649707, that Marshall Mining was not cutting any buttoffs according to Plan A of the December Plan, establishes that Plan A was not being followed by the company on January 30, 2008, and therefore, that Plan B was in effect. As I have previously noted, this point is not in dispute. At the hearing, the Secretary conceded that the third allegation set forth in the citation is not valid. Tr. 118-19. Respecting the fourth allegation, it is also undisputed, because it refers to a past violation, and does not, by itself, establish that Marshall Mining violated section 75.388(g) on January 30, 2008, as alleged.

            The gravamen of the Secretary’s case is thus the second allegation set forth in the citation, that Marshall Mining was taking 30-foot cuts in violation of Plan B, which required that no more than 20-foot cuts be taken. As to this allegation, I find no evidence in the record that contradicts the testimony of Howell or Caudill as to the depth of the two boreholes that they were able to discover. I also find credible and convincing Howell’s conclusion that the depth of the two boreholes indicated that Marshall Mining took an excessive cut of coal. The operator’s cut of coal from Entry No. 1 effectively destroyed the 10-foot buffer that it was required to maintain in advance of mining, and reduced it to approximately 3 feet.

            Marshall Mining argues that “[t]he citation at issue does not mention an alleged violation of the 10 foot buffer, which was required in the November Plan and the December Plan. . . . The citation was never modified to include an allegation that Marshall was not maintaining the 10 foot buffer.” Resp. Br. at 10. This argument puts the cart before the horse. Marshall Mining’s failure to maintain a 10-foot buffer is compelling evidence of its concomitant failure to limit itself to taking a 20-foot cut, which is the violation that the citation clearly alleges. Marshall Mining’s attempt to find fault with the language of the citation is unavailing. Based on Howell’s credible and well-corroborated testimony, I conclude that Marshall Mining was not following its December 2007 Plan.

            Likewise, I find the rebuttal testimony of the operator’s witness lacking in credibility. Mine superintendent Kilgore asserted that “we always drill that buffer zone” (Tr. 151), but he admitted on cross-examination that he had no first hand knowledge of borehole drilling operations on Entry No. 1 at the time of the citation. Tr. 178-79. The basis of his belief that a 10-foot borehole buffer was in place appears to have been past practice:

                        Q:        Okay. So your testimony that you always kept the buffer zone is based upon just something you always did, correct?

                        A:        Uh-huh, (affirmative).

Tr. 179.

            Both Howell, for the Secretary, and Kilgore, for Marshall Mining, testified that, on January 30, 2008, Marshall Mining was operating in the Entry No. 1 of the 4A Mine under Plan B of the alternate borehole plan approved by MSHA on December 13, 2007. In its brief, however, Marshall Mining repudiates this point, stating that it “was in compliance with an approved and in effect plan, the November plan, on January 30, 2008.” Resp. Br. at 10 (emphasis added). In support of this about-face, the company points to the notice terminating Citation No. 6649707, arguing that when Howell “became aware that the November plan was also in effect on January 30, 2008, he terminated the citation due to the fact that the November plan did not require items cited in the citation.” Resp. Br. at 9. This position misconstrues both the plain meaning and effect of the termination notice.

            The termination notice states that Marshall Mining requested that its December Plan be withdrawn, that MSHA approved this action, and that the November Plan “is still in [effect] and does not require the conditions cited in the violation.” Ex. G-12. Marshall Mining would have the terms of this termination apply retroactively to the conditions that existed on January 30, 2008, which the termination notice clearly does not do. To the contrary, the notice has obvious prospective effect; a reasonable reading of the notice of termination indicates that it reinstates the earlier, November Plan and nullifies the later, December Plan as of the date of the notice, February 4, 2008. Id.

            The notice also states the obvious, that the 30-foot cut for which Marshall Mining was cited would have been allowed under the November Plan, although even under the November Plan, cuts had to be made so as to maintain a 10-foot buffer of boreholes in advance of mining. In fact, Marshall Mining’s failure to maintain boreholes in advance of mining as a result of taking an unauthorized deep cut, as evidenced by the 3-foot boreholes Howell discovered, would also have violated the November Plan. Tr. 60, 63-64. Marshall Mining’s argument is at odds with the termination notice, the testimony of its own witness, Kilgore, and the overwhelming weight of the evidence as to the conditions that existed in Entry No. 1 when the citation was issued. I find the company’s position untenable and singularly unpersuasive. The evidence compels a finding that Marshall Mining was endangering it miners by taking cuts of coal that were too deep, regardless of which plan applied. I find, however, that consistent with the testimony of both Howell and Kilgore, Plan B of the December Plan was in effect in Entry No. 1 of the 4A Mine on January 30, 2008, and that Marshall Mining failed to comply with its requirements.

            Accordingly, I find that Marshall Mining violated section 75.388(g), as alleged, by the Secretary.

            Significant and Substantial

            The S&S terminology is taken from section 104(d)(1) of the Act, which distinguishes as more serious any violation that “could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d)(1). A violation is S&S if, based on 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., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., the Commission further explained:

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.

6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies criteria).

            The “discrete safety hazard” created by the operator in this case is obvious. As the Commission stated in Kellys Creek Resources, Inc., the “legislative history [of 30 C.F.R. 75.388] is short, but telling: ‘The necessity of maintaining drill holes in advance of the face in any working place approaching abandoned mine openings known or suspected to contain dangerous quantities of water or noxious or explosive gases is obvious and such holes are required by law in many coal-mining States.’ S. Rep. No. 411, 91st Cong., 1st Sess. 84 (1969), reprinted in Senate Subcommittee on Labor, Committee on Labor and Public Welfare, 94th Cong., 1st Sess., Part I Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at 210 (1975).” 19 FMSHRC 457, 461 (Mar. 1997) (emphasis added).

            When Marshall Mining took too deep a cut in Entry No. 1 of the 4A Mine, and in so doing, failed to keep boreholes at least 10 feet in advance of mining, the company created conditions under which a major disaster may very well have occurred, given continued normal mining operations. Howell testified that failure to maintain an adequate buffer of boreholes created “a possibility of cutting into those old works and flooding the mine,” which would very likely have resulted in fatalities. Tr. 60. This is especially true because the elevation of the working section in Entry No. 1 had dropped by approximately 12 feet just before the citation was issued, leaving the working section particularly vulnerable to an inundation from inactive workings at a higher elevation. Tr. 30. Moreover, after Howell issued the citation, he required that Marshall Mining drill a 60-foot borehole from which 5 to 8 gallons of water per minute gushed up to 2 to 3 feet into Entry No. 1. Tr. 86-88.

            The events of July 2002 at the Quecreek No. 1 Mine in Somerset, Pennsylvania should have provided Marshall Mining ample warning of the potentially disastrous consequences of mining into inactive workings. Nine miners were trapped underground in the Quecreek Mine for approximately 76 hours after an adjacent inactive mine was cut into, which liberated a massive deluge of water that inundated the Quecreek Mine and trapped the miners. Tr. 60; see Black Wolf Coal Co., 28 FMSHRC 699 (July 2006) (setting forth the facts of the Quecreek innundation). Marshall Mining was operating perilously close to conditions which, like those at Quecreek, had the potential of killing the miners working in its mine.

            For purposes of determining whether Marshall Mining’s violation was S&S, I find the Commission’s decision in Cumberland Coal Resources, LP, particularly instructive. The Cumberland case involved a defective system of emergency lifelines in a mine’s escapeways. 33 FMSHRC 2357, 2358-61 (Oct. 2011). In determining whether Cumberland’s violation of the applicable standard was S&S, the Commission stated:

Evacuation standards are different from other mine safety standards. They are intended to apply meaningfully only when an emergency actually occurs. When the citation for a violation of an evacuation standard is issued, presumably no emergency exists at that moment. While it is the hope and objective of all who work in mine safety that no emergency will ever occur in the future, if an emergency does occur, it is imperative that the requirements of the evacuation standard be met at that time.

Id. at 2367. The Commission concluded that, “with regard to evacuation standards, the applicable analysis under Mathies involves consideration of an emergency,” and went on to find Cumberland’s violation S&S. Id. at 2366.

            Here, the situation is slightly different, in that the borehole requirements of section 75.388(g) are designed to prevent an emergency from occurring. However, consistent with Cumberland, I must consider the potentially catastrophic consequences that would occur in the 4A Mine if the protections against innundation afforded by boreholes were rendered ineffective by the operator’s actions.

            The operator argues that a safeguard it had in place, “a pump with a capacity of 200 to 300 gallons per minute,” would have adequately addressed any innundation that might have occurred. Resp. Reply Br. at 5. The Commission rejected such a defense to an S&S finding in Cumberland, noting that one court had “rejected the operator’s reliance on the additional safety measures as factors that would prevent an S&S finding.” Cumberland, 33 FMSHRC at 2369 (citing Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995), and other cases with similar holdings). The Commission explained further that adopting Cumberland’s argument that redundant, mandatory safety protections provide a defense to a finding of S&S would lead to the anomalous result that every protection would have to be nonfunctional before a S&S finding could be made. Such an approach directly contravenes the safety goals of the Act.” 33 FMSHRC at 2369-70.

            Accordingly, I find that Marshall Mining’s violation of section 75.388(g) was S&S.

            Gravity

            In a 1996 Consolidation Coal Company decision, the Commission stated: “The gravity penalty criterion under section 110(i) of the Mine Act . . . is often viewed in terms of the seriousness of the violation. . . . The focus of the seriousness of the violation is . . . on the effect of the hazard if it occurs.” 18 FMSHRC 1541, 1549-50 (Sept. 1996) (emphasis added) (affirming a judge’s finding that a violation was “serious” based upon evidence of what could have occurred given the conditions present).

            Respecting Citation No. 6649707, Howell concluded that Marshall Mining’s violation of section 75.388(g) was reasonably expected to result in “lost workdays of restricted duty.” I find, however, as set forth in my discussion of S&S above, that the more likely result of an accident occurring as a result of the operator’s violation would have been fatal injuries to the nine miners working in Entry No. 1. See Tr. 60, 91-92.

            Accordingly, I find that Marshall Mining’s violation of section 75.388(g) was very serious.

            Negligence

            Marshall Mining knew that it was mining near inactive workings that were filled with water. Tr. 87-90, 164-65; Ex. G-1. The operator was well aware of the dangers associated with such conditions. As mine superintendent Kilgore testified, “I was actually scared of the place because, you know, the water.” Tr. 160. Furthermore, Kilgore testified that he did not know whether the mine map was accurate. Tr. 167. In fact, he was aware that on January 17, 2008, approximately two weeks before the citation was issued, a borehole had been drilled into the adjacent inactive workings, which indicated that the mine map was inaccurate. Tr. 43, 78-80, 168. Indeed, Howell had cited the operator for violating its alternative borehole drill plan on two prior occasions, December 3, 2007, and January 9, 2008. Clearly, Marshall Mining was on notice that it needed to make more diligent efforts to protect the safety of its miners.

            Accordingly, I find that Marshall Mining’s violation of section 75.388(g) was the result of the operator’s high negligence, as alleged by the Secretary.

IV.      Penalty

            Secretary’s Penalty Proposal

            While the Secretary has proposed a civil penalty of $8,893.00, she argues that, in light of having established the probability of multiple fatalities resulting from an innundation at the 4A Mine, the penalty assessed against Marshall Mining should be increased. Sec’y Br. at 14-16 (citing Tr. 91-92). The Secretary states that “[i]f the citation would have been marked fatal, the citation would have been assessed at $29,529 (131 points).” Sec’y Br. at 16.

            Marshall Mining argues that “[t]he facts and testimony at trial certainly does [sic] not support an increase in the civil penalty as suggested by MSHA.” Resp. Reply Br. at 5. The company points to the fact that it “had a pump with a capacity of 200 to 300 gallons per minute pumping water from the area in question. As a result of the pumping, there was less than one foot of water across the Number One entry.” Resp. Reply Br. at 5 (citing Tr. 133-34). This argument ignores just how massive an innundation of water from abandoned workings can be, as occurred at Quecreek. The company also argues, without citing the record, that “[t]he mere fact that there may have been some confusion over the requirements of the November and December drill plans clearly show[s] that Marshall [Mining’s] action[s] were not egregious.” Resp. Reply Br. at 5. To the contrary, I find the company’s actions to have been highly negligent.

            Section 110(i) Criteria

            In assessing a penalty, I must independently determine the appropriate amount by proper consideration of the six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(j). See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1993), aff’d, 763 F.2d 1147 (7th Cir. 1984).

            Applying the penalty criteria, I find that Marshall Mining is a medium-sized operator, with a history of prior violations that is not an aggravating factor in assessing an appropriate penalty. Stip. 4; Ex. G-13. As stipulated by the parties, the total proposed penalty will not affect Marshall Mining’s ability to continue in business. Stip. 8. I also note that Marshall Mining raised no objection concerning its ability to pay, in light of the Secretary’s request that a higher penalty be imposed. Marshall Mining demonstrated good faith in achieving rapid compliance with the standard after notice of the violation. The remaining criteria involve consideration of the gravity of the violation and Marshall Mining’s negligence in committing it. These factors have been fully discussed above.

            Assessment

            The Secretary has established a very serious violation of 30 C.F.R. § 75.388(g) that was the result of the operator’s high negligence. The Secretary petitioned the Commission to assess a penalty of $8,893.00 for this violation, which she amended in her Posthearing Brief to $29,529.00. Applying the civil penalty criteria, and in consideration of my findings that the violation was very serious and Marshall Mining was highly negligent, I find that a penalty of $15,000.00 is appropriate.

ORDER

            ACCORDINGLY, it is ORDERED that Citation No. 6649707 is AFFIRMED, as issued, and that Marshall Mining, Incorporated, PAY a civil penalty of $15,000.00 within 30 days of this Decision. ACCORDINGLY, this matter is DISMISSED.

                                                                        /s/ Jacqueline R. Bulluck

                                                                        Jacqueline R. Bulluck

                                                                        Administrative Law Judge

Distribution: (Certified Mail)

Matt S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Nashville, TN 37219-2456

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 North Eagle Creek Drive, Suite 310, Lexington, KY 40509

/tas