DECISION

Appearances:              Alicia A. W. Truman, Esq., U.S. Department of Labor, Office of the Solicitor, Denver, Colorado, for Petitioner

Page H. Jackson, Esq., and Karen L. Johnson, Esq., Jackson Kelly PPLC, Denver, Colorado, for Respondent

Before:                        Judge McCarthy

I. Statement of the Case

            This case is before me upon a Petition for Assessment of Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). The case involves one unsettled Citation No. 8463059, alleging that an unbermed section of a drill bench at Respondent’s Eagle Butte Mine in Campbell County, Wyoming, constituted a violation of 30 C.F.R. § 77.1605(k). Section 77.1605(k) states that “berms or guards shall be provided on the outer bank of elevated roadways.”

            An evidentiary hearing was held in Gillette, Wyoming. The parties introduced testimony and documentary evidence, and witnesses were sequestered. After this case was briefed and my decision was being drafted, the Commission issued its decision in Black Beauty, supra, which found that an elevated bench is a roadway where a vehicle commonly travels its surface during the normal mining routine. 2012 WL 3255590, at *2.

            As explained herein, I find that at the time that Citation No. 8463059 was written, Respondent used the elevated 21 Bench as a roadway for a number of vehicles during the normal drilling and blasting process and did not provide berms. Accordingly, I find a violation of 30 C.F.R. § 77.1605(k). On the instant record, I further find the violation to be significant and substantial, and I affirm the inspector’s findings of moderate negligence, with one person affected. Accordingly, Citation No. 8463059 is affirmed, as written, and the proposed penalty of $1,203 is assessed after consideration of the criteria set forth in section 110(i) of the Act.

            Based on the entire record, including the parties’ post hearing briefs and my observation of the demeanor of the witnesses, I make the following:

II. Stipulated Facts

1.This docket involves a surface coal mine known as the Eagle Butte Mine (the “Mine”), which, at the time the Citation was issued was owned and operated by Foundation Coal West (“Foundation Coal”).

2.         The Mine is currently owned and operated by Alpha Coal West, Inc. (“Alpha Coal”).

3.The Mine, located in Gillette, Wyoming, MSHA ID No. 48-01078, is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C. §§ 801-965.

4.The Administrative Law Judge has jurisdiction over these proceedings, pursuant to Section 105 of the Mine Act.

5.Foundation Coal was an “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. § 803(d), of the coal mine at which the Citation at issue in these proceedings was issued.

6.         Alpha Coal is an “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. § 803(d).

7.Alpha Coal is engaged in mining operations in the United States, and its mining operations affect interstate commerce.

8.David Hamilton is an authorized representative of the United States Secretary of Labor, assigned to the Gillette, WY field office of the Mine Safety and Health Administration’s Coal division, and was acting in an official capacity when the citations were issued.

9.         Foundation Coal demonstrated good faith in abating the violation at issue in this case.

10.       The proposed penalty will not affect Alpha Coal's ability to remain in business.

11.The certified copy of the MSHA Assessed Violations History reflects the history of the mine for fifteen months prior to the date of the issuance of the Citations at issue and may be admitted into evidence without objection by Alpha Coal.

12.       The parties stipulate to the authenticity of their exhibits, but not to the relevance or truth of the matters asserted therein.

III. Additional Findings of Fact

            A.        Background

            On May 13, 2009, the date of the instant inspection, Respondent, Foundation Coal West, Inc., owned and operated the Eagle Butte Mine, an open-pit surface coal mine located just north of Gillette in northeast Wyoming. The mine was acquired by Alpha Coal West, Inc. (Alpha), on July 31, 2009. (Tr. 14-15, 29-30, 109; R. Br at n. 1). Alpha also operated the Belle Ayr Mine located about 30-35 miles away. (Tr. 105-06, 236-37). The mining process used at the Eagle Butte Mine is truck/shovel overburden and coal removal after drilling and blasting, which are integral steps of the mining cycle.

            On May 13, 2009, MSHA inspector David Hamilton, a surface specialist, and supervisory inspector Todd Jaqua, who were both from the Gillette, Wyoming field office, began an EO-1

semi-annual inspection of the Eagle Butte Mine. (Tr. 29). Hamilton testified on the Secretary’s case in chief. Jaqua testified on rebuttal. (Tr. 22-136, 383-410).

            The two inspectors were accompanied by Scott Lindblom, a former pit production technician, who had been employed as a safety representative at the Bell Ayr Mine since February 2009, and shared safety responsibilities at the Eagle Butte Mine. (Tr. 29, 234-36). Lindblom had never accompanied an MSHA inspector before. (Tr. 237). Lindblom reported to then safety manager, Jim Oster, who retired in August 2001, and was replaced by Christine Rhoades, both of whom testified for Respondent. (Tr. 236, 361, 365). Respondent also called the following witnesses: pit planner and drilling and blasting coordinator, Jon Crawford (Tr. 139-232), who was qualified as an expert witness in the use of explosives at surface coal mines; driller and blaster, Alan Kline (Tr. 244-56); and maintenance supervisor, Joseph Case. (Tr. 259-66).

             There is no dispute that berms were not present on the 21 Bench on May 13, 2009. Respondent’s witnesses admit this. (Tr. 206-07, 242). In addition, there is no dispute that the 21 Bench was elevated. Inspector Hamilton and Crawford agreed that the bench was approximately 60 feet above the pit below. (Tr. 52, 207). Therefore, the primary issue in this case is whether the drill bench (21 Bench) was an elevated roadway for purposes of 30 C.F.R. § 77.1605(k).

            Hamilton testified on direct examination that MSHA does not have any specific policy on whether drill benches are elevated roadways for purposes of C.F.R. § 77.l605(k). (Tr. 34). By contrast, supervisory inspector Jaqua testified that after Judge Manning’s decision in Arch of Wyoming, LLC, 32 FMSHRC 568 (May 2010), MSHA's Gillette, Wyoming field office began enforcing an unwritten policy that berms must be built on drill benches because surface coal mines owned by Alpha Coal West were the only ones in the district that were not building berms on drill benches. (Tr. 394, 396). Jaqua conceded, however, that MSHA's Gillette field office has never received a written policy from either the Administrator for Coal Mine Safety & Health or the District 9 manager stating that vehicular traffic on active drilling or blasting areas requires that those areas be bermed in accordance with 30 C.F.R. § 77.l605(k). (Tr. 396-397).

            B.        The 21 Drill Bench Changes From Service Road to Haulage Road to Active Blasting Area

            The record establishes that during March 2009, the area of the mine known as the 21 Bench was predominantly a flat service road approximately forty to sixty feet wide. It was accessed by pickup trucks, service trucks and light-duty vehicles, and provided with berms at mid-axle height of those vehicles. (Tr. 156-57; R. Ex. 15). During April 2009, the service road had been widened and converted to a haul road that was approximately one hundred and forty feet wide. It was accessed by haul trucks and all other vehicles, and provided with berms at least six feet tall. (Tr. 157). Thereafter, sometime prior to the inspection on March 13, 2009, the area of the mine known as the 21 Bench became an active blasting area and was no longer a haul road. (Tr. 161; R. Ex. 17).

            Vehicles could enter the 21 Bench from the main haulage road by means of two entrances located at each end of the bench. (Tr. 38). Both sides of the entrances had large earthen berms at least six feet tall. (Tr. 36). Signs reading “Danger, Hazardous Area, Authorized Personnel Only,” were located at both entry points to indicate that the area was an active drilling and blasting site. (Tr. 36, 38, 55-56, and 381; P. Ex. 5, p. 3). Inspector Hamilton testified, however, that even authorized personnel driving on an unbermed drill bench would be exposed to the unbermed edge. (Tr. 134). The “authorized personnel only” signs restricted access to State-licensed blasters, members of the drilling and blasting crew, and individuals working under the direct supervision of an authorized person. (Tr. 159, 162-163).

            Respondent’s policy of restricting access in active blasting areas was covered in training provided to all contractors and personnel authorized to work in the pit and in annual refresher training given to all miners. (Tr. 263, 369-70). Maintenance and electrical personnel were allowed to enter active blasting areas only when requested by drilling and blasting crew personnel, and only after stopping at the entrance and making further radio contact with the blaster in charge of the active blasting area. (Tr. 263-64). Maintenance supervisor Case testified that he is unaware of any instance where a maintenance crew member violated the policy restricting access to active blasting areas, but any such violation would result in strict discipline, including suspension without pay. (Tr. 264-65). Active blasting areas were discussed and identified during communications meetings between out-going and in-coming shift supervisors. The information discussed was passed on to crews, including equipment operators, who were given a copy of a line-up sheet identifying such areas. (Tr. 368-69).

            The day shift for the drilling and blasting crew began about 5:15 a.m. About four or five times per quarter, the crew operates a night shift. (Tr. 147-48). The Eagle Butte Mine blasts three to five times a day, two to three of which occur in the East Pit where the 21 Bench was located. (Tr. 166). A shot pattern is commonly drilled, loaded, and shot in a single shift. (Tr. 167). The average shot pattern in the East Pit involved the use of about 36,000 pounds of explosives. (Tr. 167).

            The drilling and blasting crew uses specialized equipment including track-mounted drills, a bulk truck carrying explosive agents, a de-watering truck, and a Bobcat stemmer. (Tr. 171). None of the specialized equipment used in the active blasting areas is utilized elsewhere in the active mining areas of the mine. (Tr. 191-193). According to Crawford, the equipment operated by the drilling and blasting crew does not exceed a speed of one to two miles per hour (Tr. 172, 189), and is operated on the inside of the outer most roll of drill holes, except for the drill itself, which is located at least 25 or more feet from the edge of the highwall. (Tr. 188-89, R. Ex. 7).

            C.        The Instant Inspection and Citation of the 21 Bench on May 13, 2009

            As the inspection party drove into the East Pit of the Eagle Butte Mine in a small sports utility vehicle on May 13, 2009, Hamilton noticed the “white drill” on the 21 Bench about 100 feet from the highwall, and requested that Lindblom drive him over to the drill so that Hamilton could inspect the equipment. (Tr. 35-37, 56, 132). Lindblom drove into the active blasting area without stopping or calling the blaster in charge for permission to enter the area because he did not want to provide advance notice of an MSHA inspection. (Tr. 241). As the inspection party vehicle came through the entrance at the beginning of the pit and into the open bench area, Hamilton observed that along the highwall side “there was no berm on the outer edge of the road that went all the way across Bench 21.” (Tr. 33). Approximately 1,000 feet of this curved bench did not have berms along the length of its outer bank on the highwall side. (Tr. 47, 51; P. Ex. 4 (unbermed area designated between X and Y)).

            Hamilton testified that the bench was between 100 and 70 feet wide, but only about 40 feet of bench directly adjacent to the unbermed bank, was suitable for vehicular traffic due to the rutted and muddy condition of much of the road. (Tr. 49-51). Hamilton testified that “[t]he heavy equipment, track dozers, loaders, by looking at the tire tracks, scrapers, blades, were driving more towards the berm” located at the bench entrance in rougher road, whereas pickups and light duty vehicles have their own smoother road closer to the edge. (Tr. 50-51). The drop-off from the edge of the bench to the ground below was approximately 60 feet. (Tr. 52, 207).

            Hamilton testified that in order to access the raised area where the white drill was located on May 13, 2009, vehicles entering from the west side of the 21 Bench would be driven onto the unbermed area of the bench and then make a U-turn away from the unbermed area to access the ramp leading to the drill. (Tr. 37, 63; see, e.g., P. Ex. 4 (path marked with red pen 2)). Vehicles leaving the area where the drill was located would also need to turn around on the bench heading toward the unbermed area and exit the way they entered through the west entrance, or proceed across the entire unbermed roadway to exit on the east side of the bench. (Tr. 76).

            Hamilton issued Citation No. 8463059 at about 9:00 a.m. on May 13, 2009 for a violation of 30 C.F.R. 77.1605(k), which provides that “[b]erms or guards shall be provided on the outer bank of elevated roadways.” (Tr. 32-33; P. Exs. 2 and 3). The citation alleges verbatim that:

Approximately 1000 feet of elevated roadway was not guarded or have [sic] a berm on the outer bank, on the 21 bench, the roadway was used to access and maintain Drillteck 55 SB c/n 107 that was drilling the rib next to the road. 301 Marion shovel c/n 1 had removed overburden next to the roadway creating a sixty foot high wall. Posing hazards of over travel into the pit below.

(P. Ex. 2).

            Hamilton determined that the alleged violation was the result of moderate negligence and was reasonably likely to cause permanently disabling injuries to one person. The citation was designated as significant and substantial. Id. In this regard, Hamilton’s inspection notes state that it was reasonably likely that a permanently disabling injury would result from overtravel at the unbermed edge of the highwall into the pit 60 feet below as the roadway narrowed while the shovel progressed with each pass. (P. Ex. 3, p. 1).

            Hamilton observed “back break” cracks along the edge of the 21 Bench, which he measured to be six to ten feet from the highwall edge. (Tr. 90-91; Sec’y Ex. 3 at 1-2). Hamilton testified that “back break” are cracks or unstable top in the virgin ground that typically run parallel to the edge of the shot, which are caused by the energy from the shots traveling back into the virgin ground. (Tr. 90-91). Both Hamilton and Crawford testified that back break is evidence of unstable ground and should not be covered up. (Tr. 127, 182-84). Hamilton testified that “all mines build [berms] outside of the back break so you don’t drive there,” because the “ground could crumble.” (Tr. 91-92).

            The alleged violation was abated when a 24 Caterpillar blade built a berm a safe distance from the edge of the highwall and back break, which took approximately fifteen minutes. (Tr. 91, 100-02; P. Ex. 2). Thereafter, Alpha Coal West began building safety berms along the edges of the highwalls in active blasting areas at both the Eagle Butte Mine and the Belle Ayr Mine. (Tr. 293).

            D.        The Record Evidence that Vehicles Commonly Used the 21 Bench

                        As a Roadway During Drilling and Blasting Operations

            On direct examination, Hamilton testified that a given area in a coal mine could be a roadway and a workplace. (Tr. 34). On cross examination, it was established that Hamilton determined a violation based solely upon the entrance of the inspection vehicle. (Tr. 120-121). He opined that a single entry by a rubber-tired vehicle would make the drill bench a roadway. (Tr. 126). Hamilton testified that one would have to travel a roadway to get to a workplace, and that a workplace is not necessarily a roadway unless you are building a roadway, and then it is both. (Tr. 126). Hamilton acknowledged that when miners are performing work that is a part of the mining cycle, that area is a workplace. (Tr. 127). Crawford testified that drilling and blasting of overburden and coal are integral steps in the mining cycle. (Tr. 150-51).

            At the time that Hamilton determined that there was a violation of 30 C.F.R. § 77.1605(k), the vehicle in which he was riding had not passed the unbermed area because Hamilton had instructed Lindblom to stop the vehicle before it reached the “hazardous area.” (Tr. 121-22, 133). Thus, Lindblom had not driven on an alleged elevated roadway that was unprotected by a berm. However, Hamilton asked Lindblom, “Is this the way you come in? Lindblom replied, “Yes.” (Tr. 45, 122, 133). Hamilton saw tracks of equipment and pickups that had been using the “road.” (Tr. 133).

            The record establishes that Hamilton determined that there was a violation prior to interviewing the white drill operator (Alan Cline) or observing any other vehicles present on the 21 Bench. With the exception of the vehicle operated by Lindblom, all of the vehicles that Hamilton observed on the 21 Bench that day entered the area after the safety berm had been installed and the citation had been terminated. (Tr. 121). Hamilton did not witness any vehicles cross the 21 Bench during the inspection. (Tr. 38).

            While the berm citation was being terminated, Hamilton inspected the white drill. (Tr. 62). He spoke to Alan Kline, the white drill operator and asked him, “How did you get here?” Kline told Hamilton that the red drill operator (Sam Mullins) dropped him off and then drove across the bench and out the other entrance/exit to the red drill. In essence, Kline told Hamilton, after the citation had issued, that the red drill operator had entered the 21 Bench on one end to drop Kline off, and then exited on the other end to get to his workplace on a higher drill bench. (See Tr. 40-41, 62, 207-209; P. Ex. 3, p. 2). Kline also told Hamilton that the bench was being used as a “shortcut still before it was all mined out so people didn’t have to drive all the way around the mine to reach this other side. . .” (Tr. 80).          

            Hamilton issued two citations at the white drill, one for an electrical violation and one for a mechanical violation. Said violations, which are not at issue here, required an electrician and a mechanic to abate the violative conditions. (Tr. 63). Hamilton observed both the electrician and mechanic enter the 21 Bench and drive to the drill area in rubber-tired trucks after the berm had been erected to abate Citation 8463059. (Tr. 65; Sec’y Ex. 3, p. 3). Drilling and blasting supervisor Crawford also drove to the white drill in a rubber-tired pickup after the drill citations were written to discuss them with Hamilton and Lindblom. (Tr. 67-68). The inspection party then drove across the 21 Bench and through the opposite entrance/exit, observed the posted signs, and then turned around and drove back across the 21 Bench. (Tr. 38-39).

            Based on his experience, Hamilton testified about the types of vehicle that would drive onto the drill bench during the normal mining process of drilling and blasting. (Tr. 70). As previously noted, the white drill operator told Hamilton that he had been dropped off that morning by the red drill operator, who entered the 21 Bench from one side and drove all the way across the bench to exit on the other side. (Tr. 40-41, 62, 207; P. Ex. 3, p. 2). This occurred at approximately 5:15 a.m., when it was still dark outside. (Tr. 207-08). Hamilton also testified that if the drill needed fuel, a rubber-tired fuel truck would be driven onto the bench about once a shift to fuel the drill. (Tr. 75). Crawford confirmed this. (Tr. 212). Similarly, if the drill needed cleaning, a three-quarter ton, rubber-tired pickup truck would be driven onto the bench towing a trailer and pressure washer so that the pressure washer could be used to wash away accumulations, such as oil on the drill. (Tr. 66-67). In fact, Hamilton witnessed this in order to abate another citation that had been written at the drill. (Tr. 66).

            Based on his experience, Hamilton also testified that once the drill had completed making holes in the overburden, a powder or bulk truck would be driven out onto the bench to fill the holes with explosives (powder). (Tr. 70). Crawford confirmed this and further acknowledged that powder truck operators have some blind spots when driving on the bench. (Tr. 209). Hamilton testified that if any of the drill holes are filled with water, a rubber-tired pump truck is driven onto the bench to pump out the water, before the holes are filled with powder. (Tr. 71-72). Crawford confirmed this. (Tr. 211). Hamilton also testified that a pickup truck would tow a rubber-tired skid steer loader (Bobcat stemmer) out onto the bench, and then the skid steer would be driven off the trailer and onto the bench so it could backfill and pack the drill holes with dirt, after they were filled with powder. (Tr. 72). Crawford confirmed this. (Tr. 211). Hamilton also testified that a blaster would drive onto the bench in a pickup truck to tie the charges. (Tr. 73). Crawford confirmed this. (Tr. 211). In fact, the record establishes that a number of these vehicles may be present on the bench at the same time. (Tr. 73, 211; R. Exs. 4-7).

            Furthermore, after a blast was fired, a blaster would drive back out to the bench in a pickup truck to verify that all the shots had cleared and no live boosters were left in the holes. (Tr. 73-74). The record also establishes that at least once every shift, a certified examiner must perform a workplace examination of the whole bench, and additional examinations are required after every rain, freeze or thaw. (Tr. 74). In fact, Crawford testified that he personally examines all working areas of the mine at least once per day, and he would drive onto the drill bench in a pickup truck to do so. (Tr. 214).

            E.        Respondent’s Testimony and Evidence About Alleged Hazards

Associated With Building Berms on Drill Benches and Alleged

                        Inconsistent Enforcement of 77.1605(k) by MSHA

            Crawford also testified about the hazards of building a berm on an active drill bench. Essentially, he testified that the very act of building a safety berm along a highwall in an active blasting area masks evidence of “back break” and hinders the drilling and blasting crew in determining whether they will be working on unsafe ground. (Tr. 196, 199). In this regard, he testified that it is impracticable to build a safety berm along the edge of a highwall in an active blasting area without utilizing heavy equipment, which must work in close proximity to the highwall. (Tr. 200-201). Respondent typically uses a blade to erect a safety berm along the edge of the highwall to minimize the amount of time that a miner is exposed to the highwall. (Tr. 198-199, 200). Both Hamilton and Crawford testified that when a blade, loader, scraper, or dozer is used to erect a berm along a drill bench highwall, the “back break” can be covered up and hidden from observation. (Tr. 128-129, 184-185). Crawford also testified that hiding “back break” prevents the drilling and blasting crew from knowing whether the ground where they place the drill is a safe or unsafe area. (Tr. 185). Hamilton testified, however, that if you see back break and you know where it is, you stay on the other side of it, so that you don’t cover it up after you know where it is. (Tr. 127-28).

            On cross-examination, Crawford conceded that other equipment besides a blade, such as a dozer or front-end loader, could be used to create a berm, and such equipment would run perpendicular and not parallel to the edge, and therefore not travel as close to the edge as the blade. (Tr. 223). He also conceded that although the blade would smooth material across the bench to build the berm, the mine could deposit overburden from another area of the mine to build the berm (Tr. 223), which could minimize the effect of covering back break. He further testified that the access road to the drill bench could have built so that service vehicles did not have to be driven onto the drill bench, (Tr. 224-25), although the drilling and blasting crew vehicles would still need to drive onto the drill bench. (Tr. 225). In addition, Crawford recognized that the decision to use blades to construct the berms was a deliberate choice made by Respondent, which was unconstrained by any MSHA directive about how the berm should be constructed. (Tr. 198, 223).

            In an effort to show that MSHA’s interpretation of the word roadway to cover an active drilling and blasting workplace is unreasonable because miners risk serious injury when building the berm, Respondent provided testimonial and photographic evidence of ground failure resulting in near miss incidents and other hazards. For example, former safety manager Oster testified that on May 18, 2009, five days after the instant citation, a 24 H Caterpillar blade almost went over a highwall while erecting a windrow at the edge of a highwall in an active blasting area at Belle Ayr Mine. (Tr. 293-300; R. Ex. 8). Oster testified that as the experienced operator was backing up to make a second pass to build the windrow, he came too close to the edge of the highwall and the ground gave way. (Tr. 297-299). Although Oster testified that the operator covered up back break with the first pass and did not realize where the highwall edge was located, I give this testimony little weight because Respondent did not call the operator of that blade as a witness even though he was still employed by the mine. (Tr. 300). In addition, I find that had the operator built the windrow outside the back break as inspector Hamilton testified should be done, the operator error could have been avoided because the blade would not have been operated so close to the edge of the highwall.

            Oster testified about another incident about January 2010 at the Belle Ayr Mine. A DM-45 Drilltrech drill was operating in an active blasting area where back break from the previous shot had created instability at the highwall face. Oster testified that no cracks were visible, and he could not say for certain whether they had been concealed because of blade work used to create a berm. In any event, after several holes were drilled, there was a loss of ground support and the drill and its operator dropped five to ten feet vertically and slid approximately five feet outward toward the highwall face. (Tr. 315-322, R. Ex. 19).

            Oster also testified about R. Ex. 18, a section 77.1605(k) citation that Alpha received on January 19, 2010 at the Eagle Butte Mine. (Tr. 300-311; R. Ex. 18). According to that citation, which issued about six months after the instant citation, a berm was not provided on a 55-foot highwall where material was being pushed away from the edge by a miner, who was operating a rubber-tired dozer. The dozer operator over traveled the high wall and overturned the dozer into the base of the pit causing injury and entrapment. (R. Ex. 18). Oster testified that the operator had overrun a safety windrow late in the evening because she was texting on her cell phone. (Tr. 303-06).

            Crawford also testified that building a safety windrow or berm can result in having to drill shot holes more than twenty-five feet away from the highwall. Such a result requires each shot to pull increased burden. (Tr. 201). The increased burden placed on each shot enhances the risk of “fly rock,” which can travel a half mile from the site of the explosion and is the number one cause of injuries resulting from the use of explosives. (Tr. 201-202). Crawford further testified that increased burden can result in inadequate fragmentation of the shot material, which creates hazards to the shovel operators and truck drivers involved in loading out the material. (Tr. 202-203).

            Respondent also offered testimony regarding MSHA’s alleged inconsistent enforcement of 30 C.F.R. § 77.1605(k). Crawford testified that none of the mines that he was familiar with in the basin area utilized safety windrows or berms on active drill benches when he was visiting them prior to 2000. (See Tr. 145, 204-05). Similarly, Oster testified that none of the mines where he worked prior to 2005 as a blaster or safety director built safety windrows or berms in active blasting areas. (Tr. 288-89). Oster discussed the instant May 13, 2009 citation with other safety managers from different mines at a safety committee meeting of the Wyoming Mining Association about mid to late summer of 2009, and he learned that none of the other mines had received similar notification or citation at that point in time. (Tr. 290-92).

            Rhoades also addressed the issue. She operated a blade at the Eagle Butte Mine prior to 2004, but was never asked to build a safety windrow or berm in an active blasting area. Rhoades confirmed that neither Eagle Butte Mine nor Belle Ayr Mine ever received a section 77.l605(k) citation regarding active blasting area prior to May 13, 2009. (Tr. 371-72).

III. The Parties’ Positions

            A.        Respondent’s Arguments  

            Respondent makes two principal arguments. First, that the active blasting areas at the Eagle Butte Mine are not subject to the berm requirement in 30 C.F.R. § 77.1605(k) because those areas are not elevated roadways. Second, that if a violation of 30 C.F.R. § 77.1605(k) occurred, it was not significant and substantial.

            With regard to the first argument, Respondent notes that Hamilton determined that the 21 Bench was an elevated roadway because of the rubber-tired vehicular traffic using the road from one end to another, although he never saw a vehicle transit the 21 Bench. (R. Br. at 12, citing Tr. 34, 38-39, 66-67, 71-72). Further, Respondent faults Hamilton’s opinion that if anyone travels in an area even once, then that area becomes a roadway (Tr. 126), and notes that the Secretary failed to produce any evidence suggesting that MSHA has adopted the “rubber-tired” or “one-time entry” criteria as agency policy. (R. Br. at 12). In fact, Respondent relies on record testimony that MSHA does not have a specific policy as to whether drill benches (active blasting areas) are elevated roadways for purposes of 30 C.F.R. § 77.l605(k). (R. Br. at 12-13, citing Tr. 34, 394-97).

            Respondent argues that the active blasting area in this case is a working place isolated from other portions of the mine by barricades of earth and posted signs that read: "DANGER, Hazardous Area, Authorized Personnel Only." (R. Br. at 16). Respondent argues that vehicles do not drive through active blasting areas to travel from one point of the mine to another, nor do vehicles transport material through or out of the area. Moreover, Respondent contends that each vehicle’s entry is an integral part of the drilling and blasting cycle, and thus the 21 Bench is properly designated a work place, not an elevated roadway. (R. Br. at 17-18). In addition, Respondent asserts that the active blasting areas are not unattended areas likely to be used as a path from one portion of the mine to another. Respondent says this is because a shot pattern is commonly drilled, loaded, and shot in a single shift, and the blasts utilize 36,000 pounds of explosives, and they occur two to three times daily in the east pit, where unauthorized personnel are denied access and authorized personnel are trained in the uniqueness of blasting hazards, with updates communicated each shift. (R. Br. at 16-17). Accordingly, Respondent argues that 30 C.F.R. § 77.1605(k) does not apply to the 21 Bench as it existed on May 13, 2009. (Id. at 18).

            Finally, Respondent argues that the regulation should not be construed so expansively as to expose miners to unnecessary risk of death or serious injury. Respondent highlights its evidence of two instances where large machines and their operators were endangered because they were building the berm which MSHA insisted upon, or because the berm building process obscured evidence of unsafe ground. (R. Br. at 18; R. Exs. 8 and 19). By contrast, Respondent notes that MSHA presented no evidence of instances where a vehicle being used by a drilling and blasting crew went over a highwall because of the lack of a berm. (R. Br. at 18). Thus, Respondent says that MSHA’s interpretation of § 77.l605(k) is unreasonable and unworthy of deference because it requires “elevated roadways” to encompass any area of a mine that has the potential for over travel or overturning of equipment, regardless of use of that area. (R. Br. at 18-19) (citations omitted).

            With regard to its second argument, that even if a violation of 30 C.F.R. § 77.1605(k) occurred, it was not significant and substantial, Respondent claims that the Secretary failed to prove that the violation was reasonably likely to contribute to an injury. (R. Br. at 20). Respondent notes that when inspector Hamilton was driven onto the 21 Bench, the only other vehicle present was the white drill, located about 100 feet from the edge of the highwall. (R. Br. at 20-21, citing Tr. 132; P. Ex. 4). Respondent states that Hamilton never mentioned the drill in his testimony about why an injury was reasonably likely to occur. Respondent argues that Hamilton testified about a confluence of factors which “could” impact the likelihood of an injury occurring such as mechanical or brake failure or operator error on rough roads in inclement weather with impaired visibility. (R. Br. at 21, citing Tr. 84, 96). Respondent points out that Hamilton’s notes do not mention these factors when he determined the violation to be significant and substantial. (Id., citing P. Ex. 3, l; Tr. 129).  

            Respondent argues that the cited condition was unlikely to lead to an injury because Eagle Butte Mine had never erected berms along highwalls in active blasting areas and MSHA could not identify a single miner injured by that practice. In addition, access to such areas is limited to state-licensed blasters, members of the drilling and blasting crew, or other authorized personnel, who have received extensive training in how to work safely in such areas. Finally, Respondent argues that Crawford gave the only credible, first-hand testimony about vehicles operating on the 21 Bench at one to two miles per hour and a minimum of twenty-five feet away from the highwall. (R. Br at 21).

            In sum, Respondent asserts that the Secretary failed to prove by a preponderance of the evidence that the alleged violation was reasonably likely to contribute to an injury because all the testimony offered was speculative, unsubstantiated, and post-hoc rationalization by the issuing inspector. Respondent concludes that when this speculation and conjecture is weighed against the testimony of Crawford and the historical absence of any injuries from lack of berms in active blasting areas at the mine, the violation was not significant and substantial. (R. Br. at 22).

            B.        The Secretary’s Arguments

            The Secretary argues that Respondent violated 30 C.F.R. § 77.1605(k) by failing to provide berms on an elevated roadway and a penalty of $1,203 is appropriate. (P. Br. at 3). The Secretary cites previous cases in which the Commission and numerous judges have held that benches can constitute elevated roadways. (P. Br. at 6-7). The Secretary emphasizes that nothing about the elevated 21 Bench exempts it from the berm requirement, and she emphasizes that there are no exceptions from the standard for restricted access, short duration, or authorized personnel with specific training. (P. Br. at 8, citing Tr. 107). The Secretary further argues that if vehicles are driven on an elevated bench without berms, the risk of over travel is present whether the roadway is permanent or temporary, or accessed by authorized or unauthorized personnel. Id. Moreover, authorized personnel do not give instructions to unauthorized personnel about how fast or close to the edge to drive [or which way to exit]. (P. Br. at 8, citing Tr. 257). The Secretary notes that despite the authorized-personnel-only signs, physical access to the bench was not prohibited, and the signs provided no notice that the bench lacked berms. (Id., citing Tr.36, 218, 267). See, e.g., Arch of Wyoming, supra, 32 FMSHRC at 576 (signs limiting access to authorized personnel only did not affect the status of the drill bench as elevated roadway); cf., Manalapan Mining Company, 16 FMSHRC 1727, 1733 (Aug. 1994) (ALJ) (§ 77. 1605(k) violation found where miners drove on elevated roadway, which was blocked from use by wire ropes and company policy, and was not wide enough for building berms and providing needed access). The Secretary argues that miners such as fuel truck drivers, mechanics, and power washers drive onto the bench without receiving special drilling and blasting training related to explosives, and that Respondent offered no evidence that training was given for special hazards that arise when driving on unbermed roads. Moreover, the Secretary notes that even if such helpful training had been provided, it would not necessarily prevent over travel, which is why berms are required on elevated roadways. (P. Br. at 8-10).

            The Secretary also challenges Respondent’s argument that because the 21 Bench was an active drilling and blasting workplace, it could not also be a roadway, noting that there is nothing in Commission case law or MSHA regulations or policy that so provides. The Secretary notes that the judge’s decision in Higman Sand & Gravel, Inc., 24 FMSHRC 87, 106 (Jan. 2002) (ALJ), finding that the area along a pond used by a loader and excavator was a working place and not a roadway, did not state that a single place could not be both a working place and a roadway under different circumstances. In fact, Inspector Hamilton testified that an area can be both a roadway and a workplace. (P. Br. at 10, citing Tr.34-35).

            The Secretary further notes that nothing in MSHA regulations or policy provides that a roadway must be used to get from one place to another, but regardless, the 21 Bench was used as a roadway to get from one area of the mine to another since the “red drill” operator did so after dropping off the “white drill” operator. The Secretary emphasizes Hamilton’s testimony that some miners referred to the bench as a “shortcut,” and his observation that there would be no need for openings and signs at both ends of the bench if vehicle use at both ends was unintended. (Id., citing Tr. 80, 96).

            The Secretary argues that the regulation requiring that berms be provided on elevated roadways is clear and unambiguous; therefore, the issue of deference need not be reached. Even if § 77. 1605(k)'s application to drill benches is determined to be ambiguous, however, the Secretary argues that her interpretation that drill benches on which vehicles travel are roadways is reasonable and entitled to deference because it comports with MSHA's regulatory mission of protecting the safety and health of miners that drive on drill benches. (P. Br. at 10-11). Moreover, the Secretary argues that she has publically and consistently expressed her interpretation that drill benches are elevated roadways when vehicles are driven on them. Additionally, she notes that MSHA set forth a broad definition of “roadway” in the Program Policy Manual provision for § 77.1605(k) that incorporates benches used as roadways, and this definition has been published in MSHA's Haul Road Inspection Handbook since 1999. (See P. Ex. 6 and 7).

            The Secretary argues that R. Ex. 20, offered to show inconsistent enforcement, is irrelevant as that Program Information Bulletin relates only to excavators, which were not used on the 21 Bench. Although the bulletin is silent about berms, the Secretary argues that it is mere speculation to conclude that this silence means that MSHA would not require berms on elevated roadways where excavators work. Similarly, although the bulletin refers to workplaces, the Secretary notes that it does not state that an excavator workplace cannot also be a roadway. (P. Br. at 12, n. 6).

            Similarly, the Secretary discounts Respondent’s reliance on R. Ex. 18, and MSHA’s abatement of that § 77.1605(k) citation without requiring a berm, as evidence of inconsistent interpretation of the standard. The Secretary emphasizes that R. Ex. 18 was issued by a different inspector six months after the instant citation for a violation at a coal bench where vehicles were not intended to be driven near the edge of the bench, so a different form of abatement was permitted. Further, Gillette Field Office Supervisor Jaqua testified that this was an isolated instance in which the citation was terminated in error without requiring berms to be built. (P. Br. at 12, n. 7, citing Tr. 387, 403). In any event, the Secretary notes that “[t]he Commission has long held that an inconsistent enforcement pattern by MSHA inspectors does not prevent MSHA from proceeding under an application of the standard that it concludes is correct.” (P. Br. at 13, citing Austin Powder Co., 29 FMSHRC 909, 920 (2007)).

            The Secretary further argues that Respondent’s evidence (R. Exs. 8 and 19) regarding the alleged hazards involved in building berms on drill benches is irrelevant and merely a veiled effort to advance a “greater hazard” defense, which is not available in MSHA proceedings, unless Respondent has first petitioned MSHA for a modification of the standard. (P. Br. at 13-14 and n. 8, citing Sewell Coal Co., 5 FMSHRC 2026, 2029 (1983); RS&W Coal Co., 29 FMSHRC 828, 231 (Sept. 2007) (ALJ). And, says the Secretary, Respondent has not petitioned MSHA for a modification from the standard, instead opting to “see where this [case] went first.” (Id., citing Tr. 225, 350, 381-82).

            Even if relevant, however, the Secretary faults Respondent for failing to establish that it was more dangerous to build berms on drill benches than to forego them, and emphasizes Hamilton’s contrary testimony that berms be built a safe distance from the edge of drill benches to keep vehicles away from the edge and avoid covering back break. (P. Br. at 14, citing Tr. 92-102). The Secretary also enumerates record evidence of less hazardous options for building berms. For example, in lieu of using blades, which run parallel to the edge, Respondent could dozers or loaders, which approach perpendicular to the edge, do not travel as close, and can retreat more quickly. (P. Br. at 14, citing Tr. 101, 178, 223, 349-50). Or, Respondent could bring in material used elsewhere to construct the berm so as to avoid obscuring back break. (Id., citing Tr. 224). Moreover, the Secretary notes Hamilton’s testimony that he was unaware of accidents that occurred at other mines when building berms on drill benches. (Id., citing Tr. 105-07).

            Next, the Secretary argues that the failure to provide berms on the elevated roadway constituted a significant and substantial violation. As explained above, she determines that the violation of a mandatory safety standard, 30 C.F.R. § 77.l605(k), contributed to the discrete safety hazard of overtraveling the unbermed roadway and falling into the pit 60 feet below. (P. Br. at 14-15, citing Tr.82 and Black Beauty Coal Comp., 32 FMSHRC at 360. The Secretary highlights record evidence establishing that the failure to berm the elevated roadway created a reasonable likelihood that the hazard would result in an injury. She notes that back break was present along the edge of the bench, a condition caused by blasting that makes the bench more likely to give out if heavy vehicles travel on it. (P. Br at 16, citing Tr. 90-92, 217). In addition, the width of the bench was always changing as a mechanized shovel removed material below, making it more likely that a vehicle operator would overtravel, not realizing that the edge had moved. (Id., citing Tr. 83, 216). She notes that the day shift began before sunrise, when vehicle operators were more likely to fail to see the unbermed edge and overtravel in dark or dim light. (Tr. 87-88). The Secretary further notes that weather conditions at times made the road wet and muddy, resulting in slippery road conditions and wear and tear on vehicles. Similarly, the bench may freeze or become covered with ice or snow, and windy conditions kick up dust in the air, which obscures visibility, as does rain or snow. (Id., citing Tr. 83-85, 217). The record also establishes that the condition of the roadway on the bench was bumpy and irregular, making mechanical failure of a vehicle driving on the bench more likely. (Id., citing Tr. 53, 85-86; P. Ex. 5 (photographs showing rough condition of road). The Secretary argues that there is always a risk of mechanical failure or driver error for vehicles traveling on elevated roadways. (Id., citing Tr. 86).

            The Secretary concludes that all of the foregoing factors make it reasonably likely that a vehicle operating on the bench would go over the edge of the unbermed roadway. (Id., at 16-17, citing Tr. 344-45 and R. Ex. 18 (where a dozer operator, familiar with the bench and properly trained against cell phone usage, became distracted while texting and backed the dozer off the edge of an unbermed bench)). In other words, even with restricted access, proper training, and policies directed at safety, driving on unbermed drill benches presents a serious safety hazard that is reasonably likely to result in an injury, says the Secretary. (Id. at 17).

            The Secretary further argues that the failure to provide berms on the elevated roadway created a reasonable likelihood that any resulting injury would be at least permanently disabling. She argues that if any of the vehicles that traveled on the 21 Bench were to go over the edge and fall 60 feet to the pit below, the operator would be fortunate to sustain only permanently disabling injuries. (Id. at 17, citing Tr. 94).

            Finally, the Secretary argues that the violation was the result of Respondent’s moderate degree of negligence, i.e., a scenario where the operator knew or should have known of the violative condition or practice, but there are mitigating circumstances. (Id. at 18, citing 30 C.F.R. § 100.3(d), Table X, and Tr. 96). The Secretary reiterates that MSHA has enforced a policy of requiring berms on elevated drill benches used as roadways for many years, and the Program Policy Manual makes clear that section 77.1605(k) “is applicable to all elevated roadways on mine property, including roads used to transport coal, equipment, or personnel, and regardless of the size, location or characterization of the roadway.” (Id. at 18, citing P. Ex. 6; Tr. 97-99; see also MSHA's Haul Road Inspection Handbook (P. Ex. 7)). The Secretary also relies on Hamilton’s testimony that MSHA inspectors discussed the importance of berms at dumping locations and on elevated roadways during opening conferences at previous inspections. (Id. at 18, citing Tr. 97). Finally, the Secretary cites testimony from Hamilton and Jaqua that all the other non-Alpha-owned mines in the area had berms on their drill benches. (Id. at 18, citing Tr. 105, 396). Therefore, she argues that Respondent should have realized that berms were necessary on the 21 Bench.

            The Secretary requests that a civil money penalty be assessed at or above the proposed amount of $1,203.

IV. Conclusions of Law and Legal Analysis

A.        Violation of 30 C.F.R. § 77.1605(k) --The Drill Bench was a Roadway at the Time of the Citation Because Vehicles Commonly Traveled its Surface During the Normal Mining Routine, Including During Drilling and Blasting Operations

            There is no dispute that the 21 Bench was elevated to a height of sixty feet and that no berms were present in the drilling and blasting area. Consequently, the primary issue is whether the area in question was a roadway for the purposes of section 77.1605(k).

            The Commission recently addressed the issue of whether a bench was a roadway for purposes of section 77.1605(k) in Black Beauty, supra, 2012 WL 3255590, at *2-3. That case involved, inter alia, the failure to provide sufficient protection against overtravel on a dragline bench. The threshold legal issue for disposition of the dragline bench citation was whether that bench was a roadway pursuant to section 77.1605(k). Chairman Jordan and Commissioners Cohen and Nakamura found that the dragline bench was a roadway. Commissioner Young joined in the result. Commissioner Duffy dissented.

            The dragline bench at issue in Black Beauty was 180 feet to 200 feet wide and was elevated about 50 feet above the pit floor. At the time of the inspection, Black Beauty was in the process of moving a dragline, which weighed ten million pounds. During the move, the dragline suffered electrical problems, which caused it to come to a stop on the bench. The berms on the bench had been lowered in order to accommodate the dragline’s boom. The dragline was not a rubber-tired vehicle. Rather, “shoes” would lift and move the machine in increments of eight feet up to 450-500 feet per hour. (2012 WL 3255590, at *2).

            The issuing inspector in Black Beauty observed a service truck near the dragline after two miners had driven the truck along the bench to the dragline so that welding maintenance could be performed while the dragline was idled. The inspector issued Citation No. 6671134 under section 104(d)(1), alleging that the operator failed to provide berms or guards on the outer bank of an elevated roadway as required by 30 C.F.R. § 77.1605(k). The citation noted that the dragline bench travel road did not have a berm for a distance of approximately 2/10 of a mile where a service truck had traveled within 18 feet of the outer banks of the bench. (Id).

            The judge determined that once rubber-tired equipment begins operating on the bench, especially within close proximity to the edge, the bench becomes a roadway. (32 FMSHRC at 359, citing El Paso Rock Quarries, Inc., 3 FMSHRC 35, 36 (Jan. 1981)). The judge affirmed the citation, concluding that the elevated roadway did not contain adequate berms as required by section 77.1605(k). (Id. at 358-59). The judge further concluded that the violation was S&S and attributable to the operator’s unwarrantable failure to comply with the cited standard. (Id. at 361-62).

             The Commission majority concluded that the judge did not use the proper inquiry in finding that the bench was a roadway simply because a rubber-tired vehicle began operating on it. They relied on precedent finding that an elevated area, such as a bench, is a roadway where a vehicle commonly travels its surface during the normal mining routine. (2012 WL 3255590, at *3, citing by way of example Capitol Aggregates, Inc., 4 FMSHRC 846, 847 (May 1982)(ramp which was commonly traveled by a front end loader was found to be a roadway)); Burgess Mining and Constr. Corp., 3 FMSHRC 296 (Feb. 1981)(bridge which was commonly traveled by trucks during the normal mining routine was a roadway governed by section 77.1605(k); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 36 (Jan 1981). Consequently, the presence of a rubber-tired vehicle on the bench, by itself, did not mean that the bench was a roadway. (2012 WL 3255590, at *3).

            Nevertheless, the Commission majority concluded that the bench at issue was a roadway at the time that the inspector issued the citation and the judge’s error was harmless. The majority relied on record evidence demonstrating that vehicles commonly traveled over the surface of the bench during the normal mining routine, including during a routine dragline move. Black Beauty acknowledged that haulage trucks traveled the area before the dragline move and that after the move the operator planned to resume regular traffic. Further, dragline moves were common at the mine, occurring every seven to ten days, and it was routine for a rubber-tired backhoe to accompany the dragline and carry its cable. Therefore, the majority found that the dragline move did not alter the bench’s status as a roadway for rubber-tired vehicles. Additionally, it was common for a truck to travel on the bench if the dragline required service during a move. The majority concluded that such record evidence demonstrated that the character of the bench was unchanged and it remained a roadway during the dragline move. Accordingly adequate berms were required. (2012 WL 3255590, at *4).

             Judge Manning decision in Arch of Wyoming, LLC is also particularly instructive here. (See 32 FMSHRC 568 (May 2010) (ALJ)). In that case, the parties filed cross-motions for summary decision on the issue of whether drill benches were roadways for purposes of section 77.1605(k). (Id.). The judge found a violation of section 77.1605(k) because the operator failed to maintain berms along two elevated drill benches. (Id. at 576). The evidence established that during normal drilling and blasting operations, a drill, ANFO truck, skidder, and pickup truck traveled along 35-to-45 foot-wide elevated benches to drill holes and load ANFO. (Id. at 575). The judge concluded that the drill benches were used as elevated roadways. The fact that vehicles did not transport material out of the area was not determinative. (Id.). Nor was the safety standard limited to roadways used by haulage vehicles that transport coal, equipment and personnel. (Id. at 575-76, citing El Paso Rock Quarries, 3 FMSHRC 36 (Jan. 1981) (hauling explosive materials is the kind of haulage contemplated by the safety standard)). The record in Arch of Wyoming established that the vehicles used in drilling and blasting entered the benches when drilling commenced, traveled along the benches as holes were loaded, and were removed from the benches before detonation of the explosives. Although the vehicles traveled at a low rate of speed and access to the benches was limited, these factors did not affect the status of the benches as elevated roadways. (Id. at 576).

            Applying the foregoing precedent to the facts in this case, I find that the Secretary established by a preponderance of the evidence that at the time of the May 13, 2009 citation, the 21 Bench was used as a roadway during routine drilling and blasting operations at Respondent’s Eagle Butte Mine. Consequently, Respondent was required to maintain berms of mid-axle height in accordance with the mandatory safety standard set forth in section 77.1605.

            Initially, I credit Inspector Hamilton’s un-rebutted testimony that the white drill operator (Alan Kline) told him that he had been dropped off at the drill location by another miner, who had driven his vehicle across the length of the 21 Bench. (Tr. 40; P. Ex. 3, p. 2). I recognize that Black Beauty, supra, 2012 WL 3255590, at *3, expressly rejects the notion that the operation of a single rubber-tired vehicle in a bench area makes it a roadway for purposes of section 77.1605(k). Similarly, the fact that the inspection vehicle nearly drove onto an unbermed section of the bench, is insufficient itself to establish the bench as a roadway. Respondent, however, concedes that other vehicles enter the active blasting area as an integral part of the drilling and blasting mining cycle, which occurs two to three times daily in the east pit where the 21 Bench is located. (See R. Br. at 16-17). Although some of these vehicles remain on site for the duration of the drilling and blasting process, the normal mining routine requires that rubber-tired vehicles travel along the bench in order to transport people and supplies to the drill. If the drill is in need of repair, mechanics and electricians must travel along the unbermed section of the bench to access the drill. (Tr. 65-66). If the drill needs fuel or needs to be cleaned, a vehicle carrying fuel or a pressure washer must travel through the same unbermed area. (Tr. 66-67, 75). Furthermore, I also credit Hamilton’s unrebutted testimony that Kline told him that the bench “was being used a shortcut still before it was all mined out so people didn’t have to drive all the way around the mine to reach this other side of the map.” (Tr. 80).

            I reject Respondent’s argument that because this was an active blasting area, which was isolated from other portions of the mine by large berms and signs warning, “DANGER, Hazardous Area, Authorized Personnel Only,”it was a working place and not a roadway. It was both. Active drilling and blasting operations occurred on the bench, which was also used as a roadway by the drilling and blasting crew, who would operate vehicles on the bench, including a de-watering truck, bulk truck, pickup truck, and Bobcat stemmer. Accordingly, Respondent had to comply with mandatory standards governing both working places and roadways. Moreover, Respondent cites no persuasive authority that because access to the 21 Bench was restricted to miners participating in, or overseeing, the drilling and blasting operations, it was exempt from the governing berm standard. More importantly, however, I find that the drilling and blasting crew, while performing their work, and those driving vehicles servicing them, are precisely the miners to be protected by application of the standard in the circumstances herein, an active drill bench on which vehicles commonly travel during the normal drilling and blasting routine.

            Finally, I note that after Inspector Hamilton issued the citation, it took only about fifteen minutes for the berm to be put in place on the 21 Bench. (Tr. 100). Therefore, no unreasonable burden was placed on Respondent to construct berms on its drill benches.

            Based on the foregoing, I find substantial evidence to establish that at the time of the citation, the 21 Bench was used in a manner consistent with the Commission’s long-standing definition of a bench as a roadway, as most recently clarified in Black Beauty. Therefore, Respondent’s failure to maintain berms along the 21 Bench violated 30 C.F.R. § 77.1605(k).

B.        The Secretary Established by a Preponderance of the Evidence that the Violation of Section 77.1605(k) Was Significant and Substantial

            The Mine Act defines a significant and substantial (S&S) violation as one “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other 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). To establish an S&S violation under National Gypsum, the Secretary must prove the four elements of the Mathies test: (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. See Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies criteria). An evaluation of the reasonable likelihood of injury is made assuming continued normal mining operations. U.S. Steel Mining Co. (U.S. Steel III), 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC 1573, 1574 (July 1984)).

            The third element of Mathies, which requires “a reasonable likelihood that the hazard contributed to will result in an injury,” is often the most difficult element for the Secretary to establish under the Mathies test. See U.S. Steel Mining Co. (U.S. Steel IV), 18 FMSHRC 862, 870 (June 1996) (Marks, Comm’r, concurring in result) (observing that during the 12-year period immediately following Mathies, over 93% of the Commission’s 47 decisions involving an S&S issue concerned the third element). In U.S. Steel IV, the Commission held that “the third element of the Mathies test does not require the Secretary to prove it was ‘more probable than not’ an injury would result.” 18 FMSHRC at 865 (citation omitted).

            At the same time, the Commission has long held that “[t]he fact that injury [or a condition likely to cause injury] has been avoided in the past or in connection with a particular violation may be ‘fortunate, but not determinative.’” U.S. Steel IV, 18 FMSHRC at 867 (quoting Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986)). See Elk Run Coal Co., 27 FMSHRC 899, 906-07 (Dec. 2005) (holding that absence of adverse roof conditions at time of or prior to violation does not preclude establishing S&S violation); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 (June 1996) (noting that absence of accidents involving violative equipment does not preclude S&S finding).

            The Commission recently reiterated these principles in Cumberland Coal Resources, LP, 2011 WL 5517385 (Oct. 5, 2011), and Musser Engineering, Inc., 32 FMSHRC 1257 (Oct. 2010). The Commission emphasized that the test under the third prong of Mathies is whether the hazard fostered by the violation is reasonably likely to cause injury, not whether the violation itself is reasonably likely to cause injury. Cumberland Coal Res., 2011 WL 5517385, at *5; Musser, 32 FMSHRC at 1280–81, citing Elk Run Coal and Blue Bayou Sand & Gravel, supra.

            Applying these S&S principles, I have found the underlying violation of a mandatory safety standard. I found above that the failure to erect berms along the length of the 21 Bench constituted a violation of section 77.1605(k), a mandatory safety standard under the Act. As to the second Mathies element, it is clear that the lack or berms contributed to a discrete safety hazard, i.e., a vehicle over-traveling the edge of the 21 Bench because of the absence of berms.

          With regard to the third Mathies element, I find a reasonable likelihood that the hazard contributed to by the violation will result in an injury. That is, the hazard contributed to by the violation, a vehicle over traveling the edge of the bench because of lack of berms - would be reasonably likely to cause injury. Black Beauty, supra, 2012 WL 3255590, at *9.

The Commission interprets mandatory safety standards to take into consideration ordinary human carelessness. Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). Consequently, the construction of mandatory safety standards, which involve miner behavior cannot ignore the vagaries of human conduct. See, e.g., Great Western Electric, 5 FMSHRC 840, 842 (May 1983); Lone Star Industries, Inc., 3 FMSHRC 2526, 2531 (November 1981). This analysis requires consideration of all relevant exposure and injury variables.

            Respondent argues that the testimony proffered on this issue was speculative, unsubstantiated, and post-hoc rationalization by the issuing inspector. (R. Br. at 22). While there is some evidence that the inspector may have issued the citation prematurely before gathering all the evidence, it is clear that the inspector’s initial determination is supported by the entirety of the record evidence. Although the bench was between 70 and 100 feet wide, I credit Hamilton’s testimony that only 40 feet of the bench, adjacent to the edge, was suitable for vehicular traffic. While the risk of injury from the unbermed drop-off hazard may have been significantly diminished if traffic had been contained to the side of the bench opposite the highwall, the close proximity in which the vehicles traveled to the edge of the unbermed drop-off of the bench greatly enhanced the necessity for berms, and the likelihood that in their absence a vehicle would overtravel the edge and fall sixty feet resulting in injury to its occupant. In addition, the width of the bench was always changing as a mechanized shovel removed material below, making it more likely that a vehicle operator would over travel the edge, not realizing that the edge had moved. (See Tr. 83, 216). Even skilled vehicle operators driving close to the edge may suffer a momentary lapse of attentiveness from fatigue or environmental distractions. Should such occur, there is a reasonable likelihood that a vehicle would over travel the unbermed edge and injury would result from a 60-foot drop to the pit below.

            The record also establishes that the visibility of drivers may be impaired by darkness and inclement weather, which further makes the hazard of over traveling the unbermed edge of the bench reasonably likely during continuous mining operations. The day shift began before sunrise, when vehicle operators were more likely to overlook the unbermed edge and over travel in dark or dim light. (Tr. 87-88). Crawford testified that miners in the drilling and blasting crew arrived on site at 5:15 a.m., and the mine periodically conducted drilling and blasting operations during the night shift when visibility was reduced. (Tr. 147-48). Similarly, windy conditions would kick up dust in the air, which obscures visibility, as does rain or snow. (Tr. 83-85, 217). Given the fact that miners worked shifts at the Eagle Butte Mine in which visibility was impaired by darkness and weather, the visual and tactile warning that the berms would provide was especially important in reducing the likelihood of driving over the edge.

            The record also establishes rough road conditions on the 21 Bench. The condition of the roadway on the bench was bumpy and irregular, making mechanical failure of a vehicle traveling on the bench more likely. (Tr. 53, 85-86; P. Ex. 5, R. Ex. 4-7). As noted, weather conditions at times made the road wet and muddy, resulting in slippery road conditions and wear and tear on vehicles. (Tr. 84-85, 217). In fact, Respondent’s own evidence in this case established that a dozer operator, familiar with the bench and properly trained against cell phone usage, became distracted while texting, and backed the dozer off the edge of an unbermed bench during an evening shift. (Tr. 344-45 and R. Ex. 18).

            In sum, based on the foregoing record evidence and the confluence of factors present, I find that the Secretary established that the hazard in question, a vehicle over traveling the edge of the elevated Bench 21 because of lack of berms - was reasonably likely to cause injury during continuous mining operations. Black Beauty, supra, 2012 WL 3255590, at *9; see also Arch of Wyoming, 32 FMSHRC at 577-78.

            With regard to the final Mathies element, I find that the Secretary established a reasonable likelihood that the injury in question would be of a reasonably serious nature. In this regard, if any of the vehicles that traveled on the Bench 21 were to go over the edge of the bench and fall 60 feet to the pit below, an injury could well be fatal and the operator would be fortunate to sustain only crushing type or permanently disabling injuries. (Tr. 94). Likely injuries would reasonably include blunt force and penetrating trauma of a serious or even fatal nature. Accordingly, I conclude that the fourth element of Mathies was satisfied and the violation was S&S.  

C.        Civil Penalty Assessment

            Section 110(i) of the Mine Act establishes six criteria to be considered in determining the appropriateness of a civil penalty. 30 U.S.C. § 820(i). The Eagle Butte is one of the largest coal mines in the United States and is owned and operated by Alpha Natural Resources and its subsidiary, Alpha Coal West. There is no factual dispute regarding Respondent’s ability to pay the proposed penalty or Respondent’s good-faith abatement of the citation shortly after the citation was issued. The parties stipulated to the fact that there have been no violations of the section 77.1605(k) standard in the two years prior to issuance of the instant citation on May 13, 2009. (Tr. 119-120; P. Ex. 1). The Respondent paid all 30 other section 104(a) violations during this time period. I have found that the gravity of the violation was S&S and the negligence was moderate. Accordingly, applying the section 110(i) criteria, I conclude that the Secretary's proposed penalty is appropriate and I assess a civil penalty of $1,203.00.

V. Partial Settlement

            Prior to the issuance of the citation discussed above, Hamilton cited Respondent for an alleged violation of 30 C.F.R. § 77.408. Citation No. 8463058 alleges that Respondent was moderately negligent in failing to maintain adequate shielding for welding operations in shop bay number seven. Hamilton further alleged that the hazard was reasonably likely to cause “flash burn and/or skin burn injuries” that would result in lost workdays or restricted duty for one miner.

            During the hearing, the parties read into the record a settlement agreement involving Citation No. 8463058. (Tr. 279-81). The parties proposed that the penalty be reduced from $807 to $181 and that the citation be modified to reduce the likelihood of injury or illness from “reasonably likely” to “unlikely,” and to delete the significant and substantial designation. I have considered the representations made at the hearing, and I conclude that the proffered settlement is appropriate under the penalty criteria discussed above and set forth in section 110(i) of the Act. Accordingly, I approve the settlement agreement.

VI. Order

            The 21 Bench at the Eagle Butte Mine is a roadway for the purpose of 30 C.F.R. § 77.1605(k). The Secretary has shown by a preponderance of the evidence that the Respondent’s failure to maintain berms along the 21 Bench violated 30 C.F.R. § 77.1605(k), that the violation was significant and substantial in nature, and that Respondent’s negligence was moderate, with one person affected. Having duly considered the six criteria set forth in Section 110(i) of the Act, I find that the Secretary’s proposed penalty of $1,203 for Citation No. 8463059 is appropriate.

            The parties’ Motion to Approve Settlement of Citation No. 8463058 is GRANTED. It is ORDERED that Respondent pay a total penalty of $1,384 within thirty days of this decision.

                                                                        /s/ Thomas P. McCarthy

                                                                        Thomas P. McCarthy

                                                                        Administrative Law Judge

Distribution:

Alicia A. W. Truman, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, Denver, CO 80202-5710

Page H. Jackson, Esq., and Karen L. Johnson, Esq., Jackson Kelly, PLLC, 1099 18^th Street, Suite 2150, Denver, Colorado 80202

/tjr