FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

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

June 4, 2013

DECISION

Appearances:

            For the Secretary: Douglas L. Sanders, Esq., Denver, CO

            For the Respondent: James F. Bowman, Midway, WV

Before: Judge Tureck

            This case is before me on two Petitions for Assessment of Civil Penalty filed by the Secretary of Labor (“Secretary”), acting through the Mine Safety and Health Administration (“MSHA”), against Justice Energy Company, Inc. (“Respondent”), pursuant to Sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§815 and 820 (“ Mine Act”). The first, filed on April 27, 2011, was docketed as WEVA 2011-220. It alleges a single violation of the Mine Act and assessed a penalty of $176. The second, filed on April 28, 2011, was docketed as WEVA 2011-629. It alleges eight violations of the Mine Act and assessed $10,659 in penalties. Respondent has accepted three of the citations in Docket No. WEVA 2011-629 and has agreed to pay the assessed penalties. Respondent contends that five of the remaining citations should be vacated, and the penalty be reduced due to a lower level of negligence in the remaining citation.

            A formal hearing was held in Beckley, West Virginia on October 23, 2012. At the hearing, Government Exhibits 1-13, and Respondent’s Exhibits 1-3, were admitted into evidence, and each party provided testamentary evidence. A list of stipulations was submitted as Joint Exhibit 1. Both parties then filed post-hearing briefs, the last of which was received on February 12, 2013.

Findings of Fact and Conclusions of Law

            Respondent operates the Red Fox surface coal mine (“the mine”) located in McDowell County, West Virginia. It is a mountaintop removal mine. TR1 109. The parties stipulated that Respondent is a large size mine operator under the Mine Act. JX 1. Respondent is a subsidiary of Mechel Bluestone. TR 207.

            Either very late on October 13, 2010 or just after midnight on October 14, 2010, MSHA inspector Joseph Jones was conducting an inspection of the mine. Jones had started at MSHA in 2008, and received his AR card in 2009. Prior to working at MSHA, he had worked in the mining industry, both underground and at surface mines, for 16 years. TR 21-23. At 12:25 a.m. on October 14, Jones issued two citations to Respondent, Nos. 8110204 and 8110205, concerning the same truck, a 773B Cat haul truck, which was owned and operated by an independent contractor, Appalachian Leasing. Appalachian Leasing also was cited for these violations. TR 57, 61. The truck was hauling refuse from a preparation plant to the dump at the mine. GX 5, 7; TR 25. Citation 8110204 listed nine separate defects regarding the haul truck which were alleged to have been in violation of 30 C.F.R. §77.404(a). That section of the regulations requires mobile equipment to be maintained in safe operating condition and to be removed from service immediately if in unsafe condition. He also issued Citation 8110205 regarding the haul truck for violating §77.1104, which states that “[c]ombustible materials, grease lubricants, paints, or flammable liquids shall not be allowed to accumulate where they can create a fire hazard.” For both of these violations the citations state that injury was reasonably likely and could reasonably be expected to be fatal; they resulted from high negligence; and were significant and substantial (“S&S”). Respondent was assessed a penalty of $3,996 for each of these violations. Respondent contests the determination of high negligence in Citation 8110204. For Citation 8110205, Respondent contests the occurrence of the violation and the finding of high negligence. Respondent also contends that the violation in Citation 8110205 is duplicative of Citation 8110204.

            The other citations still in contention were issued by MSHA Inspector Jeff Presley. Presley began working for MSHA in 2007, and received his AR card in 2008. Prior to working for MSHA, he had worked in the mining industry in underground mines since the early 1990's. TR 88-89. He testified that although he did not work in surface mines, all underground mines have surface areas and use large equipment aboveground, so he was familiar with what goes on at surface mines even prior to his MSHA training. Further, a large part of his MSHA training occurred in surface mines. TR 89-90.

            Presley conducted three inspections of the mine which resulted in the issuance of citations. On August 27, 2010, he issued Citation 8117589 for not using adequate dust control measures in violation of §77.1607(i). GX 9. Presley testified that he observed two very large rock trucks driving “head on” towards each other on the main haul road, and when the trucks approached each other “the cloud of dust just engulfed both of them.” TR 92. However, both trucks stopped without colliding. TR 92. Injury from this violation was found to be reasonably likely and could reasonably be expected to be lost workdays or restricted duty; negligence was low; two people would be affected; and the violation was S&S. Respondent was assessed a penalty of $176 for this violation. Respondent contests the occurrence of this violation.

            Presley also inspected the mine on October 12 and November 2, 2010. The citations issued on October 12^th have been resolved and are no longer at issue. He issued three citations on November 2^nd.. Citation 8069361 alleges a violation of §77.1605(l), which states that “[b]erms, bumper blocks, safety hooks, or similar means shall be provided to prevent overtravel and overturning at dumping locations.” The citation states that “[t]he berms at the dump site above the main haul road are not being maintained to mid axle of the equipment being used.” Presley testified that he was at the dump site and observed a rock haul truck backing up to the berm. He stated that the berm was well below mid-axle height. He estimated that the berm was only about 36 inches high whereas mid axle on the truck was about 68 or 72 inches. TR 102-03. He believed that the berm was not close to being high enough to prevent one of these huge haul trucks from backing over it and overturning. TR 106. The citation lists injury to be reasonably likely and could reasonably be expected to be lost workdays or restricted duty. Presley explained that the drop off at the dump site was not great and he “don’t believe the distance was great enough that the truck’s going to roll enough times or be such a severe accident that it would permanently disable or kill somebody.” TR 107. Further, he found Respondent’s negligence to be moderate and the violation to be S&S. A penalty of $362 was assessed for this violation. Respondent contests the occurrence of the violation.

            Citation 8069362 (GX 12) alleges a violation of §77.1608(a), which requires dumping locations and haulage roads to be kept “reasonably free of water, debris and spillage.” Presley observed a rock in the middle third of the main haul road (TR1 110-11) which he has described a being “1.5 times the size of a basketball” (id.), “beach ball size roughly. The size of a car tire” (TR111). He noted that the rest of the road was in good condition, and this was the only rock on it which could pose a hazard to the trucks. TR 112. Presley testified that the haul road where the rock was located was a “high traffic area.” TR 117. The huge haul trucks, other heavy mine equipment, small trucks and personal vehicles use it. TR 111, 116-17. He believes that a haul truck’s tire could hit the rock, causing the truck to overturn or the rock to be propelled and hit another vehicle. TR 116. The citation states that injury was reasonably likely and could reasonably be expected to be lost workdays or restricted duty. Negligence was alleged to be moderate, and the violation was S&S. A penalty of $362 was assessed for this violation. Respondent contests the occurrence of the violation.

            Citation 8069363 alleges a violation of §77.404(a). It states that Respondent’s fuel truck was not being maintained in safe operating condition, alleging five defects. GX 13. The citation states that injury was reasonably likely and could reasonably be expected to be lost workdays or restricted duty. Negligence was listed as high, and the violation was found to be S&S. A penalty of $1,203 was assessed for this violation. Respondent contests both the occurrence of the violation and the finding of high negligence.

Discussion

Citation 8110204

            Inspector Jones found that the 773B Caterpillar haul truck had the following safety defects:

1. The ball stud that connects the left steering jack to the bell crank has excessive slack.

            2. The left rear tires have 35 psi; they should have 85 psi.

            3. The keeper on the upper pen for the passenger side bed lift jack has a bolt missing and the pen is backing out.

            4. The door stop is broken and allows the door to open too far, exposing the driver to a fall hazard.

            5. No signal light or marker lights are working.

            6. The battery box is busted on the bottom and sagging from the weight of the batteries.

            7. Excessive oil leaks under the bed inside the frame and on the motor are contributing to accumulations of combustible materials.

            8. The emergency steering is not working.

            9. The access step on the passenger side of the machine is broken off.

            Respondent concedes that these conditions existed and were reasonably likely to cause injury. Resp’s Br. at 3. However, Respondent contends that it was not negligent. The truck was owned and operated by another company, Appalachian Leasing. It was Appalachian Leasing’s responsibility to conduct pre-shift inspections and make any necessary repairs. TR 59, 234. Gilbert Witt, the safety manager at the mine, testified that Respondent has a program that contract trucking companies must follow to be allowed to operate at the mine. TR 235; see RX 3. The contractors are required, inter alia, to provide all inspection and repair documentation each month for trucks to be used at the mine. TR 236; RX 3. When the proper documentation is provided, a truck is given a sticker which permits it to operate at the mine for the next month. Respondent also conducts spot checks of contractors’ trucks. TR 237. Further, the Cat truck at issue was used primarily at Black Bear Processing Plant, which was not owned by Bluestone Mechel. TR 233-34. The truck came to the Red Fox mine only to haul refuse to the dump. TR 25, 233. Witt testified that the truck was at the processing plant 80% of the time, and spent the remaining 20% hauling the plant’s refuse to the Red Fox mine’s dump. TR 233.

            Nevertheless, the Secretary contends that Respondent was highly negligent in permitting this truck to operate at the mine. Jones contends that Respondent should have known the truck was in violation of the safety standards. TR 70. He notes that he never wrote so many violations on a single truck. TR 40. Further, he stated that one of the truck’s left rear tires was visibly low, and signal lights and marker lights were not working. TR 26-28. Since the inspection was being conducted around midnight, that lights on the truck were not working should have been noticeable to Respondent. In addition, the missing step on the passenger side of the truck and the low tire pressure may have been visible, even at night, depending on the lighting at the mine. But most of the truck’s defects were not visible without examining the truck

            A citation regarding the truck’s condition alleging high negligence was also issued to Appalachian Leasing. TR 59-60. It is hard to see how, based on the facts in this case, that Respondent’s negligence could equal that of the company which owned and operated the truck and was directly responsible for examining and maintaining it. Accordingly, although I otherwise uphold the citation, I find Respondent’s negligence to have been moderate, not high. Finally, considering all of the factors set out in §110(i) of the Mine Act, I find that a penalty of $2500 is appropriate.

Citation 8110205

            Respondent contends that the Secretary failed to prove a violation of §77.1104. The citation states that “combustible materials, coal dust mixed with motor oil and hydraulic oil, have been allowed to accumulate where they could create a fire hazard.” RX 7. Respondent argues that the materials which may have accumulated on the motor of the Cat haul truck did not create a fire hazard. Jones testified that what most concerned him was the accumulation of oil on both sides of the engine. TR 44-46. He also found that hydraulic oil had leaked down the frame of the truck. If the oil on the engine caught fire, the leaked hydraulic oil could cause the fire to spread throughout the truck. TR 45. But Jones testified that he does not know the ignition point of the accumulated oils, nor does he know the surface temperature of the sides of the engine. TR 72-73. He also did not know how much coal dust had accumulated on the engine (TR 71), nor did the Secretary present any evidence of the ignition point of coal dust. Apparently, the Secretary wants me to accept as a matter of faith the totally illogical contention that a truck’s engine oil will catch fire at the temperature at which a truck’s engine operates.

            Under these conditions, there is no basis to find that the accumulations of oil and coal dust on the sides of the engine were combustible at the temperatures at which the truck operated. Therefore, there is no evidence that they created a fire hazard. Further, Respondent presented uncontradicted evidence that the ignition points of the oils which allegedly accumulated on the engine were substantially higher than the temperature of the outside of the engine. See TR 238-44; RX 1.

            Therefore, Citation 8110205 is vacated. Since I am vacating this citation for the reasons stated above, I will not address Respondent’s other contentions regarding this citation.

Citation 8117589

            Section 77.1607(i) states that “[d]ust control measures shall be taken where dust significantly reduces visibility of equipment operators.” Respondent alleges that it took adequate dust control measures in that the four and a half miles of haul roads are watered continuously on each shift by a full-time employee whose sole job it is to operate the water truck. TR 212-14. Presley did not dispute this; in fact, he agrees that Respondent “kept pretty good water on the roads most of the time.” TR 99. This explains why he found only low negligence. Id. But Presley stated that the section of the haul road where he observed the two trucks raising a cloud of dust was a particularly dry section of the road because it was near an intersection and was heavily traveled, and it needed additional watering. TR 95-97.

            Although Respondent disagrees with Presley’s description of the incident, Presley was the only eyewitness to it to testify at the hearing, and I credit his observation that the road was extremely dusty where the two trucks were approaching each other. Presley testified that he was sitting about 100 to 150 feet from the haul road and slightly above it when he saw the two haul trucks approaching each other head on from opposite directions. When they got close to each other, all he could see from his vantage point was the rear foot or two of each truck. TR 91-92. However, Presley’s testimony that the trucks were approaching each other “head on” is not convincing. Doubtless, this conclusion was influenced by his belief that the haul road “wasn’t a whole lot wider than two rock trucks passing”, and each rock truck was 24 feet wide. TR 94. Although he did not measure the width of the haul road, he estimated that when two rock trucks were passing each other, there was only five feet of space between them. Id. But subsequently, he testified that the road was about 75 feet wide (TR 158); and Gilbert Witt, who as Mechel Bluestone’s safety director should know, testified that the haul road at the point it was being observed by Presley was 100 feet wide (TR 211), which is greater than the width of four rock trucks. There would have been no reason for the trucks to approach each other head on when the road was that wide. Moreover, Presley testified that he could clearly see the trucks’ drivers in their cabs until their vehicles almost reached each other (TR 94), meaning that each driver would have been able to see the other truck while the trucks were approaching each other. So unless one or both of the drivers were asleep or suddenly incapacitated, it is hard to believe the trucks would have been approaching each other head on. Further, Presley testified that the dust cloud around the trucks dissipated in a few seconds. TR 156.

            Accordingly, I find that Respondent’s negligence was low, as the Secretary alleged, and injury due to the violation was unlikely.

            The only remaining issue regarding this citation is whether the violation was significant and substantial (“S&S”). 30 U.S.C. § 814(d)(1) provides: 

If, upon any inspection of a coal or other mine, an authorized representative of the Secretary finds that there has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created by such violation do not cause imminent danger, such violation is of a nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard, and if he finds such violation to be caused by an unwarrantable failure of such operator to comply with such mandatory health or safety standards, he shall include such finding in any citation given to the operator under this [Act].

The Commission and several courts of appeals have agreed that four conditions must be met to find that a violation is “significant and substantial”:

[T]he 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. Secretary of Labor v. Mathies Coal Co., 6 FMSHRC 1, 3-4 (1984); see also, Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir.1988); Consolidation Coal Co. v. Federal Mine Safety and Health Review Comm'n, 824 F.2d 1071, 1075 (D.C.Cir.1987).

Since I have found that an injury was unlikely to result from the violation, I conclude that the violation was not S&S.

                        Finally, I find that a penalty of $100 is appropriate for this violation.

Citation 8069361

                                    Section 77.2(d) defines “berm” as “a pile or mound of material capable of restraining a vehicle.” Presley testified that the berm at Respondent’s dump site was only about 36 inches high, too low to restrain the huge rock trucks which used it. TR 102-03. He added that “a [CAT] 793 rock truck wouldn’t even feel it. He’d back plumb through it.” TR 106. Although Presley did not measure the height of the berm, he testified that he knows from experience how high 36 inches is in relation to his body. TR 104. Regardless, he stated that in order to be effective, the berm would have to reach at least mid-axle height, which on a CAT 793 rock truck would be about 68 to 72 inches high (TR 102; see GX 11, at 2), and the berm at the dump site “was significantly inadequate. It was pretty obvious.” TR 104. Because he believed the violation was obvious, he found Respondent’s negligence to be moderate. TR 108-09. He also found that injury to the driver could reasonably be expected to be lost workdays or restricted duty rather than anything more severe because the dump site was not significantly elevated and if a truck went over the edge he did not believe “the truck’s going to roll enough times or be such a severe accident that it would permanent disable or kill somebody.” TR 107.

                                    Respondent’s defense to this citation consists of two prongs. First, Respondent contends that Presley’s testimony on this issue is inconsistent; but to the extent that he was inconsistent the inconsistencies relate to irrelevant facts. Respondent has not even argued that the berm at the dump site was higher than 36 inches. Second, Respondent contends that the operator of the bulldozer which was working at the dump site would spot the rock trucks to assure they did not drive through the berm. But the standard does not allow for spotting as a means of preventing vehicles from overtraveling and overturning at dump sites; the standard requires a physical barrier or restraint.

                                    Therefore, I conclude that Respondent violated §77.1605(l). Moreover, Respondent has not challenged the inspector’s determinations that an injury was reasonably likely and would cause lost workdays or restricted duty; that Respondent was moderately negligent; and that the violation was S&S; and I concur with all these determinations. Finally, the Secretary assessed a penalty of $362 for this violation, which I find appropriate.

Citation 8069362

                                    This citation is based on the presence of a single large rock in the road. GX 12; TR 112. The Secretary contends that “in allowing the rock to sit in the middle of the active, main haul road, Respondent violated the cited standard.” Sec’y’s Br. at 25. But the standard only requires that haulage roads be kept “reasonably free” of debris and spillage. Both Presley and Witt testified that rocks on the haul roads are a common occurrence at surface mines. TR 111-12, 224. Rocks often fall off haul trucks. TR 118, 222-24. Moreover, the haul roads are made of rock, as are the berms and embankments. TR 117. Accordingly, it would not be unreasonable for a large rock to be in the road, and the mere presence of one in the road would not necessarily equate with a violation of a standard requiring roads to be kept “reasonably free” of debris. Presley did not see how the rock came to be in the road or how long it had been there, but assumed it fell off a rock truck. TR 119-21. Consistent with Presley’s surmise, Witt testified that the rock had fallen off a truck as the truck was turning. TR 220. He added that the driver reported that the rock had fallen onto the road, and a rubber-tired dozer was on the way to remove it when the citation was issued. TR 220-21. Although Presley disputes that anyone reported the rock in the road over the CB radio (TR 180), he admits the violation was abated by a rubber-tired dozer moving the rock. TR 182.

                                    Based on this evidence, I conclude that no violation of §77.1608(a) occurred. By requiring that the roads be kept “reasonably free” of debris, the standard accepts that perfection would be unreasonable to expect under the circumstances. The presence of a single large rock on a surface mine haul road which was removed promptly after it was discovered to be there is consistent with the road being kept “reasonably free” of debris. It should be stressed that Respondent did not receive a citation for a violation of §77.1607(aa), which requires that “trucks shall be trimmed properly when they have been loaded higher than the confines of their cargo space.” Citation 8069362 should not be permitted to serve as a backhanded means to establish a violation of that standard because a large rock was found in the roadway. In any event, no evidence was presented that the rock in question fell from an improperly loaded truck. TR 119-20. Accordingly, how the rock came to be in the roadway is not relevant. What is relevant is that other than the single large rock at issue, Presley conceded that the haul road was in good condition (TR 112); and the rock was removed from the roadway as soon as practicable.

                                    Therefore, Citation 8069362 is vacated.

Citation 8069363

                                    The Secretary alleges that Respondent’s fuel truck was not being maintained in safe condition, in violation of 77.404(a), and it was required by that standard to have been removed from service immediately, because:

The drive shaft for the fueling pump is bent and vibrating against the frame of the battery box[;] the straps holding both fuel tanks are loose[;] the hinges for the hood are loose and hood [sic] is broken to the point it is very hard to open[;] the switch for the air on the drivers [sic] seat does not work[;] and there is 1/4" of slack in the steering jack on the off side of the machine.

Apparently, none of these alleged defects specifically violate any safety standards. Rather, the Secretary is relying on Presley’s opinion that these factors affected the safe operation of the fuel truck to prove his case.

                                    Presley admitted that the driver’s seat can be adjusted manually, and there is no requirement that trucks have an air-adjustable seat (TR 194). This is not a safety issue.

                                    In regard to the hood of the fuel truck, Presley’s safety concern was that it could bounce or break loose. TR 125. But both Presley and Witt testified, as was alleged in the citation, that the hood was very heavy and hard to open. TR 126, 229, 232. Presley failed to explain why a truck’s hood which was very heavy and often required two me to open it would suddenly open by itself and possibly fall off the truck. The evidence fails to prove that the fuel truck was not maintained in safe operating condition because the hood was hard to open.

                                    Next, Presley admitted that he received no training from MSHA or mining equipment manufacturers regarding the wear on steering jacks (TR 138-40). Further, Presley did not measure the slack in the steering jack. He determined that the steering jack had one-quarter inch of slack just by looking at it. (TR 128). Presley’s testimony that without measuring, “you can determine a quarter inch. Anybody, you know, can determine a quarter inch” (TR 129), is ludicrous. Accordingly, I reject Presley’s opinion regarding this contention. It is unprofessional and lacking in credibility.

                                    In regard to the straps holding the fuel tanks, there was relatively little testimony. The tanks sit on a bracing or shelf. TR 193, 227. Presley testified that he could see the straps were loose and he could move them with his hands. TR 123-25. He inferred that this condition could cause the fuel tanks to fall off the truck. Witt testified that only one of the two fuel tanks was operational; the other was sealed shut because it had a hole in it. TR 227. The only function the sealed fuel tank served was as a step for the driver to get in the cab. Nevertheless, Witt did not dispute that the straps around both fuel tanks were loose or that the fuel tanks could break off. TR 227-28. A fuel tank falling off a moving truck, whether the tank is full or empty, presents an obvious hazard to other vehicles and pedestrians, and possibly to the fuel truck itself.

                                    Finally, the Secretary contends that the drive shaft to the fueling pump was bent and was hitting the frame of the battery box. The Secretary argues that this creates a safety hazard because the metal-on-metal contact could cause a spark which could ignite the fuel or fumes given off by the battery. TR 123-24. The Secretary also argues that the contact could cause the battery box to become loose, causing the battery to fall off the truck. TR 124. Witt testified that the drive shaft had only a gradual bend (TR 226), in contrast to Presley’s testimony that there was an obvious bend in the in the drive shaft. TR 123. Witt also testified that the drive shaft was in a metal enclosure, and Presley agreed that it would have to be guarded. TR 188, 226. When Presley was asked “[s]o if the drive shaft’s guarded, then how is it rubbing against the battery box?”, his answer was equivocal. TR 188. I find that the Secretary has failed to prove that the drive shift presented a safety hazard.

                                    The only alleged safety problem regarding the fuel truck which the Secretary has proven was the loose straps on the fuel tanks. Nevertheless, since Witt testified that the fuel tanks could fall off, this single deficiency is sufficient to prove that the fuel truck was not being maintained in a safe operating condition, a violation of §77.404(a). But the Secretary has not proven that it is reasonably likely a fuel tank would fall off the truck. The fuel tanks sit on a platform or shelf, and obviously are connected to the truck itself in order for the fuel to reach the engine. It would appear that the role of the straps is to keep the tanks from moving around on the shelves or platforms. Although loose, the straps were still intact, and there is no evidence that they were failing to hold the tanks in place or that the tanks were in imminent danger of falling off. Therefore, I find that injury from this violation was unlikely. Since injury was unlikely, the violation cannot be S&S. Finally, since the straps were visibly loose, I find that negligence was moderate.

                                    The Secretary assessed a penalty of $1,203 for the alleged violation in this citation. However, only one of the five alleged deficiencies regarding the fuel truck was proven; negligence has been reduced from high to moderate; injury has been found to be unlikely; and the violation is not S&S. Under these conditions, I find that a penalty of $100 is reasonable.

                                    In sum, penalties totaling $3,800 are assessed for the violations which have been proven or were unopposed.

ORDER

                                    It is ORDERED that:

                                    Citation 8103635 is unchanged, with an assessed penalty of $540.

                                    Citation 8103636 is unchanged, with an assessed penalty of $100.

                                    Citation 8103637 is unchanged, with an assessed penalty of $100.

                                    Citation 8110204 is modified to reduce negligence from “high” to “moderate”, and the assessed penalty is reduced to $2,500.

                                    Citation 8110205 is vacated.

                                    Citation 8117589 is modified from injury being “reasonably likely” to “unlikely”, and the violation is changed from S&S to non-S&S. The assessed penalty is reduced from $176 to $100.

                                    Citation 8069361 is unchanged, with an assessed penalty of $362.

                                    Citation 8069362 is vacated.

                                    Citation 8069363 is modified from injury being “reasonably likely” to “unlikely”, negligence reduced from “high” to “moderate”, and the violation from S&S to non-S&S. The assessed penalty is reduced from $1,203 to $100.

                                    It is further Ordered that Respondent pay a penalty of $3,802 within 30 days of the date of this order.

                                                                                                            /s/ Jeffrey Tureck

                                                                                                            Jeffrey Tureck

                                                                                                            Administrative Law Judge

Distribution:

Douglas L. Sanders, Esq., U.S. Department of Labor, Office of the Solicitor, 1999 Broadway, Suite 800, Denver, CO 80202

James F. Bowman, P.O. Box 99, Midway, WV 25878