FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

721 19^th STREET, SUITE 443

DENVER, CO 80202-2536

303-844-5267/FAX 303-844-5268

 

June 13, 2013

 

DECISION

 

Appearances:               Jeffrey M. Leake, Esq., Office of the Solicitor, U.S. Department of Labor, Denver, Colorado, for Petitioner;

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

 

Before:                        Judge Manning

These cases are before me upon petitions for assessment of civil penalty filed by the Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), against Bowie Resources, LLC (“Respondent” or “Bowie”) pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act” or “Mine Act”).  The parties introduced testimony and documentary evidence at a hearing held in Glenwood Springs, Colorado, and filed post-hearing briefs.

            Bowie operates the Bowie No. 2 Mine in Delta County, Colorado.  Two section 104(a) citations were adjudicated at the hearing and four citations were settled at the hearing.  The Secretary proposed a total penalty of $23,500.00 for the two citations that were adjudicated.

I.  BASIC LEGAL PRINCIPLES

            A.        Significant and Substantial

 

            It is the third element of the S&S criteria that is most difficult to apply. The element is established only if the Secretary proves “a reasonable likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based upon the particular facts surrounding the violation and must be made in the context of continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984)). “The Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc. 32 FMSHRC 1257, 1281 (Oct. 2010)). 

 

            The S&S nature of a violation and the gravity of a violation are not synonymous. The Commission has pointed out that the “focus of the seriousness of the violation is not necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996).  The Commission has emphasized that, in accordance with the language of section 104(d)(1), 30 U.S.C. § 814(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be S&S. U.S. Steel Mining Co., 6 FMSHRC at 1575. With respect to citations or orders alleging an accumulation of combustible materials, the question is whether there was a confluence of factors that made an injury-producing fire and/or explosion reasonably likely. UP&L, 12 FMSHRC 965, 970-71 (May 1990). Factors that have been considered include the extent of the accumulation, possible ignition sources, the presence of methane, and the type of equipment in the area. UP&L, 12 FMSHRC at 970-71; Texasgulf, 10 FMSHRC at 500-03.  

 

            B.        Negligence

 

            The Secretary defines conduct that constitutes negligence under the Mine Act as follows:

 

Negligence is conduct, either by commission or omission, which falls below a standard of care established under the Mine Act to protect miners against the risks of harm. Under the Mine Act, an operator is held to a high standard of care. A mine operator is required to be on the alert for conditions and practices in the mine that affect the safety or health of miners and to take steps necessary to correct or prevent hazardous conditions or practices. The failure to exercise a high standard of care constitutes negligence.

 

30 C.F.R. § 100.3(d). 

 

 

II.  DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW

A.     Citation No. 8470097; WEST 2010-1727

On May 26, 2010, MSHA Inspector Brad Allen issued Citation No. 8470097 under section 104(a) of the Mine Act, alleging a violation of section 75.1725(c) of the Secretary’s safety standards.  The citation states, in part:

The mine operator failed to ensure that repairs or maintenance shall not be performed on machinery until the power is off and the machinery is blocked against motion. . . . [T]his inspector observed a miner standing in the conveyor  of the [Stamler feeder breaker] removing wire from the pick breaker while the power was energized (as evidenced by discussion with the miner who stated the machine was not locked out, but the breaker on the machine was kicked and the switch (conveyor) was turned off).  Neither of these switches were visible from the miner’s position at the pick breaker and neither provided means to prevent turning the switches on. . . .

 (Ex. G-21).  Inspector Allen determined that an injury was reasonably likely to occur and that such an injury could reasonably be expected to be fatal.  Further, he determined that the violation was S&S, the operator’s negligence was moderate, and that one person would be affected.  Section 75.1725(c) of the Secretary’s safety standards provides that “[r]epairs or maintenance shall not be performed on machinery until the power is off and the machinery is blocked against motion . . . .”  30 C.F.R. § 75.1724(c).  The Secretary proposed a penalty of $7,100.00 for this citation under his special assessment regulation.  30 C.F.R. § 100.5. 

1.        Summary of Evidence

At the time of the inspection, Inspector Allen observed a miner performing maintenance inside of a Stamler feeder breaker.  (Tr. 128).  The miner was in a bent-over position cutting wire off the pick breaker.  Id.  Inspector Allen testified that a feeder breaker is a large machine that feeds coal into a pick breaker which crushes the coal.  Id.  After talking with the miner, the inspector learned that the power at the circuit breaker was off and the conveyor switch was neutral, but the pick breaker on the feeder breaker was not locked and tagged out.  (Tr. 134).

The inspector testified that the citation was S&S because there was a reasonable likelihood of significant injury.  (Tr. 145, Ex. G-22).  The inspector believed that it would be easy for a miner to start a feeder breaker not blocked against motion while another miner was performing maintenance on the machine.  (Tr. 138).  Once the feeder breaker is energized and a miner is working inside the machine there is reasonable likelihood that the miner will be fatally entangled.  (Tr. 136).  Inspector Allen indicated that locking out and tagging out the feeder breaker would remove the possibility that anyone else could start the machine and it would block it against motion.  Id.  

The inspector testified that the efforts of the miner to prevent the pick breaker from being turned on were a mitigating factor and the mine operator’s negligence was moderate.  (Tr. 146; Ex. G-22). 

Christopher Solaas was the miner performing maintenance on the pick breaker when the citation was issued.  (Tr. 167).  Mr. Solaas testified that he did not lock out and tag out the pick breaker because he was not doing electrical work.  (Tr. 170).  Mr. Solaas believed that he effectively blocked the equipment against motion due to the precautionary measures he took and the photo eyes mounted on the feeder breaker that prevented the pick breaker from running continuously.  (Tr. 173-174).  Mr. Solaas asserted that locking out and tagging out a piece of equipment simply prevents miners from using that equipment.  (Tr. 182). 

2.        Summary of the Parties’ Arguments

The Secretary argues that Respondent violated section 75.1725(c) because a miner performed maintenance on a pick breaker when the feeder breaker was not blocked against motion.  The Secretary cites the standard which requires that repairs or maintenance shall not be performed on machinery until the power is off and the machinery is blocked against motion.  (Sec’y Br. 14).  Inspector Allen issued a citation when he observed a miner performing maintenance on a pick breaker that was not blocked against motion.  Id. 

 

            The Secretary further asserts that the violation was S&S because it met the four elements of the Mathies standard.  There was a violation of section 75.1725(c), the violation exposed the miner to a discrete safety hazard of fatal entanglement, and there was a reasonable likelihood of injury because it would be relatively easy for another miner to inadvertently start the feeder breaker while the miner in question was performing maintenance inside the pick breaker.  (Sec’y Br. 18).  Inspector Allen testified that there were a number of different ways that the feeder breaker could be turned on and fatally entangle a miner performing maintenance on the pick breaker.  Id.      

 

            The Secretary maintains that the violation was the result of Respondent’s moderate degree of negligence.  (Sec’y Br. 20-21).  The Secretary believes that the miner took remedial measures to ensure that the feeder breaker could not be turned on, but the mine operator had notice of MSHA’s stringent protocols in regard to blocking the machine against motion.  Id. 

 

            Respondent argues that no violation of section 75.1725(c) occurred because the cited standard does not require power to be locked and tagged out.  (Bowie Br. 6).  Respondent believes that the cited standard only requires that the power be off.  Id.  If the standard required lock out/tag out procedures, it would have used those terms.  Id.  Mr. Solaas indicated that the feeder breaker was deenergized because the circuit breaker was pulled and the selector switch was in an off position.  (Bowie Br. 7-8).  

 

            Respondent also maintains that lock out/tag out procedures can be required for electrical work, but such procedures have no application to blocking machinery against motion.  (Bowie Br. 7).  Certain MSHA regulations specifically require lock out/tag out for electrical work.  Id.  Respondent states that it is undisputed that the miner was not performing electrical work on the feeder.  Id. 

            Respondent contends that the court should reject the Secretary’s argument that turning off the power was insufficient to block against motion.  (Bowie Br. 9).  Respondent contends that such interpretation is contrary to the language of the Secretary’s Program Policy Letter (“PPL”).  Id.  Respondent relies upon numbered paragraph one in the PPL, which suggests different ways to block the motion of machinery.   (Ex. G-24 at 2).  Respondent maintains that because the miner undertook protective measures to block the motion of the machine as described in the PPL, the citation should be vacated.

 

3.  Discussion and Analysis

            I find that Citation No. 8470097 was a violation of section 75.1725(c) because a miner performed maintenance on a pick breaker when the feeder breaker was not blocked against motion.  The inspector observed a miner in a bent-over position, who was not visible from any direction except from the hopper end, cutting wire off the pick breaker.  The miner was performing maintenance when cutting and removing wire from the pick breaker.

Although the miner turned off the circuit breaker and the conveyor switch on the machine was in neutral, the feeder breaker was not blocked against motion.  I credit the inspector’s testimony that Bowie violated the safety standard because the only way to block the feeder breaker against motion was to lock out the machine.  (Tr. 136).  The machine was not blocked against motion because the miner only opened the circuit breaker and put the conveyor switch in neutral.  Such actions did not “block” the machine from motion.  Id.  Some machinery that is locked out could still injure a miner based upon the forces of gravity or stored mechanical energy, but in this case locking out the feeder breaker would effectively block all motion.[1]    

            Respondent argued that section 75.1725(c) only requires machinery to be deenergized and blocked against motion, but not locked out and tagged out.  Respondent relied upon Island Creek Coal Co., where the Commission, in a split decision, let the judge’s dismissal of a citation stand and held that the standard requires that machinery be blocked against motion, but not locked out and tagged out, which is covered by an electrical standard.  22 FMSHRC 823,825 (July 2000).  The Island Creek decision is distinguishable from this case because the Secretary is not arguing that the safety standard requires that machinery be locked out, but argues that under the facts presented here locking out the feeder breaker was the only option available to prevent the movement of the pick breaker in the feeder.  In Island Creek Coal Co., the Secretary argued that locking and tagging out a machine was an integral requirement of 75.1725(c).  In this case, however, the Secretary argued that by failing to lock out and tag out the feeder, Respondent had not blocked the machine against motion.  Indeed, former Commissioner Verheggen stated in Island Creek that the Secretary “could simply have argued before the judge that the operator violated section 75.1725(c) because it failed to block the belts against motion, [but he] chose instead to erroneously argue that the ‘blocked against motion’ requirement was equivalent to a ‘lock and tag out’ requirement developed for electrical work.”  22 FMSHRC at 833.   Thus, because another miner could have closed the circuit breaker and activated other switches to start the machine in this case, Respondent had not blocked the feeder breaker against motion.[2]  The standard requires that the operator do more than simply stop, shut down, or deenergize machinery before maintenance is performed; it requires the operator to affirmatively block the machinery against motion.  The Secretary’s PPL does not change that requirement.

             I find that the Secretary did not establish that the violation was S&S.  Although the Secretary established the first two elements of the Mathies test, evidence presented by Bowie shows that an injury was unlikely.  In order for the feeder breaker to start moving, several steps would have been necessary.  A miner would have needed to activate several different switches.  In most instances, the belt would have to be started at the same time unless the feeder was operated in manual mode.  (Tr. 183, 191-92).  It was highly unlikely that anyone would take such actions and it is also unlikely that if someone did try to start the feeder that Mr. Solaas would not have noticed.  One of the switches that required activation was on the feeder near Solaas.  While it was possible that all these steps could be completed while Solaas was in the feeder, it was highly unlikely. 

            I find that the gravity was serious because, if the feeder were activated, Solaas would have received very serious injuries and such injuries could have been fatal.  I find that the violation was a result of Respondent’s moderate negligence.  The cited violation posed a dangerous hazard to the miner performing maintenance on the pick breaker and the operator should have known that more was required to block the motion of this machine.

            The citation is hereby MODIFIED to a non-S&S violation of section 75.1725(c).  A penalty of $2,000.00 is appropriate for this violation.

B.     Citation No. 8470076; WEST 2011-278

On May 3, 2010, Inspector Allen issued Citation No. 8470076 under section 104(a) of the Mine Act, alleging a violation of section 75.220(a)(1) of the Secretary’s safety standards.  The citation states, in part:

The mine operator failed to follow page 20 of the roof control plan, approved by the District Manager.  The Continuous Mining Machine operator in the 1^st West active mining section . . . cutting coal in the #3 face inby crosscut 17 did not observe the “Red Zone” safety precautions.  This Inspector observed the continuous Mining Machine Helper approach the remote controlled Joy Continuous Mining Machine . . . while backing away from the face and the operator failed to stop the machine.  A brief period after, the Continuous Mining Machine Operator and helper as well as the safety person were standing near the bumper, inby the tail of the machine and the operator started the continuous mining machine pump motor and was preparing to tram inby, endangering himself and two other miners.  This creates a crushing hazard to miners. 

(Ex. G-2).  Inspector Allen determined that an injury was highly likely to occur and that such an injury could reasonably be expected to be fatal.  Further, he determined that the violation was S&S, the operator’s negligence was moderate, and that three persons would be affected.  Section 75.220(a)(1) of the Secretary’s regulations requires operators to “develop and follow a roof control plan, approved by the District Manager, that is suitable to the prevailing geological conditions and the mining system to be used at the mine.”  30 C.F.R. § 75.220(a)(1).  The Secretary proposed a penalty of $16,400.00 for this citation under her special assessment regulation.  30 C.F.R. § 100.5. 

1.        Summary of Evidence

On May 3, 2010, Inspector Brad Allen issued Citation No. 8470076 as a violation of section 75.220(a)(1) because several miners entered the “red zone” while the continuous mining machine “CMM” was in operation, which the Secretary contends violates the mine’s roof control plan.  (Tr. 19, Ex. G-2).  The red zone is often called the “danger area” or “danger zone.”

            Inspector Allen walked into the No. 3 face and, from 100 feet away, observed the CMM operator backing the machine away from the face.  (Tr. 21).  Inspector Allen testified that he observed the continuous mine helper “CMH” approach the CMM to retrieve the miner cable as the CMM backed out of the face.  Id.  By approaching the CMM, as it was in operation, the CMH had entered the red zone.  Id.  Inspector Allen continued walking toward the CMM, where he observed the CMM operator stopping the machine.  (Tr. 26).  He then observed the CMM operator, the CMH, and a Bowie safety manager standing near the bumper of the machine. Id.  The Inspector testified that the three miners were positioned in a small space, approximately 4 to 5 feet wide, between the CMM and the rib wall.  (Tr. 28).  Inspector Allen was standing 20 feet from the CMM when the CMM operator began tramming, or actually moving the CMM, while all three miners were positioned in that same area.  (Tr. 30).  

            The inspector testified that the citation was S&S because the cited violation was reasonably likely to cause a serious injury.  (Tr. 63).  He marked the location of the CMM operator, the CMH, and the Bowie safety manager in relation to the CMM in Government Exhibit 6, which shows the miners in an area that he designated as a red zone.  (Tr. 24-26, Ex. G-6).  He testified that the red zone is a dangerous area whenever the CMM is in operation.  (Tr. 67).  The inspector issued the citation because any miner that is in a red zone while the CMM is in operation violates the roof control plan.  Id.  Inspector Allen indicated that the roof control plan required that “during mining and place changing cycles” all employees must be under permanent roof support and not exposed to sudden movement of the mining equipment or other pinch points.  (Tr. 33, Ex. G-3). 

The inspector designated this citation as fatal because the violation of the roof control plan exposed the miners to pinch points around the CMM.  (Tr. 67, Ex. G-2).  He believed that the position of the miners while the CMM was in operation would expose them to sudden movement and that they could be crushed between the CMM and the rib.  (Tr. 34).  Inspector Allen determined that the violation resulted from the mine operator’s moderate negligence.  (Ex G-2).  He believed that the way the CMM operator was running the machine near the two other miners and himself was careless, reckless, and dangerous.  (Tr. 88).  

During cross-examination, Inspector Allen testified that, at the time he observed the alleged violation of the roof control plan, the CMM was mining in the straight, not turning a crosscut.  (Tr. 69-70).  The citation specifically alleges that Bowie failed to follow page 20 of the roof control plan.  (Ex. G-3).  That provision of the plan depicts a CMM turning a crosscut to the left and one to the right, but does not depict a CMM mining straight ahead.  (Tr. 70-72).  Inspector Allen testified that the section of Government Exhibit 6 that he marked to show the position of the miners was not included in the roof control plan at the time he issued the citation.  (Tr. 71).

The Inspector testified that in the body of the citation, he described the CMM as preparing to tram when he observed the three miners standing near the bumper of the machine.  (Tr. 80, Ex. G-2).  In Inspector Allen’s field notes, he describes the CMM as beginning to tram (Tr. 81, Ex. G-20).  Inspector Allen also testified that he did not describe in his field notes which side the helper was on, what he was doing, or how far away he was from the CMM when the machine was in operation.  Id.

Inspector Allen testified that the roof control plan is somewhat vague as to the exact areas where the red safety zones exist around a CMM.  (Tr. 83, Ex. G-19).  The day after this inspection, Inspector Allen recommended that the roof control plan be modified to include all red zone diagrams as well as the itemized list of safety precautions to follow while miners are working around CMMs at the mine.  Id.  The inspector testified that he made these recommendations on a Plan Review form dated May 4, 2010, and agreed that the roof control plan was vague concerning this issue.  Id.

Kyle Ledger was the CMM operator at the mine in the No. 3 entry when the citation was issued.  (Tr. 98).  Mr. Ledger testified that the mining cable came out of the right side of the CMM, but crossed over to the left side of the machine.  (Tr. 94).  At that time, he was standing on the left side of the CMM.  Ledger testified that at the time the inspector arrived he was in the process of taking cut No. 2 from the left side of the entry.  Id.  He then finished that cut and backed the CMM up and positioned it on the right side to take cut No. 3.  (Tr. 95).  As he backed up the CMM, he testified that he stayed behind the tail of the CMM.  Id.  Once the CMM was repositioned, he shut the machine off and helped move the cable out of the way against the left rib.  (Tr. 95-97).  He then began to move the CMM toward the face on the right side of the entry when the Inspector flagged him to stop.  Id.  Mr. Ledger testified that at no time was he, the CMH, or the Bowie safety manager in the red zone, which was on the right side of the CMM, while the machine was in operation. (Tr. 96-99). 

2.        Summary of the Parties’ Arguments

The Secretary argues that Bowie violated section 75.220(a)(1) because several miners entered the “red zone” in the No. 3 entry while the CMM was in operation.  The Secretary cites the roof control plan, which requires that during mining all employees must be under permanent support and not exposed to sudden movements of the mining equipment or other pinch points.  (Sec’y Br. 8).  Inspector Allen testified that three miners were exposed to sudden movements of the CMM while in operation.  Id. 

            The Secretary maintains that the violation was S&S because it met the four elements of the Mathies test.  There was a violation of the mandatory safety standard, the action of the CMM operator created a discrete safety hazard to miners that were in the red zone, and injury to the three miners was reasonably likely because the miners were positioned between the CMM and the coal rib when the CMM was tramming.  (Sec’y Br. 9-11).  The Secretary believes that there was a reasonable likelihood that the hazard contributed to would have resulted  in a serious injury because Inspector Allen testified that if the CMM were to suddenly pivot into the three miners the resulting injuries would have been significant or fatal.

            The Secretary asserts that the violation was the result of Respondent’s moderate negligence.  (Sec’y Br. 11-12).  Inspector Allen testified that he believed that the CMM operator was careless but he was not acting as an agent of the operator.  The Secretary states that Bowie had notice of the dangers related to CMMs and notice of MSHA’s intent to enforce section 75.220(a)(1).  Id.

            Respondent argues that no violation of section 75.220(a)(1) existed because the roof control plan only applies to a CMM turning a crosscut, not mining into a straight.  (Bowie Br. at 16-17).  The CMM was mining into a straight when Inspector Allen observed the alleged red zone violation so Respondent believes there was no violation of the roof control plan.  Id.  

            Respondent also argues that it did not violate the cited provision of the roof control plan as the plan is interpreted by the Secretary.  (Bowie Br. at 19, Ex. G-3).  The CMM operator testified that at no time was he, the CMH, or the Bowie safety manager in the red zone while the CMM was in operation.  (Bowie Br. at 20-23)

             Respondent asserts that the roof control plan was ambiguous because it did not include red zone diagrams or descriptions that included the conditions at issue.  (Bowie Br. at 19-20).  The roof control plan did not incorporate MSHA’s red zone drawings that the inspector relied upon at the hearing with the result that the citation must be vacated.  Id.  

3.       Discussion and Analysis

 

I find that the Secretary did not establish a violation of section 75.220(a)(1) because the cited provision of the roof control plan was ambiguous when applied to the facts of this case.  The inspector specifically cited a violation of page 20 of the roof control plan.  That page only shows diagrams of CMMs turning into entries from crosscuts.  The two diagrams depict a CMM turning a crosscut to the left and a crosscut to the right, but do not depict a CMM mining straight into a heading as occurred here.  In order to show that a plan provision is not ambiguous, the Secretary must satisfy its burden by establishing that the provision was intended to apply to CMMs mining into a straight.  See Jim Walter Resources, Inc., 9 FMSHRC 903 (May. 1987).  The language of the plan that references the two diagrams is on page 11 of the plan.  It states, in pertinent part, “[w]hen turning a crosscut, personnel shall remain under permanent roof support and out of the danger areas as shown on page [20] of the plan.”  (Ex. G-3, p. 11).[3] The two diagrams show situations in which the CMM is turning.  Nothing in the diagrams or in the language of the plan that references the diagrams indicates that red zones are created when the CMM is operating on the straight with the tail piece directly behind the CMM.  The CMM was not turning a crosscut at the time the inspector observed the conditions.

            In his brief, the Secretary referred to a provision of the plan that was not cited by the inspector or otherwise referenced in the citation.  This section of the roof control plan states that “[a]t all times during the mining and place changing cycle, all employees will be under permanent support and not exposed to sudden movement of the mining equipment or other pinch points.”  (Ex. G-3, p. 11).  The inclusion of this provision in the plan creates an ambiguity because it is inconsistent with the language related to the diagrams on page 20.

              The Secretary also supported the inspector’s assertion that the miners were in an area designated as a red zone by referring to Government Exhibit 6.  (Tr. 24-26, Ex. G-6).  This exhibit, entitled “Red Zones Are No Zones,” includes eleven diagrams that illustrate red zones when a CMM is positioned for different types of cuts. The exhibit used by Inspector Allen to show the miners’ location is not controlling because the particular diagram on the exhibit he referenced was not included in the mine’s roof control plan.  (Tr. 118-19; Ex. G-3).  It is noteworthy that the inspector testified that he believed that the plan was vague as to the exact procedures for red zone safety and he recommended that the plan be modified to include red zone diagrams that accurately depict the use of CMMs at this mine.  (Tr. 83; Ex. G-19).

            In Jim Walters, the Commission held that in plan violation cases, the Secretary “must establish that the provision allegedly violated is part of the approved and adopted plan that the cited condition or practice violates the provision.”  9 FMSHRC at 907.  The Commission also held that the Secretary must dispel any ambiguity in the plan by “establishing the intent of the parties on the issue through credible evidence as to the history and purpose of the provision and evidence of consistent enforcement.”  Jim Walter Resources, Inc., 28 FMSHRC 579, 589 (Aug. 2006) (citations omitted).  In the present case, the drawings on page 20 of the plan and the interpretative language on page 11 seem to suggest that a red zone only exists under the plan when a CMM is turning into a heading.  A different provision in the roof control plan and her exhibit with eleven red zone diagrams seem to suggest that danger zones around CMMs should be much more extensive and that they should apply whenever the CMM is in operation.  I find that the intent of the parties is not at all clear on this issue and the Secretary did not present credible evidence to clear up this ambiguity.  The Secretary did not present evidence as to the history and scope of the roof control plan with respect to red zones or relating to any previous enforcement activity concerning red zones.  Inspector Allen noted that he had never observed miners working in the red zone around a CMM during previous inspections at this mine.  (Tr. 87). 

            I find that the Secretary did not satisfy his burden of proving that the conditions Inspector Allen observed on May 3, 2010, violated the Mine’s roof control plan.  As a consequence, the Secretary did not establish a violation of 75.220(a)(1).  Citation No. 8470076 is hereby VACATED.

III.  SETTLED CITATIONS

            On May 16, 2013, I granted the Secretary’s motion to approve partial settlement in these cases.  I approved the settlement of Citation Nos. 8470080, 8470098, and 8470323 in WEST 2010-1727 and Citation No. 8470075 in WEST 2011-278.  I ordered Bowie to pay a total penalty of $7,900.00 for those four settled citations.    

IV.  APPROPRIATE CIVIL PENALTY

 

            Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an appropriate civil penalty.  I have considered the Assessed Violation History Reports, which are not disputed by Bowie.  (Exs. G-1 & 21).  At all pertinent times, Bowie was a large mine operator.  The violations were abated in good faith.  The penalty assessed in this decision will not have an adverse effect on Bowie’s ability to continue in business.  The gravity and negligence findings are set forth above. 

 

V.  ORDER

 

            Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the following civil penalties:

            Citation No.                                        30 C.F.R. §                             Penalty

 

WEST 2010-1727

 

            8470097                                              75.1725(c)                               $2,000.00        

           

WEST 2011-278

           

            8470076                                              75.220(a)(1)                          VACATED        

           

 

                                    TOTAL PENALTY                                                  $2,000.00

 

 

            For the reasons specified in this decision, the citations are MODIFIED or VACATED as described above.  Bowie Resources, LLC, is ORDERED TO PAY the Secretary of Labor the sum of $2,000.00 within 30 days of the date of this decision.[4]

 

 

 

 

           

 

 

 

                                                                                    /s/ Richard W. Manning          

                                                                                    Richard W. Manning

                                                                                    Administrative Law Judge

 

Distribution:

 

Gregory Tronson, Esq., Office of the Solicitor, 1999 Broadway, Suite 800, Denver, CO 80202-5708

 

R. Henry Moore, Esq., Jackson Kelly, 3 Gateway Center, Suite 1340, 401 Liberty Ave., Pittsburgh, PA 15222

 

RWM/jm