FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue N.W. Suite 520 N

Washington, D.C. 20004-1710

(202) 434-9933

June 14, 2013

DECISION

Appearances:              Joseph M. Lake, Esq. and Cheryl L. Adams, Esq., Office of the Solicitor,

                                    U.S. Department of Labor, San Francisco, California for the Petitioner

                                    Donald W. Tibbals, pro se, and Jacob Lake, pro se, Fernley, Nevada for the Respondent.

Before:                        Judge Moran

            In this decision under the Federal Mine Safety and Health Act, (“Mine Act” or “Act”) Gopher Construction, (“Gopher”), at its Mull Lane Pit, was cited by MSHA for alleged violations of berm standards found at 30 C.F.R. § § 56.9300 and 56.9301. For the latter standard, MSHA also contends that Donald Tibbals, the owner of Gopher, knowingly violated that provision, and on that basis seeks personal liability against him under section 110(c) of the Act. Gopher denied all charges, asserting not only that the standards had not been violated but also that MSHA did not have jurisdiction over Mull Lane, as the operation had closed. An evidentiary hearing was held on September 20, 2012 in Sparks, Nevada.

            For the reasons which follow, the Court finds that there was jurisdiction under the Mine Act and it upholds the violations charged to Gopher, while significantly reducing the penalties for those violations from the amounts proposed by the Secretary. As for the section 110(c) charge, the Court dismisses that matter, finding that Mr. Tibbals did not knowingly violate the standard.

The Issue of MSHA Jurisdiction

            At the outset of addressing this issue, the Court notes that there is essentially no factual dispute over the activity observed by the Inspector at the time he was at the Mull Lane Mine. Rather, the jurisdictional dispute involves whether, despite that activity, the mine had “closed” vis-a-vis MSHA’s jurisdiction over that activity.  

            MSHA Inspector Jason Jeno inspected Gopher’s Mull Lane Mine on October 15, 2009 as part of a regular, or “EO1,” inspection. Upon arriving, he observed “approximately three miners on the mine site,” and also saw some haul trucks in the back. To him, “[i]t looked like they were moving some material [adding that there was] “an excavator operating as well.” Tr. 37. Based on what he saw, the Inspector “assumed [the trucks] were getting loaded by the excavator and then hauling material to a location to dump it.” He stated that the trucks “were backing up on [a stockpile] and dumping material over the edge.” Tr. 37. The Inspector described Mull Lane as a typical sand and gravel operation. Tr. 29-30. He added that, based on information given him by Gopher employee Alan Skinner, Gopher was “moving raw material from a corner of their pit and were moving it over to a staging area, or a stockpile, to be crushed, to have a crusher come in and crush it down at a later date [for sale].” Tr. 139-140. From that conversation, it was Inspector Jeno’s understanding that there was a dispute between Gopher and the BLM and that Gopher had to get some material moved out of the way. Tr. 46. It was also the Inspector’s “understanding” that Gopher was moving the material down and that they were going to crush it at some later time. Tr. 46. Although the Inspector could not recall if he included Skinner’s remarks in his notes, he affirmed that, apart from that, he still would have cited the operation because he believed that the mine was not closed but rather was operating. Observing what he considered to be dangerous dumping activity, the Inspector issued an imminent danger order and noted violations related to that activity. The day after observing the alleged violations, the Inspector returned to the mine to serve the citations, viewing, in terms of activity on that second day “some customer trucks being loaded out . . .” Tr. 194.

            Respondent has challenged MSHA’s jurisdiction on the grounds that its Mull Lane operation had closed and therefore that the activity observed by the Inspector was construction activity, not mining. Although not formally testimony, the Court notes the following from the opening remarks of Mr. Tibbals at the hearing. These are mentioned because they may be deemed as admissions and also because Mr. Tibbals, who is not an attorney, acted pro se and because there is largely no dispute about his opening remarks. In fact, the Court concludes that accepting Mr. Tibbals’ opening statement about Gopher’s activity, but not accepting the assertions about the effect of that activity, establishes, together with the record as a whole, that Gopher’s cited activity was plainly mining and therefore under MSHA’s jurisdiction.

            In his opening remarks, Gopher’s Mr. Tibbals acknowledged that the Bureau of Land Management (“BLM”) is the neighbor of Mull Lane pit. The BLM property has a use permit from the Nevada State Department of Transportation (“NDOT”) on that land and they use it to extract gravel for highway projects. Mull Lane mines on its side and BLM mines on its side. Tibbals stated that the last time NDOT did a job there, they left a 1 to 1 slope, that is a slope of 30 feet down on a 1 to 1 slope. Asserting that high school students travel along the fence line separating Mull Lane from the BLM site, Tibbals was concerned that a student could be injured because of that steep incline. This prompted him to discuss his concerns with BLM in April 2008. His suggestion was to eliminate the steep pinnacle separating the two property lines. Once BLM accepted his proposal, they “started back in the Mull Lane pit,” that is, they opened it up to accomplish the goal of establishing a 3 to 1 slope in place of where the 1 to 1 slope existed. Thus, Gopher’s purpose was to do a “safety reclamation.” Tr. 20-21. As Gopher’s mining business had already stopped, Gopher rented the crushing equipment and began re-sloping the pit. Tibbals emphasized that the material they were removing was from BLM land but it was not intended for crushing nor for anything else. Id. Thus, Tibbals maintained that the order of events was that it filed a mine closure on the first of October and then began getting ready to put the fence line in. Tr. 22. He further explained in his opening that there was insufficient material to establish the fence line, so they brought in an excavator and two haul trucks to accomplish that. Accordingly, Gopher maintains that at that point in time it was acting as a contractor and that it had a contractor’s license to build the boundary line fence. Papers were filed with MSHA, closing the mine. Tr. 22. Although the mine is closed, Tibbals acknowledged that occasionally they go to the site with a loader and load material from there for local deliveries. Tr. 24. However, it labeled this activity as a load-out site, and not a crushing or mining site. Gopher maintained that the site is already mined out so that the prospect of further mining there is highly doubtful, as that would require taking material from BLM property. Tr. 24.

            In sum, the Court finds, on either of two theories, that MSHA jurisdiction was established. First, there is ample evidence that Gopher continued to “mine,” per its contract with BLM. Additional discussion about this follows. Second, even if viewed strictly as a re-sloping activity, that plainly falls within reclamation activity. The mining process is not so narrowly construed so as to end when the last shovelful of material is removed from its natural deposit. Such a conclusion would be artificial and illogical. This is because the mining process continues as the minerals are relocated. The process also continues with any necessary steps to shut down the mining site, whether that is a temporary or permanent status.

            DOL 17 is the statement MSHA Inspector Van Wey obtained from Mr. Tibbals. Tr. 219. The Petitioner acknowledges that Gopher had submitted a mine closure notice “about a couple of weeks before [the inspection in issue here].” Tr. 233-234. Van Wey was asked whether, if Gopher was moving material and building a fence line, and doing some excavating, and otherwise working along the border between the two properties, whether that would be considered mining activity. Tr. 235. He responded that he would consider such activity as part of the mining process, as reclamation has been considered to be part of that process. He noted that the area that was being excavated was created because of the mine site and that if the mine were not there, the fence line issue would never have been created. Accordingly, it was his view that reclamation activity, taking down this particular area to re-establish a fence line, was a direct result of mining activity. Accordingly, he would consider that to be mining activity. Tr. 235. The Court agrees.

            Challenging Inspector Van Wey’s statement that Gopher was mining, the Inspector was asked by the Respondent about DOL 30 at page 4, where Mr. Skinner responded that the operation was “putting in a fence.” Tr. 261. The Inspector did agree that, if he were to come upon this operation, putting aside that it is a mining operation, and he observed someone moving material to put in a fence, he would not find that sufficient to consider it as mining. Tr. 262. However, he added that if he saw individuals working on a stockpile, and dumping there, he would consider that mining. Tr. 262. Even that activity, however, that is, backing up to a stockpile and dumping would only be mining at a mine site. Tr. 263. The Court finds that examining the fence activity in isolation, ignoring the context of that activity, would create an inaccurate picture.

            The Respondent’s Exhibit B, their contract with BLM to construct a new fence line, was used in an effort to counter the Secretary’s contention that Gopher was mining. The Court asked some questions about this last issue. It posed to the witness, “If in fact Gopher Construction sends a letter to BLM in April 2008 in which they talk about that they would like to close [their] pit and use the property for other purposes, if [the inspector] accept[s] that as an accurate statement, on what basis did [he] determine that the mine was still in operation at the date of these citations?” Tr. 265. The Inspector’s responded that MSHA considers activities such as the fence line, to be part of the reclamation process, with the reminder that this area was created as a mine. Tr. 265.

            Gopher’s owner, Mr. Tibbals, testified and, as he was acting pro se, his testimony was presented in a narrative form. His testimony largely tracked his opening remarks. He stated that Gopher and the Bureau of Land Management/ Nevada Department of Transportation shared a property line. His concern was “the fence line [which] had a foot of dirt on each side of the fence line and a near vertical slope on each side.” Tr. 270. Tibbals repeated that the mine closure was filed October 1, 2009. After that, the mine was in “construction mode” and it was in that mode “to finish the toe of the slope and to put a fence in for BLM.” Tr. 272. Tibbals stated that mining has never resumed at Gopher after that date. Tr. 273. If one were to visit the site today, one would see stockpiles of material on the site, including the stockpile that was discussed at this hearing. Tr. 273. No heavy equipment is present there. The “construction mode” was completed in November 2009. He added that the fence project took only ten days to complete. Tr. 274. Mr. Tibbals does continue to own the property but that, as of November 2009, the operation has not sold any product, nor done anything with the materials on it. Some existing material, which he stated had been previously processed, had been delivered. He admitted that some 60,000 tons of gravel, which has commercial value, remains at the site and that it could be sold if the economy recovers. Tr. 274- 275.

            On cross-examination Mr. Tibbals agreed that Gopher had a contract to purchase materials from BLM. Tr. 293, DOL 26, at page 4. The contract the government is referring to was to purchase land or property from BLM’s site, abutting the Gopher mine. Tr. 293-294. Under that contract, dated October 4, 2008, Gopher removed some 31,000 cubic yards of material from BLM property. Tr. 294. When the Court inquired as to the relevance of this activity, occurring as it did more than a year before the citations in issue here, the government asserted that the reclamation process occurring here was as a result of this removal process the year before. Tr. 295. The fence line, Mr. Tibbals agreed, was the property line between Gopher and the BLM property. Tr. 295. That material, removed from BLM property was crushed by Gopher, but it has not yet been sold. Tr. 296. If the economy rebounds, it is Gopher’s intention to sell that material. Tr. 297.

            Gopher was getting ready to install the fence line but had not yet started doing that at the time of the inspection. This was its obligation under the contract with BLM. Tr. 297. As reflected at Exhibit B, under provisions four and five, Gopher was responsible for establishing a fence line after removing the material from BLM’s property. Tr. 299. Thus, the connection between Gopher’s mining activity and the fence line is undeniable. That removed material has been stockpiled but not crushed nor sold. Tr. 299. DOL 28 shows sales by Gopher during the week of the inspection in issue and that material was sold from the Mull Lane pit at that time.

            Inspector Jeno stated that when he went to the mine site, he was not aware that the mine had been closed nor that paperwork associated with that closing had been submitted to MSHA. Tr. 82. Respondent’s Exhibit A was admitted and it reflects that the Respondent did in fact submit such closure paperwork, dated October 1, 2009. Tr. 83. However, it is noted that Gopher described its operation as “temporarily closed.” Id. As mentioned earlier, it is Gopher’s position that, on October 15, 2009, Gopher Construction was operating as a construction company at Mull Lane for the purpose of constructing a fence line, pursuant to Gopher’s contract with the Bureau of Land Management. R’s Br. at 2. Gopher admits that, in constructing the fence line, it used heavy equipment to move earthen material for the purpose of establishing that fence line. Id. at 3. Gopher emphasizes that the establishment of the fence line was its “sole purpose” for entering the mine site. Accordingly, it asserts that it was present at Mull Lane “with the intent to construct a fence line and only that.” Id. at 3 (emphasis added). In this respect, Gopher points out that Gopher Construction also operates as a licensed construction company in Nevada, holding a Nevada Contractor License, and it maintains that it was acting in that capacity on October 15, 2009. Thus, Gopher argues that it operates in two capacities; as the operator of sand and gravel mines and as a construction company and building contractor. Id. at 2-3.

            Gopher does not take issue with the assertion that reclamation activity is within MSHA’s jurisdiction. It simply contends that it was not doing reclamation work at the time of the alleged violation. Instead, as just mentioned, it was acting as a site contractor, simply moving earth to construct the fence line between its land and that of BLM. Thus, it contends tha its role was then confined to that of a building contractor in furtherance of carrying out its contractual obligation with the BLM. Gopher adds that the material was moved during the construction of the fence line and then dumped into an existing stockpile. That stockpile, it declares, was never to be crushed. In support of that claim, Gopher states that, even now, that material remains in the stockpile and it has never been crushed, nor sold. R’s Br. at 3. In its Response Brief, Gopher notes that it does not take issue with the claim that the cited activity comes within the ambit of interstate commerce. R’s Response Br. at 3. Instead, as noted before, Gopher’s jurisdictional challenge is directed to whether mining was being conducted. It notes again that its mining operations at the site had been suspended since October 1, 2009. It was after that closing that Mr. Tibbals instructed his crew to begin constructing the fence line per the contract with the BLM. Thus, Gopher maintains that, as soon as it closed the mine, it began construction of the fence and that an additional motivation for that work was Mr. Tibbals’concern over the safety of local high school students who walk along that fence line. R’s Response Br. at 3-4.

            The Secretary agrees that to be subject to the Mine Act, a site must meet the definition of a mine and that the activity must affect interstate commerce. Sec. Br. at 7, citing 30 U.S.C. §802(h)(1), 30 U.S.C. § 803. Looking to the pertinent provision, a mine is defined as “an area of land from which minerals are extracted in nonliquid form” and “lands, excavations . . . slopes, equipment, machines, tools, or other property . . . used in, or to be used in, or resulting from the work of extracting such minerals from their natural deposits in nonliquid form.” The Secretary places emphasis on the words “or resulting from the work of extracting such minerals from their natural deposits in nonliquid form” portion of that definition. Id. at 7. The Secretary also points out what is indisputable – it was the intent of Congress to broadly construe the Act’s definition of a “mine.”

            Here, the Secretary contends that Gopher was so excavating minerals from their natural deposits, with the intent to crush and sell that material. It also contends that the material was being excavated as part of reclamation work at the Mull Lane site, in order to restore the land to its original contour. Sec. Br. at 8, citing Donovan v. Carolina Stalite Co., 734 F. 2d 1547, 1554 (D.C. Cir. 1984). The Secretary points to Gopher’s contract with the United States Bureau of Land Management (“BLM”) to “purchase and remove 31,000 cubic yards of sand and gravel from BLM’s land . . . [and in order to accomplish that agreement] Gopher used a dozer, feeder, crusher, and other equipment [to remove the] sand and gravel off of BLM land [and] into the Mull Lane pit and [then] to process [that] material.” Id. Thus, the Secretary contends that Gopher’s extraction and processing of the sand and gravel makes its site a mine. Id. at 9.

            The Secretary further asserts that “[a]fter Gopher removed and processed the sand and gravel from BLM’s property, Gopher’s contract required [it] to re-establish a fence line between Mull Lane and BLM’s neighboring property.” On the date of the MSHA inspection in issue here, Gopher determined that more material was needed to establish the fence line and an excavator and two haul trucks were being used at that time to build that fence line. Id. at 9.

It is the Secretary’s position this work “to restore the land and re-establish the fence line was reclamation activity subject to MSHA’ jurisdiction.” Id. Accordingly, the Secretary returns to the “resulting from” language to support its contention that the cited activity was reclamation work. Id. at 10, citing a host of administrative law judge decisions upholding jurisdiction over reclamation activities. Restating its argument, the Secretary contends that, as the Respondent was excavating and moving material resulting from its prior extraction of minerals from their natural deposits, this constituted mining activity, in the form of reclamation work. The Court agrees that, at a minimum, reclamation work was occurring.

            Though noted earlier in this decision, as MSHA field office supervisor Troy Van Wey, expressed: “[the] area that was being excavated was created because the mine site’s there. If the mine site wasn’t there, it would never have been created. So reclamation, taking this particular area to re-establish a fence line, was a direct result of mining activity.” Sec. Br. at 11, Tr. 235. Accordingly, with the fence line and associated activity, work was still needed to be done to bring the property back to its pre-mining state, restoring it to its original contour. Therefore, the Secretary contends, MSHA’s jurisdiction continued. The Secretary adds that “Gopher was [also] excavating minerals in nonliquid form on the date of the inspection and there is evidence that Gopher intended to crush this material.” Id. at 12. As crushing is part of the processing of sand and gravel before the finished product may be sold to customers, the Secretary offers that this “evidence” constitutes an additional basis to conclude that this excavating was mining activity, leading to such material entering commerce. Id.

Interstate Commerce.

            Respondent’s owner, Don Tibbals, while stating that he has been operating Gopher Construction since 1978, acknowledged that he has been in the surface mining industry for over 45 years. Operating a total of 5 open pit sand and gravel mines, Gopher informed that two of its operations, including the “Mull Lane Pit” operation (“Mull Lane”), which is the subject of this litigation, were not presently operational. The Mull Lane Pit has been closed since 2009 and, as noted, Gopher submitted to MSHA notification that operations at that site had ceased.

            The Secretary asserts that Gopher’s mining operation affects interstate commerce. Citing Section 4 of the Mine Act, the Secretary notes both that the provision covers mining activities which affect commerce and that the authority to so regulate such interstate commerce is to be broadly construed. As this is a plain and inarguable point of law, there is no purpose served to a further discussion and the Court agrees that, on multiple grounds, Gopher’s activity affected interstate commerce. In fact, Gopher subsequently dropped this argument. Rather, the sole jurisdictional issue in dispute is whether Gopher was engaged in mining.

            A few additional observations are made about Gopher’s notification of the mine closing and its contract with BLM. As noted, per Gopher’s Exhibit A, its mine closing letter to MSHA’s Elko, Nevada office on October 1, 2009 lists the mining operation at its Mull Lane Pit as “temporarily closed.” Exhibit B, which relates to Gopher’s contract with BLM informs, in a letter dated April 15, 2008, that Gopher wanted to “close our pit and use the property for other purposes.” That letter continues that “[i]n order to [close the pit] it would benefit all parties if [Gopher] were to remove the slope an put a new fence line on [Gopher’s] property.” Gopher stated it was “willing to pay a small Royalty on approval of 50,000 cy of removed material.” Subsequently, the Nevada Department of Transportation wrote to Gopher on February 3, 2009 regarding the removal of “the mineral aggregates” from that pit, per BLM Contract No. NVN-085629. The letter noted that Gopher was authorized to remove 31,000 cubic yards and that the material was to be removed so that a 3:1 slope would result. February 3^rd letter, attached Gopher’s contract with BLM. That contract is described as a “Contract for the Sale of Mineral Materials.” Thus, BLM was selling mineral materials (sand and gravel) in the quantity of 31,000 cubic yards to Gopher for a selling price of $16,275.00. Gopher signed this contract on September 4, 2008. Distinct from Gopher’s Exhibit B, the contract within that exhibit has its own distinct Exhibit “B.” The contract’s Exhibit B contains three salient pieces of information, at stipulations 2, 4, and 5, which inform about Gopher’s activity. Stipulation 2 provides that Gopher is entitled to “extract and remove mineral materials from the public lands only [and that] [p]rocessing, segregation, and stockpiling of mineral materials on the public lands are not authorized under [the] contract.” Stipulation 4 informs that Gopher “will be responsible for the cost of restoration and reestablishment of the existing center-west 1/16 corner, Sec. 24, T. 20N, R. 24E, that must be removed to facilitate material removals from the contract area. The operator will also be responsible for the restoration or reestablishment of any additional survey monuments, corners, or accessories that are destroyed in the course of operations.” Finally, and most importantly with regard to this litigation, Stipulation 5 provides that “[t]he operator will be responsible for replacing the boundary fence that must be removed to facilitate material removals from the contract area. The boundary fence must be of the same construction as that which resides on site at present, which is 3 strand barbed wire with T-posts.”

            A reading of these papers from Respondent’s Exhibit B leads to the inescapable conclusion that Gopher’s activity regarding the fence line cannot be fairly characterized in the manner urged by Gopher as “construction” work. Clearly, this activity was inextricably related to Gopher’s mining activity and at the very least constituted reclamation activity. Accordingly, the Court concludes that Gopher was engaged in mining at the time of the cited violations.

The Alleged Violations

Docket No. WEST 2011 73 M

            On October 15, 2009 Gopher was issued Citation No. 6387450, a section 104(d)(1) citation for violating 30 C.F.R. 56.9301. Gov. Ex 1. MSHA proposed a $6,624.00 civil penalty for this. The cited standard, entitled, “Dump site restraints,” provides: “Berms, bumper blocks, safety hooks, or similar impeding devices shall be provided at dumping locations where there is a hazard of overtravel or overturning.” “Berm” is a defined term, found at 30 C.F.R. § 56.2, as “a pile or mound of material along an elevated roadway capable of moderating or limiting the force of a vehicle in order to impede the vehicle’s passage over the bank of the roadway.”

Docket No. WEST 2011 863 M – The 110(c) action against Mr. Tibbals

            On October 15, 2009, Donald W. Tibbals was issued a section 104(d)(1) citation arising out of the same facts from Docket No. WEST 2011 73M, next above. The Secretary seeks a $3,700.00 civil penalty for this.

Docket No. WEST 2010 470-M

            Also on October 15, 2009, Gopher was issued a section 104(d)(1) order for violating 30 C.F.R. 56.9300(b). Order No. 6387451. Entitled “Berms or guardrails,” it requires that “(a) Berms or guardrails shall be provided and maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment. (b) Berms or guardrails shall be at least mid-axle height of the largest self-propelled mobile equipment which usually travels the roadway.”

Findings of Fact

Docket No. WEST 2011-73 M         

            Inspector Jeno addressed Citation No. 6387450, which relates to Docket WEST 2011-73 M. Referring to his earlier testimony in connection with the jurisdiction issue and regarding the activity of the haul trucks he observed at the site, the Inspector again stated that he saw a haul truck backing up to the edge of a stockpile that was being created, and witnessed “material sloughing out from underneath the tires, as the truck was backing up to the edge.” Tr. 49. Seeing the truck’s rear axle starting to sink in the soft ground, Inspector Jeno thought that the truck was going to go all the way over the edge.

            This situation prompted him to issue an oral imminent danger order to Gopher employee, Alan Skinner. Tr. 49. Mr. Skinner advised that the road had been built a few days earlier by Mr. Tibbals himself and that the work crew had been instructed to dump the loads off the stockpile in the manner that the Inspector had observed. That is, the drivers were instructed to bring the truck’s rear axle right to the edge until it started to sink in the ground and then to stop and dump. Tr. 52. Inspector Jeno stated that, at this dumping location, there was no berm present. According to the Inspector, Mr. Skinner related that he had brought up the subject with Mr. Tibbals regarding the matter of installing some berms or dump site restraints at the stockpile (i.e. dumping) area and, as discussed later, for the other violation, along the haul road, to make them safer, but that Mr. Tibbals turned down the suggestion, telling him to continue with the procedure that he had instituted, as described above. As discussed later, the Court views this oral recounting as at odds with Mr. Skinner’s statement to the MSHA Investigator. Gov. Ex. 30.

            Later, Inspector Jeno spoke with Mr. Tibbals about this matter and he advised that the method the Inspector had observed was as he had directed his workers to operate. Tr. 54. Mr. Tibbals rejected the Inspector’s suggestions to build a dump restraint or to dump on the ramp itself because, according to the Inspector’s retelling, that would require another piece of equipment and consequently Tibbals would have to pay another individual. Tr. 54. In a subsequent conversation between Jeno and Tibbals about this issue, but this time with Inspector Jeno’s Supervisor participating in the conference call, Mr. Tibbals reiterated that, in his view, the berms that were present were more than adequate.

            Based on his observations, the Inspector concluded that standard 56.9301 was being violated, on the grounds that the standard requires dump restraints where equipment is dumping over the edge, or near an edge, in order to prevent overtravel. Tr. 72. He marked the gravity as “highly likely,” with that determination factoring the number of trucks making dump trips throughout the day, a number which he estimated to be about 20 times. In the Inspector’s view, the idea that a truck would back up until its rear axle was right at the drop-off edge and at which point that axle would then start to sink in the loose, uncompacted, material, was in clear violation of the standard’s requirements. Tr. 73. The circumstances were aggravated because, in the Inspector’s view, that material could give-way at any moment. He also believed that a fatality could result, as a consequence, if a vehicle were to go off the edge and overturn. Tr. 73.

            Inspector Jeno did agree that the material absorbed the tires when the truck backed up and that the tires did sink into the material. Tr. 92. The Inspector further conceded that, based on a photograph within DOL 3, the tire tracks appear to have sunk some six to eight inches into the soil. Tr. 99. In the Court’s view this sinking appears to be more than six to eight inches, but certainly, DOL 3 at photograph 4 of 5, shows this sinking action occurred. Speaking to Gopher’s contention that the dumping location was on an incline, while the Inspector could not recall the steepness of the incline as the trucks backed up the ramp to the dumping point, he did agree that the trucks were backing up an incline in that dumping process. Tr. 93. However, the Inspector expressed that the fact there is an incline as one backs up does not constitute an exception to the requirement to provide a berm. Tr. 93. Nor, he added, is there an exception from the requirement to provide a berm if a truck, when backing up, is sinking in the material from its own weight as it moves back to the edge. Tr. 94. As discussed infra, the Court agrees with both of these conclusions. The Inspector did not agree with the suggestion that when a haul truck sinks into material, that action constitutes an impeding device, because the truck could still travel over the edge. Tr. 95. Had the truck applied a “little more power,” he believed, it would have gone over the edge. The Inspector admitted that, with regard to the vertical area where he contended there was no berm, he did not take a photograph of that condition. Tr. 175.

            As Inspector Jeno agreed that, before one reaches the edge of the material, there was a build-up of material where those tire tracks ended, the Court inquired why that build-up did not constitute a berm. Tr. 142. The Inspector stated that the build-up observed was created by the weight of the truck backing up, just before the truck stopped. He did not consider this to constitute a berm because it was not a pre-existing impeding device. Rather, it was created as the trucks operated, backing up. When asked how high the truck-created build-up was, the Inspector estimated it to be 16 to 18 inches, but it was noted that the trucks’ mid-axle height was 30 inches. Per section 56.9300, berms are required to be at least of mid-axle height. Thus, although the Inspector conceded that the next truck then arriving at the dump location would come up against the berm just created by the prior truck’s activity, it would still not be of sufficient height because it was not of mid-axle. Tr. 144. The Inspector’s overriding point was that tires sinking into material does not provide an impeding device. Tr. 146.

            The Secretary contends that rather than any berm being present, Gopher’s activity of backing up might have created some loose mounds of material but that this was merely incidental to that work and in any event it did not create a berm or similar impeding device. Sec’s Opp. at 5.

            As noted, Respondent Tibbals’ view is that the practice he instituted at the dumping location, where a truck operator, upon seeing his truck’s wheels sinking into the soft material, would then stop the truck, satisfies the standard. Respondent’s theory is that, by the truck sinking into the ground, that action satisfied the standard on the basis that it created an impeding device. An alternative theory, the Respondent also argues that a berm doesn’t stop a truck in any event. Rather, in Gopher’s view, it is the truck operator that stops the truck. This alternative theory is rejected by the Court as plainly contrary to the standard’s requirement.

            In its Response Brief, Gopher repeats its defense and adds some additional arguments to this charge. It points to DOL 3.1, a photograph, as the “exact conditions” observed by the Inspector and from that contends that the photo demonstrates that trucks stop about 3 feet from the edge of the dump site where a berm was created by the impeding device of the material, and began to dump [its] load. Thus, Gopher contends that the photo demonstrates both the truck stopping 3 feet from the edge of the dump site “with an impeding device and this resulted in a berm,” thereby satisfying the standard’s requirements. Gopher contends that if its arrangement does not amount to an impeding device, then MSHA needs to clarify its standard so that the mining community can understand what is acceptable. R’s Response Br. at 4. Further, it discounts the testimony of the MSHA Inspectors that its arrangement did not meet the standard as simply “the personal testimony of two individuals” expressing their interpretation of the standard, and nothing more. It also argues that, as the dictionary definition of “impede” means to bar or hinder progress, its arrangement meets the wording of the standard. Id. at 5.

            Gopher also emphasizes that MSHA Inspector Jeno omitted that the standard in issue, 30 C.F.R. 56.9301, allows “other similar impeding devices.” R’s Response Br. at 2. Again, it is Gopher’s position that, in compliance with that provision, its trucks approached the 6 to 7 percent inclined ramp to the dump site and when the driver observed the truck’s rear tires “reach the impeding device shown in DOL 3.1 they would stop and dump their loads.” Id. Gopher also points to a MSHA Handbook at pg. 15, and Section G, Safe dumping practices near the edge of a stockpile. There, under “good practices,” it advises that “[t]he top of the dump should be kept sloped a small amount, perhaps 2 to 3 percent, so that in backing up to dump, the trucks will be going up a slight grade.” Id. at 3. Gopher asserts that it bettered that advice, by having a 6 to 7 percent inclined slope up to the dumping point and it views this slope to be an additional impeding device. The Court rejects this contention as unsupported by the standard. An incline is plainly not a “similar impeding device.”

            Gopher has also maintained that the berm in issue was mid-axle height. R’s Br. at 3. Mr. Tibbals stated that he acted as a spotter and that when the haul truck’s rear tires “started to settle in the soft material” the trucks were directed to stop at that point and to dump their loads. Thus, Gopher states that it implemented this procedure and considered it to be “training.” It asserts that the truck operators felt very comfortable with this procedure. Gopher believes that its procedure fell well within the MSHA guidelines because its method of using the sinking action of material to warn the haul truck operator that it was safe to stop and dump their loads constitutes an impeding device. Gopher adds that MSHA’s Guidelines acknowledge that these devices are not intended to stop a truck a haul truck from going over the edge or from overtravel or overturning, but rather to alert a driver that he is at the stop and dump point. Thus, Gopher maintains that it “constructed the required impeding device and administered [the] required training . . . as to the safest method of dumping their loads in [that] location.” R’s Br. at 4. Gopher believes that if MSHA will only permit specific impeding devices, the agency needs to identify them. Id. at 6.

            The Court observes that for the sinking process to be considered as a compliance method, one would have to conclude that this constituted a similar impeding device. The Court is of the view that a sinking action, although it may serve to alert or warn a truck driver as to the point to stop and dump the load, cannot be considered to be such a “similar impeding device.” As noted by Judge Miller in Sec. v. Eureka Rock, 34 FMSHRC 476, 2012 WL 894520, ( Feb. 21, 2012), “Administrative regulations are generally subject to the same principles of construction as statutes. Miller v. United States, 294 U.S. 435, 442 (1935). In analyzing the rules of statutory construction, the Supreme Court of the United States has stated that the established canon of construction is that similar language contained within the same section of a statute must be accorded a consistent meaning.” Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 501 (1998). The Supreme Court has further held that “there is a natural presumption that identical words used in different parts of the same acts are intended to have the same meaning. Atlantic Cleaners & Dryers, Inc. v United States, 286 U.S. 427 (1932). Furthermore, in Morton Int'l Inc., 18 FMSHRC 533 (Apr 1996), this Commission held that “regulations should be read as a whole giving comprehensive, harmonious meaning to all provisions”. Id at 536.” So too, in Tamko Roofing Products v. Sec. of Labor, 27 FMSHRC 829, 2005 WL 3198668, (Nov. 2005)(Judge Melick), it was noted that “[u]nder the rule of statutory and regulatory construction, ejusdem generis, when specific examples set forth in a statute or regulation are followed by general words, the general words are construed to embrace only objects *832 similar in nature to the specific examples. Garden Creek Pocahontas Company, 11 FMSHRC 2148 (November 1989); 2A Sutherland Statutes and Statutory Construction § 47.17 (6th ed.).”

            Accordingly, the Court determines that the “sinking action” which occurred here does not constitute a “similar impeding device” and that the standard was violated. However, that determination is a very different matter from issues of intentional conduct and unwarrantability.

            In terms of the negligence associated with this citation, the Inspector considered it to be “reckless disregard” because Mr. Tibbals had both ordered and observed the procedure, which the Inspector viewed to be a dangerous dumping practice. Tr. 74. While the Inspector’s testimony was imprecise on this, the Citation issued to Gopher, as distinguished from the 110(c) action against Mr. Tibbals, listed the negligence as “high,” and not as “reckless disregard.” Also considered by the Inspector in this regard was Mr. Tibbals’ rejection of Mr. Skinner’s expressed concerns about the dumping practice. Tr. 74. The same considerations also led the Inspector to conclude that the violation was an unwarrantable failure. The Inspector determined that this practice had been going on for “approximately two days.” Tr. 74. This matter was specially assessed. Tr. 75-76. Gov. Ex. 4.

            Inspector Jeno also marked this Citation as “significant and substantial” and an “unwarrantable failure.” A significant and substantial (“S&S”) violation is described in section 104(d)(1) of the Act as a violation “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 properly designated S&S “if, based upon the particular facts surrounding that 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). The Commission has explained that “[i]n order to establish that a violation of a mandatory safety standard is significant and substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of danger to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria).

            “Unwarrantable failure,” has been defined by the Commission as “aggravated conduct constituting more than ordinary negligence.” Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987). The Commission has stated that whether a citation is an “unwarrantable failure” is a question that should be evaluated based on the facts and circumstances in each case, and in light of each of the following factors: 1) the length of time that the violation has existed; 2) the extent of the violative condition; 3) whether the operator has been placed on notice that greater efforts were necessary for compliance; 4) the operator's efforts in abating the violative condition; 5) whether the violation was obvious or posed a high degree of danger; and 6) the operator's knowledge of the existence of the violation. Consolidation Coal Co., 22 FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346 (Dec. 2009).

            As noted, the violation has been established. Gopher’s “sinking action” did not constitute a “similar impeding” device. The violation was also “S&S.” The discrete safety hazard was the risk of vehicle overtravel and overturning if it were to go beyond the edge of the dumping location. The Court relies upon the Inspector’s opinion to support its conclusion that there was a reasonable likelihood that absence of a similar impeding device would contribute to the occurrence of an injury. Apart from the Inspector’s opinion, it is obvious that the absence of such a device would so contribute to an injury. Finally, if the event were to occur, such injury would be of a reasonably serious nature. This conclusion is also reached on the basis of the Inspector’s opinion as well as the obviousness of the result if a truck were to go over the dump site edge.

            The Court does not believe, however, that this violation was an “unwarrantable failure” for a number of reasons. The violation was not of long duration, and its extent was limited to this single dumping location. The condition was immediately abated. More importantly, there was a genuine, though misguided, conclusion on Gopher’s and Mr. Tibbals’ part, that its method satisfied the standard. Respondent makes no contention that it did not know of the need for an impeding device. Rather, it erroneously concluded that its method equated to such a device. As DOL 3, 4 of 5, shows, there was a significant sinking action which had an impeding effect, albeit not one that satisfied the standard. Credibility necessarily plays a role in the Court’s conclusions for this issue, as well as for the related conclusion, to be addressed next, to the section 110(c) charge. Having concluded that Gopher and more particularly, Mr. Tibbals, genuinely, and not completely unreasonably, concluded that his method satisfied the standard, the Court finds that there was moderate negligence involved. It bears emphasis however that, in the future, and now being well-informed about the requirements for compliance, Mr. Tibbals must apply a less creative approach to compliance for this standard or be at high risk for a significantly higher penalty.

            Upon consideration of all the statutory criteria, the Court imposes a civil penalty of $2,000.00.

Docket No. WEST 2011-863 M ; the section 110(c) matter

            The Secretary maintains that Donald Tibbals violated section 110(c) of the Mine Act, contending that he knowingly authorized, ordered or carried out the violation of 56.9301. There is no 110(c) charge associated with the roadway berm violation under section 56.9300(b). For this alleged violation, associated as it is with Citation No. 6387450, the dump site restraint violation, the Secretary seeks a penalty of $3,700.00 be assessed against Mr. Tibbals. Gov. Ex. 8.

            Mr. Tibbals’ response to the section 110(c) citation is in accord with Gopher’s contentions for that associated matter. Consistent with those arguments, Mr. Tibbals reiterates that he provided what was required by MSHA standards and Guidelines under that underlying provision. This included instructing and showing his employees how to dump in a safe manner. R’s Br. at 4-5. It notes that no one was injured and contends that no employee voiced safety concerns over the procedure that was employed. Id. at 4. Accordingly, Mr. Tibbals contends that he acted in a responsible manner, careful to avoid placing any miners in harm’s way and that, from his perspective, no penalty should be assessed. Id. at 5. Mr. Tibbals further submits that his testimony demonstrates that he did not knowingly and willingly place his employees in any hazardous or dangerous situations. Further, it notes that the statement of Alan Skinner to MSHA does not support the contention that this matter was a knowing violation. Skinner did not say anything about the issue because he did not feel that the practice was unsafe, believing that there was no hazard involved. Gov. Ex. 30 at 4.

            Section 110(c) states: “Whenever a corporate operator violates a mandatory health or safety standard … any director, officer, or agent of such corporation who knowingly authorized, ordered, or carried out such violation, failure, or refusal shall be subject to the same civil penalties …” 30 U.S.C. § 820(c). An individual is subject to personal liability under section 110(c) if he is “in a position to protect employee safety and health [and] fails to act on the basis of information that gives him knowledge or reason to know of the existence of a violative condition.” Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983). The Commission noted in Secretary v. Matney, employed by Knox Creek Coal Corp., 34 FMSHRC 777, 2012 WL 1799023, April 25, 2012, that “The proper legal inquiry for determining liability under section 110(c) is whether the corporate agent knew or had reason to know of a violative condition. Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff'd on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 461 U.S. 928 (1983); accord Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-64 (D.C. Cir. 1997). To establish section 110(c) liability, the Secretary must prove that an individual knew or had reason to know of the violative condition, not that the individual knowingly violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) (citing United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)). **6. The Commission has explained that “‘[a] person has reason to know when he has such information as would lead a person exercising reasonable care to acquire knowledge of the fact in question or to infer its existence.”’ Id. (citation omitted). In addition, section 110(c) liability is generally predicated on aggravated conduct constituting more than ordinary negligence. BethEnergy Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992).

            In support of the Court’s conclusions, it notes that, per Mr. Tibbals statement to the MSHA investigator on December 9, 2009, he related “spend[ing] 2 hours on October 13, 2009 observing and training[.] He stood as a spotter and instructed the haul truck operators to back up, watch their rear tires, and when the rear tires started to settle in the soft material to stop and dump their load. [The mine then] repeated this [practice for] several dump cycles and even had the operators park their trucks and observe the other truck dumping. . . . When the operators and [Tibbals] felt comfortable with the training [he] left the site and returned four hours later for another hour of observation. [He] returned twice the following day to observe the procedure[.] [E]veryone was comfortable and understood the procedure and any hazards that may be involved. ...” Gov. Ex. 17, at p. 9. This statement is consistent with Mr. Tibbals’ testimony, as well as the Court’s overall assessment that he was acting in misguided good faith, running an operation that did take into account safety considerations and in a manner which refutes the allegations of a section 110(c) violation. It also contradicts the Secretary’s claim that Mr. Tibbals was solely motivated to save time by employing his “ground sinking” method of restraint. Nevertheless, as noted, the Court did uphold the violation of 30 C.F.R. §56.9301 from Docket No. WEST 2011-73-M and imposed, upon consideration of all the statutory factors, a significant penalty.

            For the reasons articulated above, relating to the underlying dump site restraint citation, the Court concludes that Mr. Tibbals did not have knowledge or reason to know that the procedure he employed failed to constitute a similar impeding device. Accordingly, with the caveat that future citations regarding berm related violations will not be viewed in such a lenient light, the Court vacates the section 110(c) matter.

Docket No. WEST 2010-470 M

            Regarding the one matter involved with this docket, a section 104(d)(1) Order, No. 6387451, the Secretary seeks a penalty of $2,976.00. Tr. 147. Gov. Ex 9 and 10. This citation was also issued on October 15, 2009 and, as noted earlier, it pertains to an alleged violation of 56.9300(b), another berm-related standard. This condition was in a separate, but adjacent, location from the aforementioned dump site citation. In the Court’s estimation, DOL exhibit 11 represents the best photographs among the photographic exhibits to gain an appreciation of this condition cited for this Order. At this location, the Inspector observed “where there were no berms alongside the roadway where the haul trucks had been traveling.” Tr. 150. The Inspector identified this distinct area as “the ramp and going down.” Tr. 150. As just mentioned, it was near the area where the truck drivers would back up to the stockpile and dump their loads. The cited road section had an approximate 15 foot slope and, at the location where the trucks would turn left upon leaving the dump point, there was a vertical drop-off of 8 to 9 feet. Tr. 151. Gov. photographs DOL 11. The Inspector marked the area where berms were needed with a zig-zag blue line, and the letter “C” was added to the exhibit to identify the subject area for this citation. This was the only area where berms were needed, for this alleged violation. Tr. 153. The Inspector added that some of this area, about a 14 foot section, had berms of 18 to 20 inches in height but that the rest of that area had no berms. The bermed portions were constructed of dirt. Tr. 154. DOL photo 11-2 is a clear photo of the ramp. The Inspector was at ground level when he took photograph 11-2. As mentioned, trucks used this ramp when exiting the dump site.

            Referring again to DOL Exhibit 9, the roadway, the Inspector stated that his concern was with one 100 foot area. He walked the ramp and observed that there were some areas along this 100 section with little or no berm along it. Tr. 161. The Inspector used a tape measure to determine the berm height in this area. Mid-axle height for the trucks using this area was about 30 inches. Here again, it was asserted that Mr. Alan Skinner, an employee at the Respondent’s operation, advised the Inspector that he had spoken with Mr. Tibbals about the need to install berms but that he was told the condition was adequate and that the road should continue to be used in its present state. Tr. 162. Because of the frequency of the road use, the Inspector believed that the gravity, that is the danger of overturning, was “highly likely.” Tr. 163-164. He added that since the drivers descending the ramp had to make a tight turn and because the roadway was only about 14 feet wide, if the turn was not made all the way, the risk of overtravel existed. Tr. 164. He believed that if this were to occur fatal injuries could result. Tr. 164. The Inspector also marked the negligence as “reckless disregard” for this citation, again because Mr. Tibbals was at the site and had constructed the road. Tr. 165. The condition had been present for about two days.

            Upon cross-examination, the Inspector explained that his reference to 15 feet referred to the angle of the slope but that 25 feet was associated with the 100 feet, which included the horizontal and vertical line together. These were estimates on his part. Tr. 168. In sum, it was the Inspector’s testimony that he found a 100 foot length, with a 15 foot slope, and that berms were absent from that area, as reflected on DOL 11-2. In response to the Court’s inquiry, the Inspector agreed that some areas had no berm at all and that other portions did have some berming but that nowhere was there berming of sufficient, that is to say, of mid-axle height. Tr. 175. The standard, 30 C.F.R. § 56.9300(b), requires that “Berms or guardrails shall be at least mid-axle height of the largest self-propelled mobile equipment which usually travels the roadway.”

            Regarding its defense to the roadway berm requirement, Gopher notes that in the Secretary’s photographic evidence at the hearing, a 55 gallon drum is depicted. That drum, Gopher states, has an approximate height of 36 inches. From this, Gopher concludes that “the distance of drop off based on [the picture of the drum] can only be an approx[imate] height of 36" over a 2% slope which falls within the MSHA Guidelines.” R’s Br. at 5. Restated, Gopher, using the photo of the drum as a reference point, contends that photo establishes that the berm in issue was high enough (i.e. at least 36" or more)” to satisfy the standard. In its Response Brief to the berm citation, Gopher repeats its contention that the 55 gallon drum pictured in DOL 11.2 is about 36" in height. Noting that the Inspector referred to an approximate 15 foot drop off, it contends that this estimate, based on the drum height reference, had to be inaccurate and that the drop off was “less than 36" with a less than 2% slope tapering back to ground level [and that this meets the requirements of 30 C.F.R. 9000(b). R’s Response at 3. Further, in its Response Brief, Gopher contends that while the Inspector referred to two areas of concern, his citation only identified one area. Gopher states that, in abating this citation, the Inspector only required it dump two loads of material from a loader along the haul road, as reflected in DOL 11.3. Accordingly, Gopher is contending that the Inspector did not identify a second area of concern until his testimony at the hearing and that such claims should be rejected by the Court in evaluating whether there was a violation. R’s Response Br. at 7. Although the Court considered these contentions, it concludes that the Secretary did establish the violation. Berms were needed and missing in the location identified by the Inspector.

            Upon consideration of the record evidence, the Court concludes that the violation of 30 C.F.R. § 56.9300(b) was established. However, given that the section 104(d)(1) citation, No. 6387450, pertaining to Docket WEST 2011-73, was modified to a section 104(a) citation because it was not an unwarrantable failure, the Order here must also be modified to account for that change. This Order must also be modified because the Court finds that it too was not the result of an unwarrantable failure. Given the relatively short distance needing berming, the relatively short drop-off, and the short period of time that the roadway had been in operation, the Court believes that these considerations work to diminish the negligence involved. However, moving to the S&S designation, the testimony, including the frequency with which trucks were traveling the roadway, establishes that there was a reasonable likelihood that the absence of berms could contribute to a reasonably serious injury occuring, should a truck leave the roadway. In sum, the Court concludes that the violation was significant and substantial and of moderate negligence. For this, it imposes a civil penalty of $1,500.00 penalty.

Summary

            Based on the foregoing, the Court upholds Citation No. 6387450, but modifies it to a section 104(a) citation, finding the negligence to be “moderate” and that it was “significant and substantial. For this, a civil penalty of $2,000.00 is imposed. For Order No. 6387451, the Court also finds that the violation was established, but that it was not an unwarrantable failure, but rather that moderate negligence was involved. Consequently, that Order is modified to a section 104(a) citation with a finding that it too was significant and substantial. As mentioned above, a civil penalty of $1,500.00 is imposed. The section 110(c) matter has been vacated. It is hoped that Mr. Tibbals will reflect upon the determinations made here, realize that harsher conclusions could have been reached, and make adjustments accordingly for his future mining activities.

Order

            Within 40 days of the date of this decision, Respondent Gopher Construction, Inc. is ORDERED TO PAY a civil penalty in the total sum of $3,500.00. Upon payment of the penalty, this proceeding is DISMISSED.

/s/ William B. Moran

William B. Moran

Administrative Law Judge

Distribution: (E-mail and Certified Mail)

Joseph M. Lake, Esq. and Cheryl L. Adams, Esq., Office of the Solicitor, U.S. Department of Labor, 90 7^th Street, Suite 3-700, San Francisco, CA 94103

Donald W. Tibbals, 1625 E. Newlands Drive, Fernley, Nevada, 89408