6.         Inspect the condition of the temporary struts and the top of the culvert to ensure the concentrated reactions do not result in localized failure of the culvert skin.

 

(Ex. S-6, at 3.) Kaufman further stated:

 

Signs of deformation changes might require discontinued use of the culvert. Replacement of the culvert should be considered. Though I have little knowledge of this type of stock pile access of aggregates, a flexible culvert is a wrong application. A rigid culvert would better handle the possibilities of unbalanced loading if a continued bottom stock pile access is desired.

 

(Ex. S-6, at 3.)

 

C.        MSHA’s Inspection of Reed Pit

 

            In July of 2009, Brad Breland, MSHA supervisory mine inspector of the Albany, Oregon, field office, was asked to select mines that MSHA officials would tour while in Oregon for a meeting. (Tr. 163:9–18.) MSHA Acting Deputy Administrator Neal Merrifield, MSHA Western District Manager Art Ellis, and Conference Litigation Officer John Pereza toured the Reed Pit mine. (Id.) The MSHA officials were accompanied on the tour by Knife River representatives, including Knife River Safety Director Lynn Gullickson, Reed Pit Superintendent Bill Wetmore, and Corporate Safety Manager Zack Knoop. (Tr. 164:19–165:7.) During the tour, Art Ellis viewed the dredge area and spoke with Zack Knoop regarding the need for handrails on the work boats and docks, as well as the need for adequate illumination for miners working after dark. (Tr. 164:19–25.) Knoop asked Ellis to speak with Bill Wetmore, the mine superintendent, regarding the matter. (Tr. 348:7–9.) Even though Ellis and Wetmore never had a conversation about the handrail and illumination issues, Knoop told Gullickson about his conversation with Ellis. (Tr. 347:4–10, 347:20–348:16.) After the tour concluded, Gullickson and Knoop met with Ellis and Merrifield to further discuss MSHA’s position regarding the requirement for handrails. (Tr. 348:17–350:15.) According to Gullickson, the conversation was rather heated. (Id.)

 

            A few weeks after the tour, Breland informed MSHA Inspector Brian Chaix that it was time to administer a “regular” inspection of Reed Pit and that he should follow up on the handrail and illumination concerns. (Tr. 23:5–20.) On July 21, 2009, Chaix began his inspection, which lasted several days. (Tr. 23:19–23, 27:9–12.) Initially, Breland was not present at the inspection; however, Breland returned to Reed Pit mine at the request of Production Superintendent Fred Sondermayer and met with Chaix to discuss the inspection and Kaufman’s October 2008 report. (Tr. 165:20–166:22.)

 

            Chaix cited several conditions as alleged violations of the Secretary’s mandatory safety standards, which are now at issue before me. On July 22, Chaix issued Citation No. 6479737 pursuant to section 104(a) of the Mine Act alleging that the work boats and dock at the mine site’s pond lacked handrails and toeboards, exposing miners to the risk of fatal drowning by falling into the pond after a slip or fall. (Ex. S-2, at 1.) Chaix alleged that the gravity of the citation was “significant and substantial” (“S&S”). (Id.) In accordance with MSHA policy, on July 28, Chaix divided Citation No. 6479737 and issued Citation Nos. 6479744 and 6479745 specifically covering the lack of handrails and toeboards on Knife River’s work boats. (Tr. 28:18–29:13; Ex. S-2, at 21–24.)

 

                                                                                    Additionally, Chaix issued a citation and an order under section 104(d)(1) of the Mine Act, alleging the existence of S&S violations that were the result of Knife River’s unwarrantable failure to comply with the Secretary’s mandatory health and safety standards. Chaix issued Citation No. 6479741 on July 27 asserting that the tunnel underneath the surge pile had structural failures and was not being maintained properly. (Id. at 10.) On July 28, Chaix issued Order No. 6479743, noting that five of the six posts in the wall alongside the crushing unit had rotted away, creating the risk of the wall falling on the miners. (Id. at 17.)

 

            After the issuance of the order, Knife River, on its own initiative (Tr. 73:14–16), put up caution tape around the wall in an attempt to comply with the order’s requirement to withdraw from the affected area (Tr. 173:3–174:8). Sondermayer showed the tape to Breland and stated that his miners could operate the crusher without entering the taped-off area. (Tr. 173:9–174:17, 581:12–582:23.) At the time, though, Breland was unaware the crusher operation booth was in the area subject to closure under the order. (Tr. 183:9–19.) On July 29, Chaix issued Citation No. 6479746 under section 104(a) of the Mine Act asserting that miners improperly entered the area subject to the order. (Ex. S-2, at 25.) No evidence suggests that the alleged violations before me had been previously cited or even raised into question during prior MSHA inspections in 2008 and 2009. (Tr. 93:19–107:24.)

 

IV. Principles of Law

 

A.        The Secretary’s Interpretation of Regulations

 

            To assess the validity of the Secretary’s interpretation of her regulations, the Commission explains as follows:

 

[w]here the language of a regulatory provision is clear, the terms of that provision must be enforced as they are written unless the regulator clearly intended the words to have a different meaning or unless such a meaning would lead to absurd results. See Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989). If, however, a standard is ambiguous, courts have deferred to the Secretary’s reasonable interpretation of the regulation. See Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994); accord Sec’y of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321 (D.C. Cir. 1990) (“agency’s interpretation of its own regulation is of ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’”) (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). The Secretary’s interpretation of her regulations is reasonable where it is “logically consistent with the language of the regulation[s] and . . . serves a permissible regulatory function.” General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citations omitted).

  

Lodestar Energy, Inc., 24 FMSHRC 689, 692 (July 2002). The required analysis asks whether the Secretary’s interpretation of the regulation is reasonable. Id. (citing Energy West Mining, 40 F.3d at 463). The Secretary’s interpretation must harmonize with and advance the objective of the statute it implements and not conflict with it. Lodestar Energy, 24 FMSHRC at 692 (quoting Emery Mining Corp. v. Sec’y of Labor, 744 F.2d 1411, 1414 (10th Cir. 1984)). An individual provision of the Secretary’s regulations should comport with the other sections of the regulations so as “to effectuate the Mine Act’s goal of promoting the safety and health of miners.” Consolidation Coal Co., 14 FMSHRC 956, 969 (June 1992) (citing Emery Mining, 744 F.2d at 1414).

 

B.        Fair Notice

 

            Regarding the minimum notice due that is due to the regulated community with regard to the Secretary’s enforcement position of a particular regulatory provision, the Commission states that

 

“[d]ue process . . . prevents . . . deference from validating the application of a regulation that fails to give fair warning of the conduct it prohibits or requires.” Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986). An agency’s interpretation may be “permissible” but nevertheless fail to provide the notice required under this principle of administrative law to support imposition of a civil sanction. [General Elec. Co. v. EPA, 53 F.3d 1324, 1333–34 (D.C. Cir. 1995)].

 

Island Creek Coal Co., 20 FMSHRC 14, 24 (Jan. 1998).

 

            Actual notice of the Secretary’s interpretation is not required. Id. Instead, the test for notice follows an objective standard that asks “‘whether a reasonably prudent person familiar with the mining industry and the protective purposes of the standard would have recognized the specific prohibition or requirement of the standard.’” Id. (quoting Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990)). A regulation cannot be “‘so incomplete, vague, indefinite or uncertain that men of common intelligence must necessarily guess at its meaning and differ as to its application.’” Alabama By-Products Corp., 4 FMSHRC 2128, 2129 (Dec. 1982) (quoting Connolly v. Gerald Construction Co., 269 U.S. 385, 391 (1926)). Under the Commission’s test, the reasonably prudent person, the operator, is “charged with knowledge of the ‘mining industry and the protective purposes of the standard.’” Island Creek Coal, 20 FMSHRC at 25 (quoting Ideal Cement, 12 FMSHRC at 2416).

 

            The analysis of the notice afforded to the operator is explicitly focused on the facts of that particular case. Alabama By-Products, 4 FMSHRC at 2129. In applying this test, the Administrative Law Judge should consider a “wide variety of factors,” such as “the text of [the] regulation, its placement in the overall regulatory scheme, its regulatory history, the consistency of the agency’s enforcement, and whether MSHA has published notices informing the regulated community with ascertainable certainty of its interpretation of the standard in question.” Lodestar Energy, 24 FMSHRC at 694–95 (citations omitted).

 

C.        Significant and Substantial

 

            An S&S violation is a violation “of such nature as could significantly and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. §814(d)(1). A violation is S&S “if, based on the particular facts surrounding 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). To establish an S&S violation, the Secretary 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. FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving the Mathies criteria). The Commission has further found that “an inspector’s judgment is an important element in an S&S determination.” Mathies, 6 FMSHRC at 5 (citing National Gypsum, 3 FMSHRC at 825–26); see also Buck Creek Coal, 52 F.3d at 135–36 (stating that ALJ did not abuse discretion in crediting opinion of experienced inspector). An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984)).

 

D.        Unwarrantable Failure

 

            The unwarrantable failure terminology is taken from section 104(d) of the Mine Act and refers to more serious conduct by an operator in connection with a violation. 30 U.S.C. § 814(d). In Emery Mining, the Commission determined that an unwarrantable failure is “aggravated conduct constituting more than ordinary negligence.” 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003–04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136 (approving the Commission’s unwarrantable failure test).

 

            Whether conduct is “aggravated” in the context of unwarrantable failure is determined by looking at all the facts and circumstances of each case to see if any aggravating factors exist, such as the length of time that the violation has existed, the extent of the violative condition, whether the operator has been placed on notice that greater efforts are necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation is obvious or poses a high degree of danger, and the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243–44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of each case must be examined to determine if an actor’s conduct is aggravated or whether mitigating circumstances exist. Consolidation Coal, 22 FMSHRC at 353.

 

 

V. Further Findings of Fact, Analysis, and Conclusions of Law

 

A.        Citation No. 6479737 – The Dock and Walkway

 

            1.         Violation

 

            Originally, Citation No. 6479737 was issued for alleged violations found on the work boats, the dock, and the walkway. However, Chaix modified the citation to cover only the docks and the walkway. (Tr. 28:18–29:13.) The modification resulted from a conclusion that the work boats “were different pieces of equipment” and Chaix “needed to issue separate citations for separate pieces of equipment” in accordance with MSHA policy. (Tr. 28:21–24.) Also, Citation No. 6479737 originally alleged a violation of the mandatory safety standard at 30 C.F.R. § 57.11002 but was amended to allege a violation of the mandatory safety standard at 30 C.F.R. § 56.11027 (Tr. 29:3–6), which requires, in pertinent part, that “[s]caffolds and working platforms shall be of substantial construction and provided with handrails and maintained in good condition. . . . Working platforms shall be provided with toeboards when necessary.” Chaix deemed the alleged violation to be S&S based on his reasoning that “the hazard was clear and present” and “the sort of injuries that [he] would expect to result from an accident . . . would be serious.” (Tr. 31:24–32:8, Ex. KR-1, at 1.) According to Chaix’s documentation in the citation, the dock lacked handrails and toeboards, “exposing miners to the risk of fatal drowning in the event of a slip or fall into water reported to be . . . approximately 20 feet deep.” (Ex. KR-1, at 1.)

 

            Knife River contends that no work is performed on the dock or walkway. (Tr. 337:10–14.) Additionally, it argues that the walkway has handrails, that life jackets are required, and that no accidents have occurred in the area, demonstrating the existence of minimal safety risks. (Tr. 337:15–338:1, 343:19–344:2, 558:8–11.) However, the evidence shows that miners assembled materials, as well as loaded and unloaded items from the dock. (Tr. 31:18–23, 395:25–396:2.) Also, miners traveled in this area at least twice each shift—to get to the dredge and back—and when making trips for materials. (Tr. 31:4–12.) MSHA Supervisor Breland personally observed two miners on the dock who did not properly secure their life jackets, such that had they fallen into the water, the life jackets could have either slipped off or choked the miners. (Tr. 178:24–179:25.)

 

            The Secretary’s and Knife River’s witnesses acknowledged that work activities regularly took place on the dock. Because miners periodically performed work-related tasks on the dock, it is a working platform that falls within the cited regulation at 30 C.F.R. § 56.11027. Under these circumstances, a reasonably prudent operator like Knife River should have recognized that the dock would be considered a “working platform.” Based on these facts, this citation does not involve a novel interpretation of § 56.11027. Even assuming, arguendo, that this proceeding involves a novel regulatory interpretation, Knife River had prior, explicit notice of the Secretary’s enforcement position of § 56.11027. During the visit by MSHA officials preceding Chaix’s inspection, MSHA Western District Manager Art Ellis informed Knife River’s officials about the need to install handrails.

 

            2.         Gravity and S&S 

 

            As for the question of whether this violation was S&S, Knife River’s violation of a mandatory safety standard establishes the first element of the Mathies test. As for the remaining elements of Mathies, the Secretary asserts that the discrete safety hazard is the danger of slipping and falling on the dock, potentially falling into the water and drowning. The evidence demonstrates that miners frequently worked on the dock, which lacked both handrails and toeboards. Knife River admitted that it regularly operates in rainy weather, a common occurrence in the area. (Tr. 570:23–571:3.) Given that miners worked frequently in this area, often in wet conditions, the lack of handrails and toeboards created the discrete safety hazard of slipping and falling. The handrails on the walkway to the dock did not obviate this risk.

 

            Given the dock’s proximity to water, the risk of slipping and falling created not only the possibility of a miner hitting an object from such a fall but also the possibility of a miner falling into the water, potentially incurring hypothermia or drowning. (Tr. 178:24–179:13.) Knife River’s lifejacket policy did not ameliorate the risk of injuries associated with falling into the water. Supervisory Mine Inspector Breland’s observations about the miners’ improper use of lifejackets demonstrate that miners do not always properly secure life jackets, and as a consequence, miners could be seriously injured or drown should they fall into the water.

 

            Besides Knife River’s lifejacket policy, another factor offered to mitigate the risks associated with this violation is the assertion that some of Knife River’s miners work in steel-toed boots. (Tr. 223:17–224:24.) Nevertheless, despite the rugged construction of such shoes, they do not guarantee stability, particularly if their soles are worn. (Tr. 225:1–15.) This possibility is why toeboards are required in slippery areas to increase surface traction. (Id.)

 

            In light of the slippery environment where this violation took place and the miners’ frequent exposure to that environment, I determine that the violation created the reasonably likely risk that the hazard would contribute to injuries associated with slipping, falling, and drowning. These injuries could be broken bones, or in the case of falling into the water with an improperly secured lifejacket, death by drowning. These types of injuries are more serious than mere bumps and bruises and are to be expected from the types of accidents associated with the hazards created by this violation. Significant injuries, including fatal ones, were reasonably likely as a result of this violation. I conclude that the gravity of this violation was appropriately assessed as a reasonable likelihood of fatal injuries. Accordingly, I determine that the violation created the reasonable likelihood that the expected injury would be of a reasonably serious nature. This violation created a discrete safety hazard that gave rise to the reasonable likelihood of an injury of a reasonably serious nature, establishing the remaining three elements of the Mathies test. I conclude that the violation was S&S.

 

 

            3.         Negligence

 

            The Secretary asserts that Knife River was moderately negligent in committing this violation. Here, Knife River required the use of life jackets in the area at issue. Unfortunately, as noted above, this policy did not adequately guard against the risks associated with working in this area. The evidence demonstrates that the improper use of lifejackets was not uncommon. Knife River could have taken the cost-effective measures of installing handrails and toeboards on the dock and significantly reduced the risks of working in this area. In light of the fact that Knife River took partial measures to address the risks in this area, I determine that Knife River’s violation constitutes moderate negligence. Citation No. 6479737 is hereby AFFIRMED, as written. 

 

            4.         Civil Penalty

 

            Under section 110(i) of the Mine Act, the Administrative Law Judge must consider six criteria in assessing a civil penalty: the operator’s history of previous violations, the appropriateness of the penalty relative to the size of the operator’s business, the operator’s negligence, the penalty’s effect on the operator’s ability to continue in business, the violation’s gravity, and the demonstrated good faith of the operator in attempting to achieve rapid compliance after notification of a violation. 30 U.S.C. § 820(i).

 

            Knife River’s history of violations over the fifteen months preceding this violation consists of merely nine non-S&S violations assessed at $100 each, none of which involve the standard breached in Citation No. 6479737. Nothing in the record suggests that the proposed penalty amount of $585 that the Secretary seeks in these proceedings is inappropriate for the size of Knife River’s business or that it would infringe on Knife River’s ability to remain in business. Moreover, once this citation was issued, nothing suggests that Knife River failed to make a good faith effort to achieve rapid compliance with the safety standard. Knife River was moderately negligent, and the violation exposed one miner to a reasonable risk of fatal injuries. In considering all of the facts and circumstances of this matter, I hereby assess a civil penalty of $585.

 

B.        Citation Nos. 6479744 and 6479745 – The Work Boats

 

            1.         Violation 

 

            Citation No. 6479744 was issued for the 40-horsepower work boat not having handrails or toeboards. The boat measured approximately 15-feet long and 10-feet wide, and according to Inspector Chaix “[t]his boat was observed to be in use by the dredge operator for transport to and from the dredge at least twice each shift.” (Ex. KR-10.) Citation No. 6479745 was issued for the 20-horsepower work boat not having handrails or toeboards. (Ex. KR-12.) The boat was approximately 14-feet long and 8-feet wide and according to Chaix was “used on an as-needed basis for transport and as a work platform.” (Id.) Like a platform, these work boats are flat with no sides or gunnels. (Ex. S-9.) Also, the boats have cranes built onto them. (Ex. S-9.) On the night of the inspection, the 40-horsepower boat was holding welding equipment. (Tr. 58:17–25; Ex. S-9.)

 

            Citation Nos. 6479744 and 6479745 allege violations of 30 C.F.R. § 50.11027, which, as stated above, require working platforms to be provided with handrails and toeboards. Both of the alleged violations were deemed S&S by Chaix based on his determination that miners were exposed to the risk of drowning. (Exs. KR-10, KR-12.) Knife River does not view the boats as work platforms. (Tr. 337:6–7.) However, uncontroverted testimony showed that miners work on the dredge and pipeline from the boats. (Tr. 58:17–59:9, 60:3–15.) Miners position the boats on the water where they must perform necessary work tasks, such as moving them against the pipeline so that they can use the welder, torches, and the crane. (Tr. 60:7–15.) Miners stand on the boats to bolt and maintain the pipeline that carries out the sand, rock, and slurry mixture. (Tr. 60:16–61:21.) Periodic work is conducted on the boats, and the work is not so infrequent as to preclude them from being regarded as working platforms. See Rohloff Sand & Gravel Co., 20 FMSHRC 868 (Aug. 1998) (ALJ Barbour) (finding a water pump platform floating on a pond to be a “working platform”). Accordingly, I find that these boats constitute working platforms.

 

            The analysis of Knife River’s notice regarding the application of § 56.11027 to its work boats parallels the analysis of § 56.11027’s application to the dock. See discussion supra Part IV.A.1. Knife River’s miners regularly performed work tasks from these boats. A reasonably prudent operator should have recognized that the boats would be considered “working platforms.” Even if the need to install handrails had been unclear, Knife River received notice from MSHA official Art Ellis prior to Chaix’s inspection that it needed to install handrails on the boats. Thus, I reject Knife River’s arguments to the contrary.

 

            2.         Gravity and S&S

 

            As articulated above, Knife River’s violations of a mandatory safety standard establishes the first element of the Mathies test for an S&S violation. Like the dock, the boats need handrails and toeboards to keep miners from slipping and falling either against other objects or into the water, notwithstanding any mere inconvenience these safeguards may pose. (Tr. 575:1–19, 576:23–577:11.) The heightened possibility of such falls caused by this violation constitutes a discrete safety hazard.

 

            The miners had relatively frequent exposure to the hazard in these violations. The fact that a miner had fallen off of a work boat in the past while on the job demonstrates the risks of working in this environment. (Tr. 63:6–10.) Work is conducted on the boats during inclement weather, such as rain, heightening the risk of slipping on a wet surface despite scoring on the boats’ surfaces designed to add foot traction. (Tr. 91:14–15, 151:2–5, 570:10–571:3.) Life jackets do not adequately ameliorate the varied hazards of this work environment, as they may not be properly secured. Moreover, besides drowning, a falling miner could catch hypothermia from exposure to the water or break a bone. As with the violation concerning the dock, the nature of this hazard exposes one miner to the risk of drowning, a potentially fatal injury. Given the nature of the hazard, the miners’ exposure to it, and the likelihood of injury, I conclude that the violation resulted in a discrete safety hazard associated with the reasonable likelihood of an injury of a reasonably serious nature. This conclusion establishes the remaining three elements of the Mathies test for an S&S violation. I determine that these violations were S&S.

 

            3.         Negligence

 

            These citations charged Knife River with moderate negligence. The general circumstances surrounding these violations are similar to the circumstances surrounding Knife River’s failure to provide adequate safety measures on the dock. In light of Knife River’s notice of these violations, the likelihood of injury, and the nature of the injury, I agree with the inspector’s determination that Knife River’s negligence was moderate. As a result, Citation Nos. 6479744 and 6479745 are hereby AFFIRMED.

 

            4.         Civil Penalty

 

            The Secretary seeks a civil penalty of $585 for each of these violations. I have considered Knife River’s history of few violations. I have determined that the gravity and negligence of Knife River’s violations in these two citations is the same as that committed in Citation No. 6479737, which involves the same safety standard as the one breached in Citation Nos. 6479744 and 6479745. Nothing suggests that Knife River failed to make a good faith effort to achieve rapid compliance with the safety standard once Citation Nos. 6479744 and 6479745 were issued. Accordingly, based on the six civil penalty criteria, I conclude that the proposed civil penalty for these violations is appropriate and hereby assess a civil penalty of $1,170.

 

C.        Citation No. 6479741

 

            1.         Additional Findings of Fact – The Experts’ Reports

 

            Citation No. 6479741 was issued by Inspector Chaix because the corrugated steel tunnel running underneath the cobble surge pile had “at least two radial seams” that were failing and “other significant deformations in the structure.” (Ex. KR-4, at 10.) One of the radial seams split near the first vertical support. (Ex. S-5, at 3.) The second radial seam split near the twelfth vertical support. (Ex. S-5, at 6.) The tunnel’s “other significant deformations” included buckling, areas where the roof is inverted (Tr. 246:22–247:2), and distortion of the tunnel’s vertical supports. Chaix felt the damage was “obvious” because the tunnel was visibly buckled, curved, kinked, and bulged. (Tr. 35:13–38:22, 44:9–45:4.)

 

            Two experts and one of Knife River’s engineers offered detailed testimony concerning the condition of the tunnel. Terence Taylor testified on behalf of the Secretary and was accepted as an expert in civil structural engineering. (Tr. 241:8–10.) H. John Head testified on behalf of Knife River and was accepted as an expert in mining engineering. (Tr. 472:7–14.) Dr. Keith Kaufman, author of Knife River’s 2008 report concerning the tunnel and Chief Engineer at Knife River’s prestress plant in Knife River’s western Oregon division, also testified on behalf of Knife River. (Tr. 404:19–405:4.)

 

            Taylor observed that the overall shape of the tunnel was skewed, meaning the tunnel was not a perfect ellipse or circle. (Tr. 250:8–14.) Part of the tunnel had widened out, but the expansion ranged between only seven and thirteen inches. (Tr. 250:15–24.) This expansion occurred in an area reinforced by the vertical posts. (Id.) Kaufman and both experts agreed that the tunnel’s circular design is integral to its function. (Tr. 290:20–25, 409:18–25, 476:8–15.) They also agreed that the cobble must be loaded evenly on the tunnel, as uneven loading could compromise its strength. (Tr. 261:10–19, 418:22–419:1, 477:10–22.) Kaufman asserted that cobble should not be removed from the tunnel in such a way as to unbalance its load. (Tr. 441:3–8; Ex. S-6, at 3.) Head agreed with this point and stressed that the tunnel should never be uncovered. (Tr. 480:6–9.)

 

            Taylor explained that a twenty percent deflection measurement indicates a risk of incipient collapse, which is the point when the tunnel will buckle (or bulge) and go into a reverse curvature shape. (Tr. 291:6–13.) Taylor relied upon two separate criteria to determine whether a particular part of the tunnel had failed: (1) a measurement of twenty percent deflection or (2) buckling. (Tr. 310:24–311:1.) Knife River engineer Kaufman acknowledged that a buckle constitutes a localized failure of the tunnel. (Tr. 450:4–6.) Here, the range of the tunnel’s deformation measurements equated to a six to eleven percent deflection of the pipe. (Tr. 251:2–3.) According to Taylor, the industry allows a deflection measurement of five percent. (Tr. 291:1–4.)

 

            Taylor documented six bulges in the tunnel. (Tr. 244:16–18.) He stated that the tunnel had permanently deflected in the bulging areas and would not return to its original shape. (Tr. 290:16–18.) Taylor described two bulges at the back of the tunnel and opined that the feeder frame had prevented the tunnel’s complete collapse in that section. (Tr. 245:7–13.) Two bulges were observed in the middle section of the tunnel. Head, Kaufman, and Taylor noted that the vertical supports in this area added redundant support to the tunnel. (Tr. Tr. 293:5–16, 413:3–12, 516:19–24.) Finally, Taylor described two bulges at the entrance of the tunnel, which he recognized as the ones shown in Kaufman’s report. (Tr. 246:12–17.)

 

            Taylor’s analysis corroborated the two seam splits identified by Chaix and recognized a third one located between the sixth and seventh vertical supports. (Tr. 247:15–21, 249:16–17.) Kaufman’s report identified only the seam split near the first vertical support. (Ex. S-6, at 2.) Kaufman recognized seam separation as a criterion indicating failure of the tunnel. (Tr. 450:7–9.)

 

            Taylor testified that the tunnel’s design did not give it a safety factor of two, the prudent design standard, and that in its current condition a variety of potential structural failures could occur, such as the sudden buckling of a portion of the tunnel’s roof. (Tr. 269:9–270:5.) The safety factor measures the ratio of the tunnel’s load bearing capacity over the load associated with the height of the cobble pile. (Tr. 501:3–8.) To compute the safety factor, Taylor estimated the load on the tunnel based on the cobble density measurement of one hundred pounds per cubic foot provided by Knife River. (Tr. 288:11–21.) He approached the calculation from “an engineering standpoint,” estimating the safety factor based on the maximum expected load, that is, the maximum estimated height of the cobble pile, which he stated to be thirty feet. (Tr. 288:11–289:25.) Head disagreed with Taylor’s calculations, criticizing the compaction value chosen by Taylor. (Tr. 503:23–505:14.) Head stated that although the exact value is unknown, it lies somewhere between the extremes of seventy percent—“almost no compaction”—and eighty five percent—“the good end” of the range. (Tr. 507:20–508:3.) Noting that Taylor used a compaction measurement of seventy percent, Head explained that a compaction factor of seventy-three percent would yield a safety factor of two. (Tr. 505:16–506:14.) In response to this criticism, Taylor explained his position that a compaction measurement of seventy percent “really [gave] the company the benefit of the doubt,” in light of how loose the cobble material surrounding the tunnel is. (Tr. 592:12–21.) Nevertheless, Taylor conceded that his analysis did not account for the tunnel in its present condition, i.e., with installation of supplemental supports and buckles in the tunnel’s structure. (Tr. 297:25–298:4.)

  

            As one of the steps taken to abate this citation, MSHA required Knife River to measure changes in the tunnel’s size. (Tr. 361:7–365:24.) Knife River measured the tunnel’s width in four locations and also measured the size of two of the larger bulges. (Tr. 362:23–363:6.) The monitoring data reveal that the measurements of these locations did not change in a sample of thirty-five days spanning from September 2009 to October 2009. (Ex. KR-26.) During that time, the cobble pile’s height varied from fifteen percent to eighty-five percent of its maximum. (Id.)

 

            Although the tunnel has been damaged for a number of years, the damage’s cause is unclear. (Tr. 135:20–136:6, 280:11–19.) The experts and Knife River’s engineer agree, however, that at least the two bulges located nearest to the tunnel’s entrance were created by equipment loading and unloading the surge pile. (Tr. 256:14–24, 258:9–15, 280:20–281:1, 432:13–22, 479:21–480:1.)

 

            Indeed, no expert could specifically trace the progression of the tunnel’s damage, and it was evident that the tunnel existed in mostly the same condition for a long period of time. The tunnel’s vertical supports were installed approximately fourteen years ago. (Tr. 253:25–254:4.) Kaufman and Head reported that they spoke with Knife River employees who stated that the tunnel has been in its present condition for at least fourteen years. (Tr. 408:3–25, 484:11–14.) Taylor noted that the bearing channel, which runs along the roof of the tunnel and connects to the vertical supports, had rotated at the site of one of the buckles, implying that the tunnel was damaged after the installation of the vertical supports. (Tr. 253:13–254:4.) Kaufman agreed that “a lot of [the] deformation occurred after the retrofit,” specifically identifying the area with the vertical supports. (Tr. 422:13–423:17.) He did state, though, that the bulges are not new developments. (Tr. 421:22–422:1.) Head concurred that none of the damage to the tunnel was new. (Tr. 484:15–21.) In contrast to Taylor and Kaufman, Head did not think that the tunnel had deformed after the installation of the vertical supports. (Ex. KR-28, at 5.)

 

             The substantial education and experience of Taylor, Kaufman, and Head allowed them to make expert conclusions about the tunnel’s present condition. (Tr. 237:1–241:7, 405:2–406:16, 465:18–472:5.) Taylor’s analysis carefully documented the condition of the tunnel, finding several locations where it had failed. In contrast, Kaufman visited the tunnel for fifteen minutes and neither walked its entire length nor noted all of its deformations. (Tr. 410:5–19.) Head explained that because some of the facts concerning the tunnel are unknown, he felt that a “subjective analysis” was more appropriate than a “detailed, quantitative analysis.” (Tr. 473:24–474:7.) Head acknowledged that he did not perform “a rigorous technical evaluation” and admitted that it was not “quite as complex as Mr. Taylor’s exam.” (Tr. 485:13–23.) Also, in discussing his conclusion that the tunnel is safe, Head stated his opinion that “[s]hort of complete inversion, [the] tunnel would not make me uncomfortable.” (Tr. 541:14–15.) The notion that a tunnel on the verge of collapse is acceptable is incongruent with the Mine Act’s goal of protecting miners’ safety. I grant more weight to Taylor’s analysis of the tunnel because it was more thorough than Kaufman’s and Head’s reports and because Taylor did not rely on premises contrary to the purpose of the Mine Act.

 

            2.         The Violation

 

            This citation alleges a violation of 30 C.F.R. § 56.14100(b), which states that “[d]efects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” Chaix deemed the alleged violation S&S and an unwarrantable failure to comply with a mandatory safety standard. He regarded the violation as unwarrantable because Knife River had notice of the defect through a written report emailed on October 26, 2008, by engineer Keith Kaufman to Gullickson, Dave Bull, Knife River Western Oregon Division President, and Steve Zurfluh, Superintendent of Reed Pit prior to Wetmore. (Tr. 44:25–45:12; Ex. S-6.) 

 

            Knife River objects to the application of § 56.14100, and argues, in essence, that the tunnel in question is not “equipment” within the ordinary meaning of the word as set forth in § 56.14100(b). Knife River further contends that even if, arguendo, the tunnel is considered “equipment,” the Secretary has not demonstrated that the structures at issue had “defects affecting safety” because no “mining” occurs within the tunnel; only a conveyor runs through it, and the tunnel is rarely occupied by miners.

 

            Equipment is defined, in pertinent part, as “1a: the equipping of a person or thing; b: the state of being equipped; 2a: the physical resources serving to equip a person or thing as (1): the implements (as machinery or tools) used in an operation or activity (2): all the fixed assets other than land and buildings of a business enterprise. . . .” Webster’s Third New International Dictionary, Unabridged 768 (2002). Accordingly, inasmuch as the testimony indicates that the tunnel is a fixed asset used in Knife River’s mining operation but is not a building, and is used in the transport of materials in Knife River’s mining operation, it comes within the definition of “equipment,” and thus is within the purview of § 56.14100(b).

 

            Additionally, reference to the regulations further illuminates the Secretary’s interpretation of her regulation. Part 56, Subpart M—“Machinery and Equipment,” regards large physical components of mining operations as equipment. Several sections of the subpart regulate conveyor systems, of which the tunnel is an integral part. E.g., 30 C.F.R. § 56.14109. The Secretary’s interpretation of § 56.14100 is consistent with 30 C.F.R. Part 56, which sets forth the safety and health standards governing surface metal and nonmetal mines, such as Reed Pit. I find that the Secretary’s definition is a reasonable interpretation, as the tunnel allows Knife River to carry on its aggregate mining activity. Therefore, the Secretary has established a violation. In light of this conclusion, a reasonably prudent operator should have recognized that this standard applied to its operation. Indeed, as noted by the Secretary (Sec’y Br. 61), Knife River admitted that it initiated Kauman’s report in light of MSHA’s enforcement action against a structure at another one of its facilties, implying that it was well aware equipment like the tunnel is subject to MSHA’s regulatory authority.

 

            3.         Gravity and S&S

 

            Having established a violation of a mandatory safety standard, the first element of the Mathies test, I now turn to the questions of gravity and whether this violation was S&S. The tunnel deformations resulted in a discrete safety hazard. The buckling and deformations of the tunnel could easily contribute to the potential collapse of the tunnel. Because the damage has been present for a significant period of time, continued mining operations, with no additional remedial measures, could contribute to increased deterioration. Assuming continued mining operations from the issuance of the citation, further deterioration of the tunnel’s structure was reasonably likely, creating a discrete hazard that could contribute to a miner’s injury. Significantly, no accurate means exist to predict what circumstances might cause the tunnel to collapse or even when a collapse might occur. (Tr. 298:20–25.) Miners must regularly work in this environment, and to perform maintenance work, miners access the entire tunnel. (Tr. 430:19–21.) At least one miner is required to spend some time in the tunnel every day as part of his job. (Tr. 484:4–6.) A tunnel cave-in with miners inside of it would result in a reasonably serious, if not fatal, injury. Accordingly, the hazard associated with this violation was properly cited as a reasonably likely risk of fatal injury to one miner. The violation created a discrete safety hazard associated with the reasonable likelihood of a reasonably serious injury. I conclude that this violation was S&S.    

 

            4.         Negligence and Unwarrantable Failure

 

In this case, Knife River initiated the report on its own accord to confirm the tunnel’s safety in light of MSHA’s concerns of a structure at another one of its mines. Moreover, Knife River followed several of Kaufman’s recommendations. Its employees visually inspected the tunnel’s deformations and temporary struts on a daily basis, recording their observations of the struts, as recommended by the report. (Tr. 381:20–382:2, 383:14–23.) Most importantly, Knife River ensured that it evenly loaded the tunnel in accordance with Kaufman’s recommendation. (Tr. 382:11–383:13.) Indeed, all of the experts agreed that evenly loading the tunnel was crucial to preserving its structural integrity. Nonetheless, Knife River did not implement all of Kaufman’s recommendations. It did not install a sump pump to remove water from the tunnel. (Tr. 381:9–15.) Most significantly, Knife River did not install horizontal control points in the tunnel in order to take periodic measurements of the tunnel’s geometry. (Tr. 381:16–19.)

 

            When the violation was cited, the tunnel’s condition was relatively static. Only some of the damage had occurred since the installation of the tunnel’s vertical supports approximately fourteen years ago. All of the experts agreed that the vertical supports supplemented the tunnel’s strength. Moreover, Taylor’s albeit thorough analysis of the tunnel did not account for these supports. This fact softens Taylor’s criticism of Knife River that the tunnel, as originally designed, was inadequate to its use. The present stability of the tunnel given Knife River’s own observations of it and the tunnel’s 2009 size measurements under MSHA’s direction suggest that the tunnel is not in immediate danger of collapse. At the same time, although the tunnel conditions remained static, none of the experts could provide calculations that accurately established its safety factor. This unknown risk factor posed a risk to miners’ safety that Knife River failed to adequately address.

 

            Here, Knife River did take some steps to investigate the condition of its damaged tunnel and implemented measures to ensure that it did not pose a danger to its miners. The relatively static condition of the tunnel did not give Knife River reason to think that its tunnel posed an immediate threat to its miners. At the same time, Knife River failed to take significant, yet cost-effective, steps to mitigate the dangers posed by the tunnel, including researching its original design plan and measuring its size. Furthermore, relying on visual observations, instead of taking measurements of horizontal control points, is no way to ensure equipment such as this tunnel, which had sustained visible damage long ago, was in a condition that it would not fail. Based on these considerations, I conclude that Knife River’s violation evinced a high degree of negligence.

            None of the evidence suggests that in using the tunnel Knife River engaged in aggravated conduct constituting more than ordinary negligence. Knife River took steps to ensure that its miners would not be exposed to the tunnel’s collapse. Knife River could have taken further simple steps to ameliorate the hazards associated with this tunnel. However, it should not be penalized for its self-directed efforts to investigate the tunnel and its attempt to address the tunnel’s compromised structure. I conclude that this violation did not constitute an aggravated failure to adhere to a mandatory safety standard.

 

            Accordingly, Citation No. 6479741 is hereby MODIFIED to a section 104(a) citation.

 

            5.         Civil Penalty

 

            The Secretary seeks a civil penalty of $2,000 for this violation. Here, nothing suggests that Knife River failed to make a good faith effort to achieve rapid compliance after this citation was issued. However, I have determined that this citation still involved Knife River’s high negligence with regard to a hazard involving the reasonably likely risk of fatal injuries to one miner. Therefore, a civil penalty of $1,000 is appropriate for this violation.

D.        Order No. 6479743

 

            1.         Violation 

 

            Both Order No. 6479743, issued July 28, 2009, and Citation No. 6479746, issued July 29, 2009, involve a wooden barrier wall. The wall is 100-feet long by 28-feet high and was built to suppress noise and dust. (Tr. 370:1–3, Ex. S-12, at 8.) It originally surrounded the entire crusher, but some sections had been removed. (Tr. 370:5–12, Ex. S-12, at 8.) Order No. 6479743 was issued based on Inspector Chaix’s assertions that five of the six support columns in the wall were significantly rotted at the time of the inspection, and the remaining column was only slightly less rotted. (Ex. KR-8.) Chaix testified that daylight was visible beneath the posts. (Tr. 46:22–24, Ex. S-8.) Also, the wall was attached to the crusher operator station and to a workshop. (Tr. 318:7–15; 520:1–4; Ex. S-12, at 8.) Chaix determined that miners working and traveling in the area would be exposed to the hazard of the wall moving abruptly or collapsing altogether. (Tr. 49:23–50:21, 52:20–23.)

 

            Order No. 6479743 was issued as a section 104(d)(1) order for an alleged violation of 30 C.F.R. § 56.14100(b), which requires that “[d]efects on any equipment, machinery, and tools that affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” Chaix found the alleged violation to be S&S and an unwarrantable failure, stating that “[m]ine management engaged in aggravated conduct constituting higher than ordinary negligence in that they were aware of the condition of the wall and the need for it to be removed, but failed to act to protect their miners by ensuring the correction of the condition prior assigning miners to continue to work and travel in the area.” (Ex. KR-8.) Chaix’s allegations of “aggravated conduct” stem from the “obvious” poor condition of the wall and the fact that Reed Pit management allowed miners to travel to and from the crusher operator station located under the wall. (Tr. 53:12–24.) Terence Taylor testified that due to the rotted columns, it would not have the capacity to resist the significant wind loading expected for that part of Oregon—eighty-five miles per hour. (Tr. 272:17–273:1.) The order required Knife River employees to be withdrawn from the north wall along the crusher and the area beneath the wall on both sides “for a distance equal to its height.” (Ex. KR-8.) Citation No. 6479746 was issued for an alleged failure by Knife River to follow the withdrawal order. (Ex. KR-14.)

 

            Knife River contends that the wall is not within any ordinary definition of “equipment, machinery, and tools.” While Knife River acknowledged that it was aware of the condition of the wall and was in the process of taking it down, it had been almost a year since Knife River worked on removing the wall. (Tr. 56:14–23, 565:19–566:1, 572:13–23.) Also, the evidence showed that the wall still blocks noise and dust—intentionally or not. (Tr. 48:13–49:22, 131:20–22, 370:1–3; Ex. S-12, at 8.) I find that the wall served as a physical resource, equipping Knife River in its mine operation in that the wall still blocks dust and noise. See discussion supra Part IV.C (analyzing the meaning of the term equipment). Reference to Subpart M of 30 C.F.R. Part 56 reveals that the regulations regard items like this barrier wall as “equipment.” Section 56.14110 requires the construction of “guards, shields, or other devices that provide protection against . . . flying or falling materials.” Knife River constructed the wall, in part, to block the dust generated by the crusher unit. Therefore, I find that the Secretary has reasonably interpreted the term “equipment” to include the wall and has therefore established a violation.