FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 2, 2012

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

BLACK BEAUTY COAL COMPANY

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Docket No. LAKE 2008-477

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners

DECISION

BY: Cohen and Nakamura, Commissioners

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”). Black Beauty Coal Company (“Black Beauty”) contested a citation and two orders that were issued by a Department of Labor Mine Safety and Health Administration (“MSHA”) inspector after he observed alleged failures to provide sufficient protection against overtravel at three discrete areas of Black Beauty’s mine. 32 FMSHRC 356 (Mar. 2010) (ALJ). Administrative Law Judge Margaret Miller affirmed the citation and orders as significant and substantial (“S&S”) violations that were also attributable to the operator’s unwarrantable failure to comply with the cited standards. Id. Black Beauty filed a petition for discretionary review, which was granted by the Commission.

For the reasons that follow, we affirm in part, and reverse and remand in part.

Citation No. 6671134

A. Factual and Procedural Background

On September 11, 2007, MSHA Inspector Vernon Stumbo began a regular inspection of the Somerville Central Mine, a surface coal mine located near Gibson, Indiana. Id. at 356-57. Stumbo inspected a bench which measured 180 feet to 200 feet wide and was elevated approximately 50 feet above the pit floor. Id. at 358; Tr. 29; Gov. Ex. 4. At the time of the inspection, Black Beauty was in the process of moving a dragline across the bench. Stip. 12. The berms on the bench had been lowered in order to accommodate the dragline’s boom. 32 FMSHRC at 358. During the move, the dragline suffered electrical problems, which caused it to come to a stop on the bench. Id. The dragline is not a rubber-tired vehicle; instead, “shoes” lift and move the machine in increments of eight feet. 32 FMSHRC at 358; Tr. 65-67. As this process is repeated, the dragline can travel 450 to 500 feet per hour. Tr. 66-67. Black Beauty normally moves the dragline to a new location in the mine once every seven to ten days. Tr. 79.

While inspecting the bench, Stumbo observed a service truck near the dragline. 32 FMSHRC at 358. Two miners had driven the service truck along the bench to the dragline so that welding maintenance could be performed while the dragline was idled. Tr. 33, 93; Gov. Ex. 4. Stumbo issued Citation No. 6671134 under section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), alleging that the operator failed to provide berms or guards on the outer bank of an elevated roadway as required by 30 C.F.R. § 77.1605(k). Section 77.1605(k) provides that “berms or guards shall be provided on the outer bank of elevated roadways.” In the citation, Stumbo noted that “[t]he dragline bench travel road [did] not have a berm for a distance of approximately 2/10 of a mile where a service truck . . . had traveled within 18' of the outer banks of a bench.” Gov. Ex. 4.

The judge determined that “once rubber-tired equipment begins operating on the bench, especially within close proximity to the edge . . . the bench becomes a roadway.” 32 FMSHRC at 359 (citing El Paso Rock Quarries, Inc., 3 FMSHRC 35, 36 (Jan. 1981)). She affirmed the citation, concluding that the elevated roadway did not contain adequate berms as required by section 77.1605(k). Id. at 358-59. She stated that a reasonably prudent person familiar with the facts would have recognized that the safety standard required the bench to contain a berm that was at least mid-axle height of the service truck which traveled it. Id. at 359. The judge further concluded that the violation was S&S and attributable to the operator’s unwarrantable failure to comply with the cited standard. Id. at 361-62.

B. Disposition

1. The bench was a “roadway” pursuant to section 77.1605(k).

Black Beauty asserts that the judge misapplied the standard when she determined that the bench was a “roadway” and governed by section 77.1605(k). It contends that a roadway commonly involves vehicle travel as part of the normal mining routine. While the operator acknowledges that the bench was a roadway before the dragline move, it states that at the time of the move it was not a roadway. See Oral Arg. Tr. 6. The Secretary agrees that the judge’s reasoning was erroneous; however, she maintains that the judge’s error was harmless.

We conclude that, in finding that the bench was a roadway simply because a rubber-tired vehicle began operating on it, the judge did not use the proper inquiry. The Commission has found that an elevated area, such as a bench, is a roadway where a vehicle commonly travels its surface during the normal mining routine. See Capitol Aggregates, Inc., 4 FMSHRC 846, 847 (May 1982); Burgess Mining and Constr. Corp., 3 FMSHRC 296 (Feb. 1981); El Paso Rock Quarries, Inc., 3 FMSHRC at 36. For instance, in Burgess Mining, 3 FMSHRC at 296, the Commission concluded that because a bridge was commonly traveled by trucks during the normal mining routine, it was a roadway governed by section 77.1605(k). In Capitol Aggregates, 4 FMSHRC at 846-47, a ramp which was commonly traveled by a front end loader was found to be a roadway. Thus, the presence of a rubber-tired vehicle on the bench, by itself, did not mean that the bench was a “roadway.”

Nevertheless, we conclude that the bench here was a “roadway” at the time that the inspector issued the citation and that the judge’s error was harmless. The record evidence demonstrates that vehicles commonly traveled over the surface of the bench during the normal mining routine, including during a routine dragline move. Tr. 79, 93. Black Beauty acknowledged that haulage trucks traveled the area before the dragline move and that after the move the operator planned to resume regular traffic. Oral Arg. Tr. 6 (“Prior to the move there is, in fact, to-and-from haulage across that bench; and it is a roadway.”); Oral Arg. Tr. 23-24.

Dragline moves were common at the mine, occurring every seven to ten days. Tr. 79. During a dragline move, it was routine for a rubber-tired backhoe to accompany the dragline and carry its cable. Tr. 79. Therefore, even though the bench was closed to traffic by haulage trucks, the nature of the move necessitated that the bench continue to be used by a rubber-tired vehicle. Stated another way, the dragline move did not alter the bench’s status as a roadway for rubber-tired vehicles. Additionally, it was common for a truck to travel on a bench if the dragline were to require service during a move. Tr. 93. Thus, the service truck’s use of the bench in this instance illustrates that the character of the bench was unchanged. Therefore, the evidence demonstrates that the bench remained a “roadway” during the dragline move.

Our colleague, Commissioner Duffy, claims that our approach is impractical, as berms cannot be maintained during a dragline move at the height sufficient to service a dragline (that is, to permit service trucks in the area) because existing berms must be lowered to accommodate the dragline. Slip op. at 23-24. His point is undercut by Black Beauty’s contention that adequate berms were present (in the form of a remnant berm) during the dragline move. 32 FMSHRC at 359, citing BB Trial Br. at 10-11; see also BB Trial Br. at 4 (“[T]he remnant berm that remained behind the dragline was the same height as the whole tire of the MSHA inspection party’s vehicle . . . [t]his would have equated with at least half the height of the tire of the service truck, i.e., axle height”). Terry Traylor, Black Beauty’s operations manager, testified that “there’s normally a five-foot [berm] . . . we lower that . . . down to three feet. We do that to have enough maneuvering room for the machine.” Tr. 68. Significantly, at oral argument, Black Beauty’s counsel was asked whether the operator contended that during the move it was unable to maintain berms at a height that would meet the mid-axle standard. Oral Arg. Tr. at 7. He replied that the remnant berms “would have been adequate for the service truck.” Oral Arg. Tr. at 8. Consequently, our colleague’s fears appear to be unfounded.

2. The judge’s conclusion that a violation occurred should be vacated and remanded.

Black Beauty also asserts that the judge erred in her analysis of the violation because her rationale is inconsistent with the inspector’s testimony on which she relied. BB Br. at 12-13. We agree.

The record contradicts the judge’s statement that the parties “[did] not dispute that only a remnant berm existed for the two-tenths of a mile from the bottom of the road to the area where the service truck was located.” 32 FMSHRC at 358. Black Beauty asserted that the bench contained a “remnant berm” that was “mid-axle height of the largest rubber-tired vehicle present.” BB Trial Br. at 10-11. However, the Secretary in her post-hearing brief repeatedly urged the judge to find that the dragline bench contained no berms. S. Tr. Br. at 3 (No. 7 citing Tr. 24, 29), 4 (No. 13 citing Tr. 31), 10 (citing Tr. 29), and 11. Stumbo testified that he observed “no berms” or “zero berms” on the section of the bench where the service truck had traveled. Tr. 29, 31; Gov. Ex. 4; BB Ex. 1. Nowhere in Stumbo’s testimony or notes is there any reference to a “remnant berm” or anything similar. Tr. 25-59; Gov. Ex. 5 at 3-5. Thus, the judge’s statement that the parties did not dispute the existence of remnant berms is patently incorrect because the Secretary denied the existence of remnant berms. The judge did not resolve the question whether there was a remnant berm or no berm at all. Consequently, we vacate and remand the judge’s decision to affirm the citation so that the judge can resolve the conflicts in testimony and explain the basis for her findings. See Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222-23 (June 1994) (holding that a judge must analyze and weigh all probative record evidence, make appropriate findings, and explain the reasons for his or her decision).

Although, the judge credited the inspector, who testified that there were “no berms,” she reached a different conclusion – that there were “inadequate berms.” 32 FMSHRC at 359. If, on remand, the judge determines that a remnant berm did exist, she must again determine whether it was adequate. The record establishes that no large haul trucks traveled the roadway during a dragline move. The typical rubber-tired vehicles which use the roadway during a dragline move are a backhoe and service trucks such as the one that was present on the day of the inspection. Tr. 72-73, 79; BB Ex. 3. Traylor testified that he had observed a berm which existed all along the bench and which arose to at least mid-axle height of the service vehicle. Tr. 73-74, 82. The judge did not make a determination whether Traylor’s testimony was credible. If she concludes that there was a remnant berm, she should address this aspect of his testimony.

If the judge should conclude that the mandatory standard was violated, she should also reconsider her S&S and unwarrantable failure analysis in accordance with her findings on remand. The S&S and unwarrantable failure analysis should conform to the guidance we have provided with respect to the other violations herein.

II.

Order No. 6671135

A. Factual and Procedural Background

Inspector Stumbo continued his September 11 inspection by visiting a recently built road which connected a bench to the upper level of the pit. 32 FMSHRC 363. Black Beauty constructed it to transport a drill rig. Stip. 17. The road was approximately 110 to 120 feet in length and inclined at a 30% grade. 32 FMSHRC at 363. A wall was located to its right, and on the opposite side was a ledge with a 50-foot drop to the level below. Id.; Tr. 124. Stumbo observed that a 75-foot long section of the road lacked a berm. Tr. 99, 107, Gov. Ex. 6. Stumbo also observed truck tire tracks on the road, which he learned were left by drill foreman Andrew Alano. 32 FMSHRC at 363, Tr. 99-100. As a result of his observations, Stumbo issued section 104(d)(1) Order No. 6671135, which alleged a violation of 30 C.F.R. § 77.1605(k).

The judge concluded that the evidence demonstrated that “inadequate berms existed for part of the drill road.” 32 FMSHRC at 363. She relied on Stumbo’s testimony and on her own examination of the photograph marked as Black Beauty Ex. No. 6. Id. at 363-64. In addition, the judge concluded that the violation was significant and substantial, and attributable to the operator’s unwarrantable failure to comply with the cited standard. Id. at 364-65.

B. Disposition

1. Substantial evidence supports the judge’s decision to affirm the order.

Black Beauty contends that substantial evidence does not support the judge’s finding of a violation. In particular, the operator contends that the judge erred in relying on Stumbo’s testimony because it differs from the testimony of its own witnesses.

We conclude that substantial evidence supports the judge’s conclusion. Stumbo testified that part of the travel road lacked a berm. Tr. 99, 100-01, 106, 149, 152-53. In addition, the judge credited Stumbo’s testimony that the photograph marked as Black Beauty Ex. No. 6 depicted the road as lacking adequate berms. 32 FMSHRC 364. It was within the judge’s discretion to credit Stumbo’s description of the photograph, despite conflicting testimony from other witnesses. The Commission has held that a judge’s credibility determinations are entitled to great weight and may not be overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). Furthermore, the Commission has recognized that, because the judge “has the opportunity to hear the testimony and view the witnesses[,] he is ordinarily in the best position to make a credibility determination.” In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984), aff’d sub nom. Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998). Moreover, the judge examined the photograph herself and found that it depicted a road which lacked adequate berms. 32 FMSHRC at 363-64. Accordingly, substantial evidence supports the judge’s determination that a violation occurred.

2. Substantial evidence supports the judge’s S&S designation.

Black Beauty asserts that the judge erred in affirming the order’s S&S designation. The Secretary contends that any error by the judge was harmless.

We conclude that the judge correctly applied the S&S test, and that her findings are supported by substantial evidence. The S&S terminology is taken from section 104(d) of the Mine Act, 30 U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if, based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to by the violation will result in an injury or illness of a reasonably serious

nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission further explained:

In 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.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 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 Mathies criteria).

An evaluation of the reasonable likelihood of injury should be made assuming continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The Commission has emphasized that it is the contribution of a violation to the cause and effect of a hazard that must be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). The evaluation is made in consideration of the length of time that the violative condition existed prior to the citation and the time it would have existed if normal mining operations had continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a particular violation is S&S must be based on the particular facts surrounding the violation. Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987).

As to the first element of Mathies, the judge found, and we have affirmed, that Black Beauty violated section 77.1605(k), a mandatory safety standard under the Act. Thus, we proceed under the second element of Mathies to consider whether the violation contributed to a discrete safety hazard.

a. The judge correctly applied the second element of Mathies, and substantial evidence supports her conclusions.

We conclude that the judge accurately articulated the relevant hazard as “the danger of a vehicle veering off the elevated roadway and rolling, or falling, down the spoil incline.” 32 FMSHRC at 364. Her description correctly accounts for the dangerous situation that the mandatory safety standard anticipates, i.e., loss of vehicle control near the edge of the road. We have recently upheld analogous descriptions of hazards in the context of the Mathies test. See Cumberland Coal Res., LP, 33 FMSHRC 2357, 2366 (Oct. 2011) appeal docketed, No. 11-1464 (D.C. Cir. Nov. 29, 2011); Musser Engineering, Inc., and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”). In Cumberland, we ruled that the operator’s failure to equip escapeways with lifelines that can be used effectively in an evacuation contributed to a hazard of “miners not escaping quickly in an emergency with attendant increased risk of injuries due to a delay in escape.” 33 FMSHRC at 2361. In PBS, we affirmed that the production of an inaccurate mine map contributed to “the danger of breakthrough to an adjacent mine and resulting inundation.” 32 FMSHRC at 1280.

Additionally, we conclude under the second element in Mathies that substantial evidence supports the judge’s determination that the lack of berms contributed to the hazard in this case. 32 FMSHRC at 364. The road entirely lacked a berm for about 75 feet, which was the majority of its length. Id. at 363. The edge of the road was described as “horizontal, straight out” with a 50-foot drop to the level below. Id. In addition, the roadway was inclined at a steep 30 percent

angle. Id.; Tr. 108, 112-13. It is clear that the lack of a berm under these particular circumstances contributed to the hazard of a vehicle veering off the elevated roadway.

b. The judge correctly applied the third and fourth elements, and substantial evidence supports her conclusions.

The judge concluded that, if a truck were to veer off the edge of the road, it is reasonably likely that the driver would receive an injury. 32 FMSHRC at 364. Black Beauty contends that the evidence does not support a conclusion that an incident of overtravel was reasonably likely to occur during continuing mining operations. However, the relevant inquiry in the present case is not whether the lack of berms is reasonably likely to cause injury. Instead it is whether the hazard in question – a vehicle veering off the road because of a lack of berms – would be reasonably likely to cause injury.

This analysis is consistent with recent Commission case law involving S&S determinations. In PBS, we stated that “[t]he test under the third element is whether there is a reasonable likelihood that the hazard contributed to by the violation, i.e., the danger of breakthrough and resulting inundation, will cause injury.” 32 FMSHRC at 1281. We specifically instructed that the “Secretary need not prove a reasonable likelihood that the violation itself will cause injury.” Id. In Cumberland, we reaffirmed this principle and concluded that the judge erred because he should “have determined whether there was a

reasonable likelihood that the relevant hazard – miners not being able to escape quickly in an emergency situation – would cause injury.” 33 FMSHRC at 2366.

We conclude that substantial evidence supports the judge’s conclusion that if a vehicle veered off the road, it is reasonably likely to result in injury. The evidence clearly shows that the road was steeply inclined and that a truck overtraveling the side of the road would fall 50 feet. Tr. 99, 101, 107-08.

Black Beauty additionally suggests that the existence of a second berm on the bench at the base of the travel road would have prevented a truck from overtraveling the entire bench and falling 50 feet to the level below. However, we conclude that if a truck were to overtravel the road and crash into the bench’s berm instead of falling off the entire bench, it remains reasonably likely that any miners traveling in the truck would receive injuries.

Finally, the judge also determined that each injury would be of a reasonably serious nature. 32 FMSHRC at 364. Black Beauty did not dispute this conclusion. Accordingly, we conclude that the fourth element of Mathies is satisfied.

Commissioners Duffy and Young assert that the judge’s S&S finding should be vacated because of the absence of “evidence that any vehicle that used the road went near its edge, or had a reason to go near the edge, or may have been operated in a fashion that would have resulted in its going over the edge (Tr. 144).” Slip op. at 25. However, the analysis of whether a particular violation is S&S also involves looking forward to events which may occur during continuing normal mining operations. U.S. Steel, 7 FMSHRC at 1130; Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989); Elk Run, 27 FMSHRC at 905-06.

c. The inclusion of irrelevant evidence in the S&S analysis was harmless error by the judge.

Black Beauty asserts that the judge’s S&S analysis was confused because she considered evidence relating to its negligence within her S&S findings. Specifically, when setting forth her S&S analysis, the judge stated that Andrew Alano, a supervisor, presented an “extremely poor example” to rank and file miners, in part, because his testimony included a “lax explanation as to why he traveled the road.” 32 FMSHRC at 364. Black Beauty states that Alano’s testimony as to why he traveled the road is irrelevant to the Mathies test.

We agree. This testimony by Alano reflects the degree of negligence exhibited by the operator. The finding was extraneous to the S&S analysis, but we believe that its inclusion was harmless error. There is no indication that the judge’s reference to Alano’s testimony actually affected the way in which she applied the Mathies test. Substantial evidence remains to support the S&S designation. Accordingly, we affirm the judge’s conclusion.

3. The judge’s unwarrantable failure determination is vacated and remanded.

The judge concluded that Black Beauty’s violation of the mandatory standard was the result of an unwarrantable failure to comply. Id. at 365. Black Beauty contends that the judge’s analysis contains fatal errors. In particular, it states that the judge erred in finding that it was on notice that greater efforts were necessary and in ignoring evidence that a manager had a good-faith reasonable belief that the road was adequately bermed. The Secretary asserts that the judge’s determination is correct and is supported by substantial evidence in the record.

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 2001. 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, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995).

The Commission has recognized that whether conduct is “aggravated” in the context of unwarrantable failure is determined by considering the facts and circumstances of each case to determine if any aggravating or mitigating circumstances exist. Aggravating factors include 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 were necessary for compliance, the operator’s efforts in abating the violative condition, whether the violation was obvious or posed 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) (“Consol”); 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). 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. Consol, 22 FMSHRC at 353.

We conclude that the judge’s analysis contained multiple errors. First, she relied on a finding that lacked substantial evidentiary support. The judge stated that she “question[ed] whether the road was truly a ‘temporary’ road.” 32 FMSHRC at 365. This statement contradicts the record evidence. The temporary status of the road was undisputed. The parties stipulated that the road was built on the day of the inspection. Stip. 16. Furthermore, the evidence demonstrates that Black Beauty intended to eliminate the road within a few days. Chad Wirthwein, Black Beauty’s safety manager, testified that the road would be destroyed in “[one] to three days.” Tr. 134. Alano, a supervisor for Black Beauty, testified that the road would have probably been destroyed the next morning. Tr. 145. Stumbo testified that “[he] learned that it’s a temporary road.” Tr. 113. We conclude that the temporary status of the road is relevant to both the length of time the violation existed and the degree of danger posed by the violation. See Consol, 22 FMSHRC at 353.

The judge’s second error was the failure to consider relevant, potentially mitigating evidence. The judge concluded that “management displayed a certain level of indifference to the requirements of the standard when one of its own foremen utilized the road as a shortcut to travel in his pickup truck.” 32 FMSHRC at 365. She failed to consider, however, that Alano testified that he found the road to contain adequate berms when he traveled it. Tr. 143. Although it is established that a berm was lacking on a large part of the road, the roadway was adequately protected at the top, where Alano entered it. Tr. 106, 143; BB Ex. 8. It may be that from that point, Alano could not see that the berm was inadequate further down the roadway. If so, his action may have been in the nature of a reasonable, good faith mistake, which would be a mitigating factor. Wyoming Fuel Co., 16 FMSHRC 1618, 1628 (Aug. 1994). On remand, the judge should consider the impact of this testimony when determining if the operator had knowledge of the existence of the violation.

With respect to the issue of notice that greater efforts were necessary for compliance, we conclude that the judge’s decision is supported by substantial evidence. Specifically, the judge concluded that “[t]he mine has a recent history of berm violations, and was on high notice of the need to comply.” Id. at 365.

Black Beauty alleges that the judge erred in relying on the past citations, in part, because Stumbo was not familiar with the details of the inspection which led to their issuance. We disagree. The circumstances under which past violations may be considered by a judge in determining whether an operator’s conduct demonstrated aggravated conduct are not limited in this manner. See Peabody Coal Co., 14 FMSHRC 1258, 1263 (Aug. 1992). Repeated similar violations may be relevant to an unwarrantable failure determination to the extent that they serve to put an operator on notice that greater efforts are necessary for compliance with a standard. Enlow Fork Mining Co., 19 FMSHRC 5, 11 (Jan. 1997) (citing Peabody, 14 FMSHRC at 1263-64). Moreover, substantial evidence supports the judge’s determination. Five days earlier the operator had been issued two citations alleging violations of section 77.1605. Gov. Exs. 2-3.

Accordingly, the judge’s unwarrantable failure designation is vacated and remanded. On remand, the judge should consider evidence that the road was temporary, and also consider Alano’s use of the road in light of conditions as he found them when he entered the road.

III.

Order No. 6671177

A. Factual and Procedural Background

On September 27, 2007, Stumbo returned to the mine and discovered that Black Beauty was operating three haul trucks to transport material from a shovel to a dumpsite. 32 FMSHRC at 366. Stumbo observed that a section of a dumpsite entirely lacked the protection of a berm. Id. at 367; Tr. 169. Stumbo also observed that another section of the dumpsite contained a 45-inch berm which he considered to be inadequate, because the mid-axle height of the haul trucks was 66 inches. 32 FMSHRC at 367; Tr. 170. Stumbo halted a truck that was in the process of backing up. 32 FMSHRC at 367; Tr. 163. He observed that there was not a miner acting as a spotter at the dumpsite. 32 FMSHRC at 367. As a result of his observations, Stumbo issued Order No. 6671177, alleging a violation of 30 C.F.R. § 77.1605(k).

On November 23, 2009, prior to the hearing, the Secretary filed a motion to amend the petition and to plead, in the alternative, that Black Beauty violated the safety standard in 30 C.F.R. § 77.1605(l). It provides that “[b]erms, bumper blocks, safety hooks, or similar means

shall be provided to prevent overtravel and overturning at dumping locations.” Black Beauty filed a motion in opposition, alleging that the amendment of the order would be prejudicial.

The judge did not rule on the motion at the hearing, but granted it in her written decision,

noting that administrative pleadings are “liberally construed and easily amended, as long as adequate notice is provided and there is no prejudice to the opposing party.” 32 FMSHRC at 366 (citing CDK Contracting Co., 23 FMSHRC 783, 784 (July 2001) (ALJ)). She concluded that an area of the dumpsite entirely lacked berms, and that the berms in a separate area were inadequate. Id. at 367. In addition, a truck was attempting to dump without the assistance of a spotter. Id. As a result, the operator’s dumpsite did not comply with the requirements of section 77.1605(l). Id. She found that the violation was S&S and attributable to the operator’s unwarrantable failure to comply with the mandatory safety standard. Id. at 368-69.

B. Disposition

1. The amended petition complied with section 104(a) of the Mine Act.

Black Beauty contends that the judge erred in granting the Secretary’s motion to amend because section 104(a) of the Mine Act “requires contemplation of only a single standard for each enforcement action.” Black Beauty also asserts that the judge’s failure to rule on the motion at the hearing prevented it from knowing which violation it was litigating.

The Secretary contends that the judge did not abuse her discretion in permitting the Secretary to plead in the alternative as it had no effect on the operator’s ability to abate the violation or to prepare its defense. The Secretary also contends that section 104(a) of the Mine Act does not prohibit alternative pleadings.

Section 104(a) of the Act provides, in part, that “[e]ach citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated.” 30 U.S.C. § 814(a). The Commission has generally recognized that this requirement for specificity serves the purpose of allowing the operator to discern what conditions require abatement, and to adequately prepare for a hearing on the matter. Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 379 (Mar. 1993) (citing Mid-Continent Res., Inc., 11 FMSHRC 505, 510 (April 1989)).

The Secretary may allege alternative violations and comply with section 104(a). See Empire Iron Mining P’ship, 29 FMSHRC 999, 1003 (Dec. 2007). In Empire Iron, the Commission determined that the Secretary’s citation of alternative violations complied with section 104(a) after it concluded that the operator was able to both discern the condition requiring abatement and prepare for a hearing. Id. at 1003-04.

Black Beauty demonstrated that it was aware of the conditions requiring abatement when it successfully abated the violation on the day the order was issued. Gov’t Ex. 8. The order was terminated after the inspector observed that “[t]he operator had a spotter in place as haul trucks dumped spoil to create adequate berms.” Id. We note that the use of a spotter is contemplated by section 77.1605(l), rather than by section 77.1605(k).

In addition, the judge correctly concluded that the operator did not suffer prejudice. 32 FMSHRC at 366. The Secretary filed the motion in advance of the hearing. At the hearing, Black Beauty’s witnesses testified that the operator had used a spotter at the dumpsite for part of the day. Tr. 182, 192, 194-95, 197. The use of a spotter at the site is only relevant to the alleged alternative violation of section 77.1605(l). An operator cannot comply with section 77.1605(k) by using a spotter. Accordingly, we conclude that the operator was able to adequately prepare for hearing.

In summary, we conclude that the operator was able to discern which conditions required abatement and was able to adequately prepare for hearing. Therefore, we hold that the judge’s amendment of the order did not violate section 104(a).

2. Substantial evidence supports the judge’s conclusion that the operator violated section 77.1605(l).

The judge concluded that the operator violated the mandatory standard in section 77.1605(l), because a truck was observed in the process of dumping without the protection of adequate berms or a spotter. 32 FMSHRC at 367. Black Beauty argues that the judge’s conclusion is unsupported by substantial evidence. In particular, Black Beauty argues that the record demonstrates that the dumpsite contained adequate berms. In addition, it contends that the record does not contain evidence that a truck was dumping without a spotter.

We conclude that substantial evidence supports the judge’s decision. First, Inspector Stumbo testified that the west edge of the area contained “no berm.” Tr. 161-62, 169. Second, Stumbo stated that he measured the berms on the east side of the site and found that they were 45 inches high. Tr. 170. The mid-axle height of the haul trucks was 66 inches. 32 FMSHRC at 367. Previously, the judge concluded that a reasonably prudent person would recognize that section 77.1605 required a berm that was mid-axle height of the truck operating in the area. Id. at 359.

We also conclude that substantial evidence supports the judge’s finding that a truck was dumping without a spotter. Stumbo testified that he observed one truck and stopped it from dumping. Tr. 163. He also stated: “[w]e stopped the truck driver and asked him for his spotter, stopped him from dumping. . . . [The truck driver] said that there had been a spotter there earlier, but they had left. A guy on a dozer is the way he put it.” Tr. 163. Black Beauty asserts that the judge erred in failing to credit the testimony of Danny Miller, the dozer operator and spotter, whose testimony suggested that he may have spotted the truck in issue before leaving the dumpsite. We conclude that it was within the judge’s discretion to credit the testimony of Stumbo over that of Miller.

3. Substantial evidence supports the judge’s S&S designation.

As previously stated, a violation is S&S if, based on the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature. See Nat’l Gypsum, 3 FMSHRC at 825; Mathies,

6 FMSHRC at 3-4.

Substantial evidence supports the judge’s decision to affirm the S&S designation. First, substantial evidence supports the conclusion that the violation contributed to the hazard of a truck veering off the dumpsite and rolling or falling down the spoil bank. 32 FMSHRC at 368. The vertical height of the dumpsite was at least 115 feet. Gov. Ex. 8. One area of the dumpsite completely lacked a berm, while another contained a berm that was not adequate due to insufficient height. Id. Furthermore, Inspector Stumbo observed one truck dumping, despite testimony that the drivers were told to halt. Tr. 163, 201. It was within the judge’s discretion to infer that the other trucks would also continue to dump in the area, without a spotter, during continuing mining operations. As a result, the second element of the Mathies criteria was satisfied.

In addition, we find that substantial evidence supports the judge’s conclusion that a vehicle which veered off the elevated dumpsite is reasonably likely to result in injury, satisfying the third Mathies element. The evidence clearly shows that a truck veering off the dumpsite would fall at least 115 feet down a steeply angled slope to the bench below. Gov. Ex. 8; Tr. 164-65, 168. Finally, the judge concluded that such injury would be of a reasonably serious nature, which

satisfies the fourth element of the test. Black Beauty did not dispute this conclusion. Accordingly, we affirm the judge’s S&S determination.

4. The judge’s unwarrantable failure determination is vacated and remanded.

The judge also found that the violation was attributable to an unwarrantable failure to comply with section 77.1605(l). 32 FMSHRC at 369. Black Beauty states that the judge erred in her analysis because she failed to consider relevant evidence, such as evidence that a supervisor ordered the trucks to halt dumping after the spotter left the dumpsite.

We conclude that the judge erred in failing to consider relevant, potentially mitigating evidence. For instance, while the judge stated that the trucks may have been told to halt after the spotter left the dumpsite, she failed to weigh this testimony in her unwarrantable failure analysis. 32 FMSHRC at 368-69. We conclude that, because this evidence may be relevant to the operator’s knowledge of the existence of a violation, as well as the judge’s assessment of the overall degree of negligence, it should have been weighed in the unwarrantable failure analysis. Consol, 22 FMSHRC at 353. It may be that the dumping by one truck, which Stumbo prevented, was contrary to the supervisor’s orders, or at least that the supervisor’s orders would have prevented any other trucks from dumping without a spotter that day.

As a result, we reverse the judge’s unwarrantable failure analysis and remand that issue so that she may consider and weigh all the relevant evidence.

IV.

Conclusion

The judge’s decision regarding Citation No. 6671134 is vacated and remanded. On remand, the judge shall resolve the conflicts in testimony, and if she determines that the Secretary has proven a violation, she should reevaluate the S&S and unwarrantable failure designations.

The judge’s decision regarding Order No. 6671135 is affirmed, along with her decision that the order was S&S. However, the unwarrantable failure designation is vacated and remanded. On remand, the judge should consider all relevant evidence when evaluating if the operator’s failure to comply with the mandatory safety standard was the result of an unwarrantable failure.

Finally, the judge’s decision regarding Order No. 6671177 is affirmed, along with her decision that the order was S&S. However, the unwarrantable failure designation is vacated and remanded. On remand, the judge should consider all relevant evidence when evaluating whether the operator’s failure to comply with the mandatory safety standard was the result of an unwarrantable failure.

/s/ Robert F. Cohen, Jr.

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura

Patrick K. Nakamura, Commissioner

Chairman Jordan, concurring in part and dissenting in part:

I agree with the analysis in Commissioners Cohen and Nakamura’s opinion, finding that the dragline bench at issue in Citation No. 6671134 was a roadway for purposes of 30 C.F.R. § 77.1605(k). I would also affirm Order No. 6671135 (concerning the drill road violation) and the judge’s finding that the violation was significant and substantial (“S&S”). Regarding Order No. 6671177, which involved allegations of haul trucks traveling and dumping in an area without berms, I agree with the majority that the judge’s decision to grant the Secretary’s motion to amend the pleading did not violate section 104(a) of the Mine Act. I also agree with the section of the opinion affirming the Order and the S&S designation.

I write separately because I would affirm the dragline bench citation and find it S&S. Additionally, I would affirm the judge’s findings of unwarrantable failure regarding the two orders.

A. Citation No. 6671134

Regarding the violation of the berm regulation as it pertained to the dragline bench, in Citation No. 6671134, the judge credited the inspector’s testimony that for approximately two-tenths of a mile there were inadequate berms. 32 FMSHRC 356, 359 (Mar. 2010) (ALJ). Substantial evidence in the record supports this finding. Inspector Stumbo testified that part of the berm was non-existent. Tr. at 29-31. As the majority notes, the citation alleged that “[t]he dragline bench travel road does not have a berm for a distance of approximately 2/10 of a mile where a service truck with two miners traveled in 18' of the outer banks of a bench with approximately a 50' vertical drop to the pit floor.” Gov. Ex. 4; slip op. at 2. Stumbo stated emphatically that there was “a part [of the dragline bench where] there were no berms, zero berms.” Tr. 29.

The judge acknowledged Black Beauty’s argument that a remnant berm existed, 32 FMSHRC at 359, but she credited the Secretary’s witness that there was no berm. Nonetheless, my colleagues remand so that the judge might resolve conflicts in testimony. Slip op. at 5-6. This is unnecessary, as any confusing reference she may have made regarding “inadequate” berms does not detract from her credibility finding and the evidence in the record that no berm existed. Consequently, I would affirm this violation.

I would also affirm the judge’s finding that the violation was significant and substantial. Applying the Mathies test used to determine whether a violation is S&S, slip op. at 7-8, the first prong of the test is satisfied because the judge found a violation of a mandatory safety standard, a determination which, as previously stated, I would affirm. Regarding the second prong of the test, I would articulate the relevant hazard as my colleagues and I defined it in our S&S analysis of Order No. 6671135, slip op. at 8-9 -- that is, the danger of a vehicle veering off the elevated roadway and rolling, or falling. The lack of berms here contributed to this hazard, as the record demonstrates that the dragline bench travel road did not have a berm for a distance of approximately 2/10 of a mile, and that a service truck had traveled within 18 feet of the outer banks of the bench. Gov. Ex. 4; Tr. 29-30 (“the truck tracks come [sic] near within 18 feet of the edge of the outer banks of the high wall where it just dropped straight down, approximately 50 vertical feet straight down”). As the judge noted, Stumbo testified that the closer a vehicle travels to the edge of a highway, the more unstable the ground. 32 FMSHRC at 361; Tr. 32. Similar to the drill rig road where we upheld the judge’s S&S determination, the evidence shows that there was a 50-foot drop beyond the edge of the dragline bench. 32 FMSHRC at 358, 361; Tr. 32. Hence, the lack of a berm under these particular facts contributed to the hazard of a vehicle veering off the roadway.

As in the analysis my colleagues and I applied in finding Order 6671135 S&S, slip op. at 9-10, the third prong of Mathies is satisfied here because substantial evidence supports the judge’s conclusion that if a vehicle veered off the road, it is reasonably likely to result in injury. 32 FMSHRC at 361. Finally, the judge’s determination that it is reasonably likely that the driver and any passengers would sustain broken bones and injuries of a serious and potentially fatal nature, id., (satisfying the fourth prong of Mathies), is also supported by substantial evidence. Tr. 32. In recommending that the injury or illness could reasonably be expected to be permanently disabling, the inspector testified that he took into account “the size of the equipment and the distance of the fall and the material in the vehicle . . . just like a car crash distance, . . . only the truck would have a bigger impact than the car would . . . . ” Tr. 33. Accordingly, I would affirm the judge’s conclusion that the violation was S&S.

However, I would vacate and remand the judge’s finding that the violation was the result of the operator’s unwarrantable failure. Black Beauty contends that it believed the berm requirement in section 77.1605(k) did not apply during the time the dragline was moving over the bench because the operator did not consider the section of the bench in question to be a “roadway” as that term is used in the standard. Acting on the good faith belief that its cited conduct was actually in compliance with applicable law will not be considered to be the result of unwarrantable failure, even though it is later determined that the operator’s belief was in error. However, the operator’s belief that the bench was not a road was objectively reasonable under the circumstances. Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1615-16 (Aug. 1994). I would instruct the judge to consider whether the operator’s belief that the bench was not a road was objectively reasonable under the circumstances. As the D.C. Circuit noted in General Electric Co. v. EPA, 53 F.3d 1324, 1331-32 (D.C. Cir. 1995), even if an agency’s interpretation of a regulation is permissible, it may not be the first interpretation that comes to mind. As the D.C. Circuit explained, “[t]he permissible interpretation . . . is by no means the most obvious interpretation of the regulation.” Id. at 1331.

B. Order No. 6671135

As I stated above, I agree with my colleagues that the judge’s finding of violation and S&S should be affirmed, but I do not join them in vacating and remanding her unwarrantable failure determination. I would affirm her finding, as supported by substantial evidence. The record reflects that almost the entire drill road lacked berms. Black Beauty acknowledges that the condition existed for approximately 75 feet, BB Br. at 31-32, and the drill travel road was only 110 to 120 feet long. 32 FMSHRC at 363; Tr. at 107. Moreover, the road was on a 30% grade, 32 FMSHRC at 363, and there was a significant drop-off of approximately 50 feet from the edge of the road to the bench below. 32 FMSHRC at 363; Tr. 99. The judge’s S&S analysis addressed the degree of danger posed by the road. Furthermore, as my colleagues acknowledge substantial evidence supports the judge’s finding that greater efforts were necessary for compliance. Slip op. at 13. In particular, the citations issued on September 6, 2007, provided notice to the operator, as they were issued five days earlier, after an inspector observed inadequate berms at the mine. 32 FMSHRC at 362; Gov. Exs. 2-3.

I also take issue with my colleagues regarding the significance of the operator’s argument that the road was temporary and would no longer have existed after the drill was moved. Slip op. at 12. Even if the judge had found that it was temporary, which she did not, 32 FMSHRC at 365; in no way should this finding diminish the aggravated nature of Black Beauty’s conduct in failing to install berms, as the operator never intended to improve the berm on the road. Thus, this situation is readily distinguishable from other cases in which the duration of the violation is important because the operator intended to remedy the situation (such as a case where coal accumulations existed for only a short while before the operator was scheduled to clean them up).

I also disagree with my colleagues that a remand is necessary in order to permit the judge to consider the drill manager’s testimony that the road contained adequate berms. Slip op. at 12-13. Substantial evidence in the record supports the unwarrantable failure determination based in large part on the extensiveness and danger of the violation. The manager’s state of mind – whatever it was – does not undermine these central findings by the judge.

C. Order No. 6671177

I would also affirm the judge’s determination that Order No. 6671177 was the result of the operator’s unwarrantable failure to comply with the safety standard. The failure to supply berms in the dumping area created an extraordinarily dangerous hazard. The evidence is undisputed that there were drops of 115 feet on one side and 129 feet on the other side of the dumping site, with a slope of approximately 40% grade. 32 FMSHRC at 366; Gov. Ex. 8. Black Beauty’s Exhibits Nos. 10 through 12, showing photos of the dump site, confirm the presence of a steep drop-off with alarming clarity. In addition, the judge placed great weight on the fact that less than a month earlier, on September 6, 2007, the operator had been cited for the same conduct: “lack of means to prevent overtravel at the dumpsite.” 32 FMSHRC at 369; Gov. Ex. 3.

Black Beauty contends that trucks were put on hold while David Miller, who had been spotting the trucks, was temporarily called away to another area. BB Br. at 45. The majority remands this case to the judge in order for her to determine whether this was a mitigating factor. Slip op. at 17. However, in her analysis of the unwarrantable failure claim, the judge took this argument into account. Implicitly, she simply found that other factors outweighed it. Consequently, I am not sure what more she can do on remand.

Accordingly, for the reasons stated above, I would affirm the judge’s finding of unwarrantable failure.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chairman

Commissioner Duffy, concurring in part and dissenting in part:

I agree with Commissioners Cohen and Nakamura to affirm the judge’s determinations that violations were established in Order Nos. 6671135 and 6671177 and that the latter violation was S&S and to remand with regard to the question of the unwarrantability of both violations. I part ways with my colleagues with respect to two other issues, however.

A. The Secretary Failed to Establish that the Bench was a Roadway

With regard to Citation No. 6671134, I cannot agree that the section of a 200-foot wide bench, over which a dragline was being moved, can also be considered a “roadway” here, simply because one vehicle traveled over that section, and in doing so came to within no more than 18 feet of the edge of the bench. The majority rightly rejects the judge’s formulation that it was enough that one rubber-tire vehicle traveled over that section of the bench to convert it into a “roadway” for purposes of 30 C.F.R. § 77.1605(k). My colleagues find it to be harmless error, however, because of the evidence that vehicles had used that section of the bench before the dragline move, and would do so again after the move was complete. Slip op. at 3-4. I fail to see the relevancy of that to the question presented, so I cannot join them in concluding that the judge’s error was harmless.

In my opinion, the majority entirely fails to consider that, during the time period in which the dragline was moving over the bench at issue, the surface of the bench was such that it could not serve as the haulage roadway that it was before or was to be after the move. Tr. 91-92, 93-94. The Secretary made no attempt to establish that during the dragline move, vehicles could or would travel from one end of the bench to the other as they had before or would after the bench was repaired following the move. Tr. 46-47. That is because a dragline move results in ruts three-inches to three-feet deep being left on the surface of a bench, and thus regrading of it is required before use of the bench as a roadway by such haulage trucks could resume. Tr. 91, 93-94.

Moreover, as the judge acknowledged, the dragline move was so disruptive to transportation over the bench that it necessitated that the existing berms be lowered or material knocked off during the move, and rebuilt after the move was complete. 32 FMSHRC at 358; Tr. 31, 90-91. And those berms could not be rebuilt until regrading had finished, because any excess bench material resulting from the regrading would need to be dumped over the side. Tr. 91-92.

There were pickup trucks on the other side of the dragline, but because they apparently traveled from the opposite end of the bench, where the berms were sufficient at the time, the operator was not cited regarding that section of the bench. Tr. 29, 46, 92-93; BB Ex. 1. Rather, the operator was cited only for the segment of the bench on which the berms may have been lowered or material knocked off to effectuate the dragline move and over which the service truck in question traveled. Gov’t Ex. 4. Under these circumstances, I cannot agree that section of the bench should be considered a “roadway” during the time in question.

In addition to pointing to the questionably relevant pre- and post-dragline move periods of time, my colleagues also justify upholding the judge’s conclusion that section 77.1605(k) may have been violated here because it was normal for a service vehicle to travel to the dragline if it needed service. Slip op. at 4. That hardly establishes that it was routine for the dragline to be serviced by the welding truck during a move.

Moreover, even if it was routine, I again fail to see the relevancy. Service vehicle trips to the dragline or the use of backhoes to reposition its cables when the dragline is located elsewhere on the mine property are not material to the question at hand, which is whether the area in question, i.e., the bench over which the dragline was moving, should have been considered to be a roadway at the time. Otherwise, any bench used by a dragline that may have the need for such services would be converted into a roadway, regardless of whether any such service on the dragline while on that particular bench turned out to be necessary.

Finally, following the majority’s rationale to its logical conclusion, the operator would not be permitted to remove berms to accomplish a dragline move and necessary subsequent regrading, because the potential service requirements of the dragline would require that the area around the dragline be considered a roadway over which berms must be maintained at all times. Tr. 45-46 (inspector’s admission that service truck needed to get close to the dragline). I cannot agree with an interpretation of the standard that proves to be completely infeasible in the context of normal mining operations.

In light of the foregoing, I would reverse the judge on the question of whether the bench was a roadway.

B. The Judge Failed to Consider all of the Evidence in Affirming the Designation of Order No. 6671135 as S&S

I also believe the majority errs in affirming the judge’s S&S finding with respect to Order No. 6671135, having to do with the inclined temporary road. The majority correctly recognizes that it is the cause and effect of the hazard (here, the lack of berms for roughly half of the road) that must be significant and substantial; that we must consider the length of time the violative condition existed before it was cited, and would have existed under normal mining conditions, but for its discovery by the inspector; and that it is the particular facts surrounding the violation that determine whether it is S&S. Slip op. at 8.

I think it clear from the record that the judge failed to adequately consider all the facts surrounding the violation. Of particular importance is that it was established below that the road was only a temporary one, it having been built just that afternoon and slated to be removed within the next day or so. Tr. 113-14, 123-24, 134, 145. In addition, the road was described as relatively wide (Tr. 143), and among the pictures taken that established the violation was one that shows the none of the tracks on the road came anywhere near the edge of the road. BB Ex. 8; Tr. 104, 111-12, 133. Nor was any evidence introduced which showed that during the brief time the road existed, there was or would have been any two-way traffic over it.

Throughout the inspector’s testimony and the judge’s decision there are references to the possibility of vehicular loss of control or mechanical failure, and how that could cause a vehicle to go over the edge of a road where an adequate berm was lacking. I do not dispute that it would be quite dangerous for a truck to go careening towards the edge of the road where it lacked an adequate berm at a point at which there was the steep drop off over the road’s edge. However, absent evidence that any vehicle that used the road went near its edge, or had a reason to go near the edge, or may have been operated in a fashion that would have resulted in its going near the edge (Tr. 144), I cannot agree that substantial evidence supports the judge’s conclusion that the lack of berms was a S&S violation of the standard in this instance. This is particularly true here, where the road was a temporary one and thus would cease to exist during continued normal mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). Given that we are remanding the case to the judge to reconsider other issues, I would include this issue as part of the remand, in order to allow the judge to review all of the relevant evidence surrounding the violation.

/s/ Michael F. Duffy

Michael F. Duffy, Commissioner

Commissioner Young, concurring in part and dissenting in part:

Like Commissioner Duffy, I too agree with Commissioners Cohen and Nakamura to affirm the judge’s determinations that violations were established in Order Nos. 6671135 and 6671177 and that the latter violation was S&S, and to remand with regard to the question of the unwarrantability of both violations. I also agree with Commissioner Duffy’s analysis of the two issues on which he writes separately, and would remand the S&S issue with respect to Order No. 6671135. However, in order for there to be a majority disposition with regard to the question of whether there was a violation as alleged in Citation No. 6671134, I will instead join Commissioners Cohen and Nakamura in result on the question of whether the bench was a roadway, and join them in remanding to the judge the factual question of whether the berms along the bench were adequate ones.

/s/ Michael G. Young

Michael G. Young, Commissioner

Distribution:

R. Henry Moore, Esq.

Jackson Kelly, PLLC

Three Gateway Center, Suite 1340

401 Liberty Avenue

Pittsburgh, PA 15222

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Lisa R. Williams, Esq.

Office of the Solicitor

U.S. Department of Labor

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Chicago, IL 60604

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

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Administrative Law Judge Margaret Miller

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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Denver, CO 80202-2500