**FEDERALMINE SAFETY AND HEALTH REVIEW COMMISSION**

 

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

 

 
| BC QUARRIES, LLC,

                          Contestant

 

 

 

 

 

 

 

 

 

 

 

 

 

                        v.

 

 

 

 

 

 

 

 

 

 

 

 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH      

 ADMINISTRATION (MSHA),

                          Respondent

 

 

 

BC QUARRIES, LLC,

                          Contestant

 

 

 

 

 

 

 

 

 

 

 

                        v.

 

 

 

 

 

 

 

 

 

 

 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH      

 ADMINISTRATION (MSHA),

                          Respondent

 

 

 

 

 

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH      

 ADMINISTRATION (MSHA),

                          Petitioner

 

 

                        v.

 

 

 

BC QUARRIES, LLC,

                          Respondent

 

                                                                                                                                                                                                                                                  |   |   | CONTEST PROCEEDINGS

 

Docket No. PENN 2020-0110-RM

Citation No. 523939;  06/16/2020

 

Docket No. PENN 2020-0111-RM

Citation No. 9523940;  06/16/2020

 

Docket No. PENN 2020-0112-RM

Citation No. 9523941;  06/16/2020

 

Docket No. PENN 2020-0113-RM

Citation No. 9523942;  06/16/2020

 

Docket No. PENN 2020-0114-RM

Citation No. 9523943;  06/16/2020

 

Docket No. PENN 2020-0115-RM

Citation No. 9523945;  06/16/2020

 

Docket No. PENN 2020-0116-RM

Order No. 9523936; 06/16/2020

 

Docket No. PENN 2020-0118-RM

Order No. 9523937; 06/16/2020

 

Docket No. PENN 2020-0119-RM

Order No. 9523938; 06/16/2020

 

Docket No. PENN 2020-0120-RM

Order No. 9523958; 06/30/2020

 

 

 

 

Docket No. PENN 2020-0141-RM

Citation No. 9523971;  08/3/2020

 

Docket No. PENN 2020-0142-RM

Order No. 9523972; 08/03/2020

 

Docket No. PENN 2020-0143-RM

Citation No. 9523973;  08/3/2020

 

Docket No. PENN 2020-0144-RM

Order No. 9523974; 08/3/2020

 

Docket No. PENN 2020-0145-RM

Order No. 9523975; 08/3/2020

 

Docket No. PENN 2020-0146-RM

Order No. 9523970; 08/3/2020

 

Docket No. PENN 2020-0147-RM

Order No. 9523976; 08/3/2020

 

Docket No. PENN 2020-0148-RM

Order No. 9523977; 08/3/2020

 

Docket No. PENN 2020-0149-RM

Order No. 9523978; 08/3/2020

 

Mine: Shirvan Quarry

Mine ID: 36-09539

 

 

 

 

 

CIVIL PENALTY PROCEEDING

 

Docket No. PENN 2021-0007

A.C. No. 36-09539-523083

 

 

 

 

 

 

 

Mine: Shirvan Quarry

  |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

 

** **

**DECISION AND ORDER**

** **

Appearances:               David L. Karp, operator,for BC Quarries

 

Ryan Atkinson and Matthew P. Epstein, Office of the Solicitor, U.S.Department of Labor, Philadelphia, PA for the Secretary

 

Before: Judge McCarthy

This proceedingis before the undersigned upon Notices of Contest and a Petition for theAssessment of Civil Penalty under section 105(d) of the Federal Mine Safety andHealth Act of 1977, 30 U.S.C. § 815(d). 

This matterconcerns a series of inspections of the Mine, Shirvan Quarry, from April toOctober of 2020 and the resulting citations and orders. These inspections ledto a myriad of alleged violations, 8 citations and 11 orders at issue in thisproceeding. BC Quarries also challenges the penalty assessment that resultedfrom three of the orders. Many of these alleged violations stem from a similarsequence that involves a citation for an alleged violation followed by the failureto abate that violation, a withdrawal order, and the failure to follow thatwithdrawal order. 

A hearing washeld via Zoom for Government on July 13-14, 2021. During the hearing, theparties offered witness testimony[1] and documentary evidencecitation or order by citation or order.[2] The Secretary submitted apost-hearing brief on September 13, 2021.

Based on acareful review of the record, including the evidence submitted, the Secretary’spost-hearing brief, and observation of the demeanor of witnesses,[3]the undersigned makes the following findings of fact and conclusions of the law.

**I. STIPULATIONS**

            Theparties submitted the following stipulations, which have been accepted into therecord:

a)                 At all relevant times, Respondent has beenan “operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d).

b)                 BC Quarries is a “mine” as defined in § 3(h) of the Mine Act, 30 U.S.C.§ 802(h). 

c)                 Respondent’s operations at the mine at whichthe Citations in this case were issued aresubject to the jurisdiction of the Mine Act.

d)                 This proceeding is subject to thejurisdiction of the Federal Mine Safety and Health Review Commission and itsdesignated Administrative Law Judges pursuant to Sections 105 and 113 of theMine Act.

e)                 The individuals whose names appear in Block 22 of theCitation(s)/Order(s) in this case were acting in an official capacity and asauthorized representatives of the Secretary of Labor when they issued the Citations/Orders.

f)                  The Citation(s)/Order(s) were properly issued and served by a dulyauthorized representative of the Secretary of Labor upon an agent of Respondentat the date, time, and place stated.

g)                 Respondent is an ongoing business.

h)                 From June 16 to August 3, 2020, miners used the sea container identifiedin Order 9523975.

i)                  From June 16 to August 3, 2020, miners used the 500-gallon tankidentified in Order 9523972.

j)                  From June 16 to August 3, 2020, miners used the 100-gallon tankidentified in Order 9523974. 

k)                 On June 16, 2020, the John Deere excavator identified in Citation9523939 did not have mirrors. 

l)                  As of June 16, 2020, the fire extinguisher identified in Citation9523940 had not been inspected on a monthly basis.

Sec’y Prehearing Report at 3-4;July 13 Tr. at 13-26.

**II. PRELIMINARY MATTERS**

            As an initialmatter, numerous citations and orders involved in this matter—both those thatBC Quarries contested and those related to contested citations and orders—havealready become final decisions of the Commission. 

The Mine Actestablishes a dual system for filing contests of citations and contests ofproposed penalties. 30 U.S.C. § 815(d); 29 C.F.R. Part 2700, SubpartsB, C; *Kemper Equip. Inc.*, 35 FMSHRC 376, 376 (Feb. 2013). However,“[t]he filing of a notice of contest of a citation . . . does notconstitute a challenge to a proposed penalty assessment that may subsequentlybe issued by the Secretary . . . based on that citation.” 29 C.F.R§ 2700.21(a). Consequently, a party that wants to contest a proposedpenalty assessment must notify the Secretary of such contest “regardless ofwhether the person has previously contested the underlying citation.” *Id.*§ 2700.26. Where an operator fails to contest a penalty assessment within30 days, the Secretary’s penalty assessment becomes a final order of theCommission and not subject to review by any court or agency. 30 U.S.C.§ 815(a). This is the case even where an operator has contested theunderlying citation. *Apogee Coal Co., LLC*, 38 FMSHRC 32 (Jan.2016); *Kemper*, 35 FMSHRC at 377*.* Furthermore, “a penaltyunder the Mine Act is predicated upon the existence of a violation.” *Old BenCoal Co.*, 7 FMSHRC 205, 209 (Feb. 1985).

BC Quarriescontested the following citations but failed to contest the proposed penaltyassessments or file a motion to reopen for those citations: 

Citation No. 9523939 in Docket No.PENN 2020-0110, 

Citation No. 9523940 in Docket No.PENN 2020-0111, 

Citation No. 9523941 in Docket No.PENN 2020-0112, 

Citation No. 9523942 in Docket No.PENN 2020-0113, 

Citation No. 9523943 in Docket No.PENN 2020-0114, 

Citation No. 9523945 in Docket No.PENN 2020-0115, 

Citation No. 9523971 in Docket No.PENN 2020-0141, and 

Citation No. 9523973 in Docket No.PENN 2020-0143. 

Sec’y Ex. 25at 1-3; MSHA, *Mine Data Retrieval System*, https://www.msha.gov/mine-data-retrieval-system(searchable by mine name) (“*MDRS*”).[4] Because BC Quarries didnot timely contest the proposed penalties or file a motion to reopen for thesedockets, the penalty assessments have “become[] a final order of the Commissionand not subject to review by any court or agency.” 30 U.S.C. § 815(a).Consequently, these contest dockets are **DISMISSED**.

**III. LEGAL PRINCIPLES, FACTUALFINDINGS, AND ANALYSIS**

            The Secretary presentsthe remaining orders as falling into three categories: failure to abate acitation, working in the face of an order, and failure to correct a citation. 

            In three of the Orders—OrderNo. 9523936 in Docket No. PENN 2020-0166, Order No. 9523937 in Docket No.PENN 2020-0118, and Order No. 9523938 in Docket No. PENN 2020-0119—theSecretary alleges that BC Quarries violated section 104(b) when it failed toabate a violation in a previously issued citation. In four of the Orders—OrderNo. 9523970 in Docket No. PENN 2020-0146, Order No. 9523976 in Docket No. PENN2020-0147, Order No. 9523977 in Docket No. PENN 2020-0148, and Order No. 9523939in Docket No. PENN 2020-0110—the Secretary alleges that BC Quarries violatedsection 104(b) when it failed to correct a previous violation. The words“failure to correct” do not appear in section 104. However, it is a violationof section 104(b) to fail to abate a violation. As such, the undersigned willapply the same standard for a failure to abate a violation to the ordersalleging that BC Quarries failed to correct a previous citation. To establish thata section 104(b) withdrawal order for a failure to abate is valid, theSecretary must prove “by a preponderance of the evidence that the violationdescribed in the underlying section 104(a) citation existed at the time thesection 104(b) withdrawal order was issued.” *Mid-Continent Resources, Inc.*,11 FMSHRC 505, 509 (Apr. 1989).

The remaining fourOrders—Order No. 9523958 in Docket No. PENN 2020-0120, Order No. 9523972 in DocketNo. PENN 2020-0142, Order No. 9523974 in Docket No. PENN 2020-0144, and OrderNo. 9523975 in Docket No. PENN 2020-0144—allege a violation for working in theface of a withdrawal order. Although the language “working in the face” doesnot appear in the Mine Act, it is a violation of section 104(a) to violate “any. . . order . . . promulgated pursuant to this Act.” 30 U.S.C.§ 814(a). As such, the Secretary must show, by a preponderance of theevidence, that BC Quarries violated a valid, non-abated withdrawal order. *Mid-ContinentResources*, 11 FMSHRC at 509.

Negligence isnot defined in the Mine Act. The Commission has found that “[e]ach mandatorystandard thus carries with it an accompanying duty of care to avoid violationsof the standard, and an operator’s failure to satisfy the appropriate duty canlead to a finding of negligence if a violation of the standard occurred.” *A.H.Smith Stone Co.*, 5 FMSHRC 13, 15 (Jan. 1983) (citations omitted). Indetermining whether an operator meets its duty of care under the citedstandard, the Commission considers what actions would have been taken under thesame or similar circumstances by a reasonably prudent person familiar with themining industry, the relevant facts, and the protective purpose of theregulation. *See generally U.S. Steel Corp.*, 6 FMSHRC 1908, 1910(Aug. 1984); *see also**Jim Walter Res., Inc.*,**36 FMSHRC1972, 1975-77 (Aug. 2014) (requiring Secretary to show that operator failed totake specific action required by standard violated); *Spartan Mining*, 30FMSHRC at 708 (negligence inquiry circumscribed by scope of duties imposed byregulation violated). In this regard, the gravamen of high negligence is “anaggravated lack of care that is more than ordinary negligence.” *Brody Mining*,37 FMSHRC 1687, 1701 (Aug. 2015) (*citing Topper Coal Co.*, 20 FMSHRC344, 350 (Apr. 1998)). 

Commissionjudges are not required to apply the level-of-negligence definitions in Part 100penalty regulations and *may*evaluate negligence from the starting pointof a traditional negligence analysis rather than from the Part 100 definitions.*Brody Mining*, 37 FMSHRC at 1701; *Mach Mining, LLC v. Sec’y ofLabor*, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). Thus, in making anegligence determination, a Commission judge is not limited to an evaluation ofallegedly mitigating circumstances but may consider the totality of the circumstancesholistically. Under such an analysis, an operator is negligent if it fails tomeet the requisite high standard of care under the Mine Act. *Brody Mining*,37 FMSHRC at 1701.

A.               General Background

            BC Quarriesoperates the Shirvan Quarry, a surface mine in Susquehanna, Pennsylvania. *MDRS*.The mine produces dimension stone. *Id.*

            This matterinvolves inspections conducted by MSHA over a series of months. In April 2020,Inspector Gary C. Merwine conducted the first set of relevant inspections. *See*,*e.g.*, Sec’y Ex. 8 at 7. On June 16 and 30 and July 9, 2020,Inspector Timothy H. Lindsay conducted the second set of inspections. *See*,*e.g.*, Sec’y Ex. 5 at 1; *Id.* at 7; Sec’y Ex. 15 at 7. OnJuly 30, 2020, Inspector Lindsay again inspected the Mine. Due to events notrelevant to the alleged violations, Inspector Lindsay left the Mine withoutissuing orders or citations for alleged violations found during the July 30inspection. *See*, *e.g.*, Sec’y Ex. 5 at 7. On August 3, 2020,Inspector Lindsay issued the orders and citations for alleged violations foundduring the July 30 inspection. Finally, in October 2020, Inspector Merwinereturned to the Mine and terminated several pending citations and orders. *See*,*e.g.*, Sec’y Ex. 12 at 11.

            The facts specificto each remaining alleged violation will be discussed in separate sectionsbelow. 

B.                Order No. 9523936

            In Order No.9523936, part of Docket No. PENN 2020-0116, the Secretary alleges that BCQuarries violated section 104(b) when it failed to abate the preceding Citation,Citation No. 9522144. Sec’y Ex. 7 at 1. On April 2, 2020, InspectorMerwine issued Citation No. 9522144 for a John Deere 330LC excavator missing allits mirrors in violation of 30 C.F.R. § 56.14100(b).[5]*Id.* at 7. BC Quarries did not contest the proposed penalty or file amotion to reopen for Citation No. 9522144, which has become a final order ofthe Commission and the violation cannot be challenged. *MDRS*; 30 U.S.C.§ 815(a); *Apogee Coal*, 38 FMSHRC at 32; *Kemper*,35 FMSHRC at 377. Inspector Merwine gave two extensions for termination ofCitation No. 9522144 and set a final extension for June 1, 2020. Sec’y Ex. 7 at7-8.

****On June 16,2020, Inspector Lindsay observed that the John Deere 330LC excavator was stillmissing all its mirrors. July 13 Tr. at 203. A foreman told Inspector Lindsay thatthe excavator had been operated for two weeks in the cited condition after the citationhad been written. Sec’y Ex. 7 at 2. 

            In testimony, DavidKarp admitted that he had not fixed the mirrors. July 13 Tr. at 212. Mr. Karpalso stated that the equipment had not been tagged out. *Id.* at 215-16. Mr.Karp did allege that the equipment was in a designated area for equipment thatis out of service, but also admitted that there was no sign indicating thatthere was such an area. *Id*. at 216. Based on the lack of any indicationthat the area was posted or otherwise designated for equipment out of service,the undersigned concludes that this area was not a designated area posted forout-of-service equipment under 30 C.F.R. § 56.14100(c).[6]In short, BC Quarries took no effective steps to correct the missing mirrors“in a timely manner to prevent the creation of a hazard to persons.” 30 C.F.R.§ 56.14100(b).

            Consequently, the Secretaryhas shown by a preponderance of the evidence that BC Quarries failed to abate thepreceding Citation No. 9522144 in violation of section 104(b). Accordingly, OrderNo. 9523936 is **AFFIRMED**, and contest Docket No. PENN 2020-0116 is**DISMISSED**.The Secretary did not assess a penalty for thisviolation, and the undersigned declines to do so now.

C.                Order No. 9523937

            In Order No. 9523937,part of Docket No. PENN 2020-0118, the Secretary alleges that BC Quarriesviolated section 104(b) when it failed to abate the preceding Citation,Citation No. 9522143. Sec’y Ex. 8 at 1. On April 2, 2020, Inspector Merwineissued the preceding Citation after he observed that the same John Deere 330LC excavatordiscussed above, was missing a step to access the operator’s cab and the stepfor accessing the fuel cap was severely bent and missing a trackpad. InspectorMerwine issued the preceding Citation[7] for failing to provide asafe means of access in violation of 30 C.F.R. § 56.11001.[8]Sec’y Ex. 8 at 7. BC Quarries did not contest the proposed penalty for thepreceding citation or file a motion to reopen, and the preceding citation hasbecome a final order of the Commission and the violation cannot be challenged. *MDRS*;30 U.S.C. § 815(a); *Apogee Coal*, 38 FMSHRC at 32; *Kemper*,35 FMSHRC at 377. Inspector Merwine gave two extensions for terminatingthe preceding citation, setting a final extension for June 1, 2020. Sec’y Ex. 8at 8-9.

            On June 16, 2020,Inspector Lindsay observed that a step to the cab of the John Deere 330LCexcavator was still missing and that no repairs had been made. July 13 Tr. at 221.Inspector Lindsay testified that the John Deere 330LC excavator was not lockedand tagged out. *Id.* As noted above, a foreman told Inspector Lindsaythat the excavator had been operated for two weeks in the cited condition afterthe citation had been written. Sec’y Ex. 7 at 2. 

            Mr. Karp admittedthat he had not repaired the excavator and had not properly tagged it out, buthe again alleged that the excavator had been moved to an out-of-service area. July13 Tr. at 223, 225. The undersigned again rejects this argument for the reasonsset forth above because the area was not a designated area posted for out-of-serviceequipment under 30 C.F.R. § 56.14100(c). *See* Section B *supra*.

            Consequently, theSecretary has shown by a preponderance of the evidence that BC Quarries failedto abate the preceding Citation No. 9522143 in violation of section 104(b). OrderNo. 9523937 is **AFFIRMED**, and contest Docket No. PENN 2020-0118 is**DISMISSED**.The Secretary did not assess a penalty for thisviolation, and the undersigned declines to do so now.

D.               Order No. 9523938

            In Order No.9523938, part of Docket No. PENN 2020-0119, the Secretary alleges that BCQuarries violated section 104(b) when it failed to abate the preceding Citation,Citation No. 9522147. Sec’y Ex. 9 at 1. On April 2, 2020, InspectorMerwine issued the preceding Citation for a John Deere 790ELC excavator thatdid not have a functional travel alarm and horn in violation of 30 C.F.R.§ 56.14132(a).[9]*Id.* at 6. BCQuarries did not contest the proposed penalty or file a motion to reopen forthe preceding citation, and the preceding citation has become a final order ofthe Commission and the violation cannot be challenged. *MDRS*;30 U.S.C. § 815(a); *Apogee Coal*, 38 FMSHRC at 32; *Kemper*,35 FMSHRC at 377. Inspector Merwine gave two extensions for terminatingthe preceding citation, setting a final extension for June 1, 2020. Sec’y Ex. 9at 7-8.

            On June 16, 2020,Inspector Lindsay issued Order No. 9523938. He observed that the citedexcavator was in use in the southeast corner of the pit. Lindsay’s documentationindicates the foreman told him that repairs had been made, but no repair ormaintenance records were provided. *Id.* at 2. The foreman did not testifyat hearing. Inspector Lindsay testified that when the operator’s representativeRodriguez tested the travel alarm by starting the excavator and moving it inforward and in reverse, the travel alarm and horn did not function. July 13 Tr.at 232-33, 235; *see also*Sec’y Ex. 9 at 1. 

BC Quarriesquestioned Inspector Lindsay as to the use of a spotter in lieu of a backupalarm. July 13 Tr. at 250. Inspector Lindsay conceded on cross that BC Quarriesdid not need a travel alarm or horn if it used a spotter. *Id.* at 236. However,BC Quarries provided no testimony or evidence that it used a spotter on June16, 2020. Further, Inspector Lindsay never received training records or anyother indication that BC Quarries had a trained spotter, and BC Quarries didnot produce any such records for this tribunal. *Id.* at 251, 254. Accordingly,the undersigned finds insufficient evidence to conclude that BC Quarries used aspotter in lieu of a backup alarm on June 16, 2020.

            Mr. Karp testifiedthat to activate the travel alarm, “[y]ou physically have to start the machineto operate it.” *Id.* at 237. However, Mr. Karp was not present for theJune 16 inspection, and he provided no credible testimony to contradictInspector Lindsay’s testimony that the excavator was physically moved duringthe June 16 inspection when the travel alarm did not work. *Id.* at 238.

Mr. Karp admittedthat the horn did not work but testified that the fuse was blown. *Id.* at 237.He further testified that that whenever the excavator is run, it is inspected, andfuses are kept behind the seat, but that he 

d[id]n’t know what it is, if some soda got down in there at some timeand shorted something out—or some Gatorade. The dealer seems to think thatevery once in a while, it just blows the fuse . . . . [MSHA]keep coming on days we’re not operating any of these machines and writing acitation when none of them are being r[u]n. 

*Id.*at 237-38. Mr. Karp reiterated that “we have problems with the horn on the 790excavator. The dealer thinks some soda or Gatorade got down behind the seatinto the fuse box.” *Id.* at 239. He further reiterated that pre-operationalinspections are done on the horn, and, if it doesn’t work, the fuse isreplaced. “If the MSHA guy comes and does an inspection, if we’re operating themachine and it doesn’t work, that’s our problem.” *Id.* “And as we startthe machine on a daily inspect, if the fuse is blown, we put it in.” *Id.*at 240. 

Theundersigned discredits Mr. Karp’s testimony that the 790 excavator was not inoperation and his implicit suggestion that any blown fuse would have beencaught during the pre-operational inspection or might have occurred mid-shifton June 16. The Secretary has shown that the 790 excavator was in operation andthe horn and back-up alarm did not work. BC Quarries proffered no documentationor testimony that a fuse had been replaced on or after April 2 and before InspectorLindsay’s June 16, 2020 inspection. Given the extent of failure to abateviolations on this record, the undersigned discredits BC Quarries’ apparent rebuttaldefenses that it had timely abated the violation, but the violation recurred. Rather,the undersigned finds that the Secretary has shown by a preponderance of theevidence that BC Quarries failed to abate the preceding Citation No. 9522147 inviolation of section 104(b). Order No. 9523938 is **AFFIRMED**, and contestDocket No. PENN 2020-0119 is**DISMISSED**. TheSecretary did not assess a penalty for this violation, and the undersigneddeclines to do so now.

E.                Order No. 9523958

In Order No. 9523958, part of Docket No. PENN 2020-0120, the Secretaryalleges that BC Quarries violated section 104(b) when it was “working in the face”of the preceding Order, Order No. 9523938, part of Docket No. PENN 2020-0119. Sec’yEx. 10 at 1. The preceding Order was a section 104(b) withdrawal Order that wasissued on June 16, 2020, requiring that the Operator cease the use of the JohnDeere 790ELC excavator. Sec’y Ex. 9 at 1. The undersigned affirmed thepreceding Order and dismissed the Operator’s contest of the preceding Order inSection D above. 

Order No. 9523958 originally alleged a violation of section 104(a), but InspectorLindsay testified that there was a clerical error, and the violation wasmodified to a violation of section 104(b). Sec’y Ex. 10 at 1-2; July 13 Tr. at246. However, as explained above, a violation of a valid withdrawal order asalleged in Order No. 9523958 is a violation of section 104(a). 30 U.S.C.§ 814(a) (stating that it is a violation to violate “any . . .order . . . promulgated pursuant to this Act”). Consequently, theundersigned **MODIFIES** Order No. 9523958 from a violation of section104(b) to a violation of section 104(a).[10]

On June 30, 2020, Inspector Lindsay issued Order No. 9523958 afterobserving that the hour meter on the John Deere 790ELC excavator indicated thatthe excavator had been operated between June 18 and June 30, 2020. Sec’y Ex. 10at 1; July 13 Tr. at 248-49. The Secretary also introduced photographs showingthe difference in the hour meter on those two dates. Sec’y Ex. 10 at 4-5. Thesephotos, along with Inspector Lindsay’s testimony, indicate that the excavatorhad been operated for 23.4 hours during that 12-day period. The precedingwithdrawal Order was still in place. *Id.* at 1.

BC Quarries again raised the issue of a spotter (July 13 Tr. at 250), butfor the same reasons set forth above, the undersigned does not find sufficient evidenceto support the existence of a spotter. *See*Section D *supra*. BCQuarries did not offer evidence or testimony to rebut the evidence of the hourmeter indicating that the excavator had been operated between June 18 and June30, 2020.

The specific charge of Order No. 9523958 is that BC Quarries operated theJohn Deere 790ELC excavator while it was under withdrawal Order No. 9523938. Theundersigned finds that the Secretary has shown by a preponderance of theevidence that the excavator was operated between June 18 and June 30, 2020, inviolation of the withdrawal order and section 104(a). Order No. 9523958 is **AFFIRMED**as modified, and contest Docket No. PENN 2020-0120 is**DISMISSED**. The Secretary did not assess a penalty for thisviolation, and the undersigned declines to do so now.

F.                 Order No. 9523972

            In Order No.9523972, part of contest Docket No. PENN 2020-0142 and penalty Docket No. PENN2021-0007, the Secretary alleges that BC Quarries violated section 104(a) whenit continued to use a 100-gallon fuel tank and a 500-gallon fuel tank withoutproper labeling and after the issuance of a preceding withdrawal Order, OrderNo. 9523952. Sec’y Ex. 12 at 1. The Secretary issued the preceding withdrawal OrderNo. 9523952 on June 30, 2020, for failing to abate Citation No. 9523943. *Id.*at 10. The preceding Citation No. 9523943 found a violation of 30 C.F.R. § 47.41(a)[11]because the tanks “were not labeled with [their] contents.” Sec’y Ex. 5 at 1.BC Quarries did not contest or file a motion to reopen the preceding Order, andthe undersigned dismissed the challenge to Citation No. 9523943. *See*Section II *supra*. As a result, the preceding Order and Citation are“admitted and unreviewable.” 30 U.S.C. § 815(a); *Apogee Coal*,38 FMSHRC at 32; *Kemper*, 35 FMSHRC at 377. Inspector Merwineterminated the preceding Order on October 6, 2020. Sec’y Ex. 12 at 11.

            On July 30, 2020, Inspector Lindsaysaw that the same 100-gallon and 500-gallon fuel tanks did not have labelsindicating the contents of the tanks and the hazards posed by those contents. July13 Tr. at 289. These tanks contained diesel fuel, a fire hazard. *Id.* at329. Inspector Lindsay also observed that the tanks were being used atthat time. *Id.* at 291-92. 

            Mr. Karpacknowledged that the tanks had been moved and used between June 30 and August3, 2020. *Id.* at 293-95.[12] Brandon Karp testifiedthat he had written “no smoking” on the tanks on June 16 and “flammable” “combustible”by June 19, 2020. *Id.*at 306, 308. Although Brandon Karp initiallytestified that he “wrote diesel on the tanks or diesel storage,” he lateradmitted that the tanks did not have the word “diesel” on them or have otherlabelling that would indicate the contents of the tanks. *Id.* at 298-99,315. Given the subsequent testimony and the lack of supporting photographic orother evidence, the undersigned discredits Brandon Karp’s initial testimonythat he wrote “diesel” or “diesel storage” on the tanks and credits hissubsequent admission that he did not do so. 

            BC Quarriessubmitted a photo that showed a manufacturer’s label on the 100-gallon tank. Op.Ex. 2. However, that label—a diamond with a red background, a picture of aflame, the word “combustible,” and the number three—only indicates that tankcontained a flammable liquid and does not indicate what type of liquid was inthe tank. *See* 49 CFR § 172.419 (defining the hazard label for flammableliquids). As such, the manufacturer’s label does not satisfy the requirementsof § 47.41(a).

            BC Quarriesintroduced no credible evidence that the tanks were labelled as containingdiesel fuel at any time between June 30 and July 31, 2020. Based on that failureand the testimony provided by Inspector Lindsay, the undersigned finds that thetanks were not labelled to identify their contents. 

Consequently, the undersigned finds that the Secretary has shown by apreponderance of the evidence that BC Quarries continued to use the 100- and500-gallon fuel tanks without labels identifying their contents and did sodespite the preceding withdrawal Order No. 9523952, thus violating section 104(a).Order No. 9523972 is **AFFIRMED**, and contest Docket No. PENN 2020-0142 is**DISMISSED**. 

After the issuance of the withdrawal Order, BC Quarries did attempt tolabel the tanks to comply with MSHA regulations. Despite its failure to conformto these regulations, the actions of BC Quarries demonstrate that it was actingwith only moderate negligence in this violation. Because the precedingwithdrawal Order and Citation were still in effect on July 30, 2020, theviolation described in Order No. 9523972 would not, itself, result in anyadditional likelihood of injury or illness. Therefore, the gravity of Order No. 9523972is none. Through its repeated attempts to correct the violation, BC Quarriesdemonstrated some good faith.

The amount of a proper penalty will be discussed in Section IV.

G.               Order No. 9523974

            InOrder No. 9523974, part of contest Docket No. PENN 2020-0144 and penalty DocketNo. PENN 2021-0007, the Secretary alleges that after the issuance of apreceding section 104(b) withdrawal Order No. 9523954, BC Quarriesviolated section 104(a) when it continued to use the above-mentioned 100-gallonand 500-gallon fuel tanks without signs prohibiting smoking and open flames. Sec’yEx. 14 at 1. The Secretary issued the preceding withdrawal Order No. 9523954on June 30, 2020 for failing to abate Citation No. 9523946. *Id.* at 12. Thepreceding Citation No. 9523946 was for a violation of 30C.F.R. § 56.4101.[13] BC Quarries did notcontest the preceding Order or Citation. As a result, the preceding Order andCitation are “admitted and unreviewable.” 30 U.S.C. § 815(a); *ApogeeCoal*, 38 FMSHRC at 32; *Kemper*, 35 FMSHRC at 377. InspectorMerwine terminated the preceding Citation on October 6, 2020. July 13 Tr. at 332.

            OnJuly 30, 2020, Inspector Lindsay observed a 100-gallon fuel tank and a500-gallon fuel tank at the Mine. *Id.* at 329. These tanks containeddiesel fuel, a fire hazard. *Id.* The 100-gallon fuel tank had themanufacturer’s label, but neither fuel tank had any signs prohibiting smokingor open flames. *Id.* at 330-31. BC Quarries stipulated that miners usedthe 100-gallon and the 500-gallon fuel tanks from June 16 to August 3, 2020. Sec’yPrehearing Report at 3-4; July 13 Tr. at 13-26; *see also**id*. at 347(Brandon Karp testifying that the tanks were never taken out of service). 

            BrandonKarp also testified that the words “no smoking” were written on the tanks witha Sharpie pen, but he admitted that there was no sign prohibiting smoking and openflames. July 13 Tr. at 347. BC Quarries submitted a photo taken on August 10,2022 showing the words “no smoking” and “combustible” written in Sharpie on the500-gallon tank. Op. Ex. 3. However, based on the photo, the undersigned findsthat the words in thin black Sharpie on the rust-colored 500-gallon tank arenot “readily visible” as required by the regulation. 30 C.F.R. § 56.4101. No similar photo with words written in thin blackSharpie was proffered by BC Quarries for the 100-gallon tank. *See* Sec’yEx. 14 at 5 and 6. The undersigned concludes that on July 30, 2020, the100-gallon fuel tank and the 500-gallon fuel tank did not have readily visible signsprohibiting smoking and open flames. 

The undersigned concludes that the Secretary has shown by a preponderanceof the evidence that BC Quarries violated section 104(a) by continuing to usethe 100- and 500-gallon fuel tanks without signs prohibiting smoking and openflames while the preceding withdrawal Order No. 9523954 was in effect. Accordingly,Order No. 9523974 is **AFFIRMED**, and contest Docket No. PENN 2020-0144 is**DISMISSED**. 

After the issuance of the withdrawal Order, BC Quarries did attempt tolabel the tanks to comply with MSHA regulations. Despite its failure to conformto these regulations, the actions of BC Quarries demonstrate that it was actingwith only moderate negligence in this violation. Because the precedingwithdrawal Order and Citation were still in effect on July 30, 2020, theviolation described in Order No. 9523974 would not, itself, result in anyadditional likelihood of injury or illness. Therefore, the gravity of Order No.9523974 is none. Through its repeated attempts to correct the violation, BCQuarries demonstrated some good faith.

The amount of a proper penalty will be discussed in Section IV.

H.               Order No. 9523975

            In Order No. 9523975, part of contest DocketNo. PENN 2020-0145 and penalty Docket No. PENN 2021-0007, the Secretary allegesthat BC Quarries violated section 104(a) when it used a sea container housingoxygen acetylene tanks and gasoline cans without signs prohibiting smoking andopen flames after the issuance of a preceding section 104(b) withdrawal Order, OrderNo. 9523955. Sec’y Ex. 15 at 1. The Secretary issued the precedingwithdrawal Order No. 9523955 on June 30, 2020 for failing to abate Citation No.9523948. *Id.* at 5. The preceding Citation No. 9523948 was for aviolation of 30 C.F.R. § 56.4101.[14]BC Quarries did not contest the preceding Order or Citation. As a result, the preceding Order and Citationare “admitted and unreviewable.” 30 U.S.C. § 815(a); *Apogee Coal*,38 FMSHRC at 32; *Kemper*, 35 FMSHRC at 377. The precedingCitation was terminated on October 6, 2020. July 13 Tr. at 352.

            OnJuly 30, 2020, Inspector Lindsay observed a sea container that had oxygenacetylene tanks and gasoline tanks inside. *Id.* at 352. Inspector Lindsaydid not observe any signs on the outside of the container indicating thatsmoking and open flames were prohibited. *Id.* Inspector Lindsay alsoobserved the inside of the sea container and did not see the required signage. *Id.*at 355. Inspector Lindsay also testified that the doors of the container wereopen, and that he did not observe any signs on the interior sides of the doorseither. *Id*. at 354-55. Inspector Lindsay also testified that thecontainer presented a fire hazard because of its contents and the risk that adropped match or lit cigarette would ignite the dry grass surrounding thecontainer. *Id.* at 358-57, 362-63; Sec’y Ex. 15, at 8-9. 

            Mr.Karp testified that, on July 30, 2020, there were labels on the inside of thedoors of the sea container. July 13 Tr. at 360. This testimony conflicts with InspectorLindsay’s testimony that there were no labels on the inside of the doors of thecontainer. *Id.* at 354-55. On this record, the undersigned credits InspectorLindsay who had clear recall on cross examination of his observations anddiscussions concerning the open container and its contents on August 3, 2020. *Id.*at 354-60. However, whether there were signs on the insides of the doors isultimately irrelevant. The standard requires that the required signage be“readily visible.” 30 C.F.R. § 56.4101. Even if there were signs on theinterior sides of the doors, once those doors are closed, the signs are nolonger visible to miners on the outside of the container filled with oxygenacetylene and gasoline tanks. If there were signs on the interior of the doors,they were not “readily visible” and would not, alone, satisfy the standard. July13 Tr. at 359. 

Consequently, the undersigned finds that the Secretary has shown by apreponderance of the evidence that BC Quarries continued to store materialsthat posed a fire or explosion hazard in the sea container without readilyvisible signs prohibiting smoking and open flames and did so despite thepreceding withdrawal Order No. 9523955, thereby violating section 104(a). OrderNo. 9523975 is **AFFIRMED**, and contest Docket No. PENN 2020-0145 is**DISMISSED**. 

BC Quarries had been repeatedly warned to label the sea container, whichhad oxygen acetylene and gasoline tanks inside, with signs prohibiting smokingand open flames. The failure to do so and the continued use of the seacontainer despite the withdrawal Order constitutes high negligence. Because thepreceding withdrawal Order and Citation were still in effect on July 30, theviolation described in Order No. 9523975 would not, itself, result in anyadditional likelihood of injury or illness. Therefore, the gravity of Order No.9523975 is none. Despite the preceding Order and Citation, BC Quarries did notcorrect the violation. This demonstrates a lack of good faith on the part of BCQuarries.

The amount of a proper penalty will be discussed in Section IV.

I.                   Order No. 9523970

            InOrder No. 9523970, part of contest Docket No. PENN 2020-0146, the Secretaryalleges that BC Quarries violated section 104(b) when it failed to abate thepreceding Citation, Citation No. 9523967. Sec’y Ex. 16 at 1. The Secretaryissued the preceding Citation No. 9523967 on July 9, 2020 for a violation of 30C.F.R. § 56.14207.[15]*Id.* at 7. BCQuarries did not contest the preceding Citation.As a result, the preceding Order and Citation are “admitted andunreviewable.” 30 U.S.C. § 815(a); *Apogee Coal*, 38 FMSHRCat 32; *Kemper*, 35 FMSHRC at 377. The preceding Citation wasterminated on October 6, 2020. Sec’y Ex. 16 at 2.

            During the July 9, 2020inspection, Inspector Lindsay observed a Volvo A25C haul truck that was parkedwith no chocks. July 14 Tr. at 6. At that time, Inspector Lindsay used thelevel on his phone and determined that the truck was ona two-degree incline. *Id.* at 7. Inspector Lindsay also took apicture of the truck and the level indicating the two-degree incline. Sec’y Ex.16 at 11. Based on this inspection, Inspector Lindsay issued the precedingCitation No. 9523967. *Id.* at 7.

            During the July 30,2020 inspection, Inspector Lindsay again observed the haul truck parked with nochocks. July 14 Tr. at 7. Although it was the same haul truck, it was in adifferent location during the July 30 inspection. *Id*. at 12. TheSecretary submitted two photos of the haul truck taken during the July 30inspection. Sec’y Ex. 16 at 5-6. Inspector Lindsay alsotestified that the haul truck was on an incline. July 14 Tr. at 7. However, InspectorLindsay did not provide any measurements of the angle of the incline during theJuly 30 inspection. Additionally, Inspector Lindsay admitted that one of thephotos (Sec’y Ex. 16 at 5) did not show an incline and that he could not tellhow far the truck might roll in the second photo (Sec’y Ex. 16 at 6). *Id.*at 9, 11, 16. 

            Mr. Karp testifiedthat the haul truck was on level ground during the July 30 inspection. *Id.*at 18.

            As noted above, toprove a failure to abate a preceding violation, the Secretary must show that theviolation that existed in the preceding citation existed at the time theSecretary issued the order. *Mid-Continent Resources, Inc.*,11 FMSHRC at 509. Here, the Secretary has failed to provide sufficientevidence to show that the haul truck was on an incline on the date he issuedthe Order. Of the two photos used as support for this Order, the firstshows—and the Inspector admitted it shows—the truck on level ground. Sec’y Ex.16 at 5; July 14 Tr. at 9, 16. The second photo is more ambiguous, but theundersigned finds that the second photo does not show, by a preponderance ofthe evidence, that the haul truck was on an incline during the July 30inspection. Sec’y Ex. 16 at 6. Even assuming the second photo showed anincline, the Secretary did not provide any evidence as to the degree of anyincline or demonstrate that it was more than de minimis. 

            Although the Secretaryneed only show that the violation described in the preceding Citation existedat the time of the issuance of the Order, the different locations of the haultruck present a changed circumstance. Because the haul truck had been movedsometime between the July 9 and 30 inspections, the Secretary cannot rely on InspectorLindsay’s testimony that he determined that the truck was on a two-degreeincline during the July 9, 2020 inspection. The Secretary must show that haultruck was on an incline in the new location on July 30, 2020. The Secretary hasfailed to do so.

As noted, Mr.Karp testified contrary to Inspector Lindsay that the haul truck was on levelground during the July 30 inspection. July 14 Tr. at 18. Although InspectorLindsay testified that the haul truck was on an incline, he did not provide anymeasurements of the angle of the incline during the July 30 inspection and he admittedthat one of the photos did not show an incline and he could not tell how farthe truck might roll in the second photo. In these circumstances, the undersigneddiscounts Lindsay’s testimony and credits Karp’s testimony that the haul truckwas on level ground during the July 30 inspection consistent with Sec’y Ex. 16at 5. 

            Consequently, the Secretaryhas failed to show by a preponderance of the evidence that BC Quarries failedto abate Citation No. 9523967, and the undersigned **VACATES** OrderNo. 9523970. 

J.                  Order No. 9523976

            In Order No. 9523976,part of contest Docket No. PENN 2020-0147, the Secretary alleges that BCQuarries violated section 104(b) when it failed to abate the preceding Citation,Citation No. 9523968. Sec’y Ex. 17 at 1. TheSecretary issued the preceding Citation No. 9523968on July 9, 2020 for a violation of 30 C.F.R. § 56.11001.[16]*Id.* at 8. BC Quarries did not contest the preceding Citation. *MDRS*.Asa result, the preceding Order and Citation are “admitted and unreviewable.” 30 U.S.C.§ 815(a); *Apogee Coal*, 38 FMSHRC at 32; *Kemper*,35 FMSHRC at 377. The preceding Citation was terminated on October 6,2020. Sec’y Ex. 17 at 2.

            On July 9, 2020,Inspector Lindsay observed a Volvo A25C haul truck with damaged steps. July 14 Tr.at 25, Sec’y Ex. 17 at 8. Specifically, Inspector Lindsay observed that thebottom step of the engine access step was missing and that the next step wasdamaged, making it uneven. *Id.* at 27. Based on the damaged steps, theSecretary issued the preceding Citation No. 9523968 for a failure to providesafe access for the haul truck. Sec’y Ex. 17 at8.

            OnJuly 30, 2020, Inspector Lindsay inspected the haul truck again and found thatthe steps were still damaged. July 14 Tr. at 28. Inspector Lindsay also tookphotos of the damaged steps. *Id.*; Sec’y Ex. 17 at 5. 

            AlthoughMr. Karp argued that he had personal reasons for not repairing the steps, headmitted that an inspector had told him how to fix the damaged steps, but hehad not done so. July 14 Tr. at 35-37, 38. 

            TheSecretary has demonstrated by a preponderance of the evidence that BC Quarriesdid not abate the preceding Citation No. 9523968 in violation of section 104(b).Order No. 9523976 is **AFFIRMED**, and contest Docket No. PENN2020-0147 is**DISMISSED**. The Secretary didnot assess a penalty for this violation, and the undersigned declines to do sonow.

K.                Order No. 9523977 

In Order No. 9523977, part of contest Docket No. PENN2020-0148, the Secretary alleges that BC Quarries violated section 104(b) whenit failed to abate the preceding citation, Citation No. 9523957. Sec’y Ex. 18 at 1. The Secretary issued the precedingCitation No. 9523957 on June 30,2020 for a violation of 30 C.F.R. § 56.14100(d).[17]*Id.* at 5. BC Quarries did not contest the preceding Citation. *MDRS*. As a result, the precedingCitation is “admitted and unreviewable.” 30 U.S.C. § 815(a); *ApogeeCoal*, 38 FMSHRC at 32; *Kemper*, 35 FMSHRC at 377. Thepreceding Citation was terminated on October 8, 2020. July 14 Tr. at 41; Sec’yEx. 18 at 2.

            On June 30, 2020,Inspector Lindsay requested pre-shift examination and workplace examinationpaperwork. July 14 Tr. at 39-40. At that time, BC Quarries did not produce anypaperwork, despite the multiple pieces of defective equipment at the Mine. *Id.*at 39. Inspector Lindsay then issued the preceding Citation No. 9523957 forviolating § 56.14100(d). Sec’y Ex. 18 at 5. The original Citationreferenced several pieces of defective equipment that should have beendocumented under § 56.14100(d). *Id.*

OnJuly 30, 2020, Inspector Lindsay returned to the mine and again requestedpre-shift and workplace exam paperwork. July 14 Tr. at 40. BC Quarries did notprovide the requestedpaperwork. Based onBC Quarries’ continued failure to produce the paperwork, Inspector Lindsayissued Order No. 9523977.

Atthe hearing, Mr. Karp argued that, because no equipment needed repairs duringpre-shift examinations, there was no need for such equipment to be listed inpre-shift and workplace‐exam paperwork. July 14 Tr. at 49. Inspector Lindsayadmitted that, under § 56.14100(d), a mine operator does not need toprovide paperwork where there are no defects. *Id.* at 50. The evidencethroughout this hearing demonstrates, however, that there were known defectsthat BC Quarries never documented, and that BC Quarries failed to abate. Forexample, Orders No. 9523937 and 9523938 involve defects that had beenoriginally cited as violations on April 2, 2020, were part of Citation No.9523957—the preceding Citation—and had not been abated until October 2020. BCQuarries did not produce these records until the preceding Citation was abatedon October 8, 2020. *Id.* at 41. As such, the evidence demonstrates that therewere at least several months when BC Quarries was aware of the defects but didnot record them as required by § 56.14100. This evidence further indicatesthat BC Quarries was in violation of this regulation when Order 9523977was issued.

            Consequently, the Secretaryhas demonstrated by a preponderance of the evidence that BC Quarries did notabate the preceding Citation No. 9523957, thereby violating section 104(b). OrderNo. 9523977 is **AFFIRMED**, and contest Docket No. PENN 2020-0148 is **DISMISSED**.The Secretary did not assess a penalty for this violation, and the undersigneddeclines to do so now.

L.                Order No. 9523978

InOrder No. 9523978, part of contest DocketNo. PENN 2020-0149, the Secretary alleges that BC Quarries violated section104(b) when it failed to abate the preceding citation, Citation No. 9523961. Sec’y Ex. 19 at 1. The Secretaryissued the preceding Citation No. 9523961 onJune 30, 2020 for a violation of 30 C.F.R. § 56.4430(a).[18]*Id.* at 19. BC Quarries did not contest the preceding Citation. *MDRS*. As a result, the precedingCitation is “admitted and unreviewable.” 30 U.S.C. § 815(a); *ApogeeCoal*, 38 FMSHRC at 32; *Kemper*, 35 FMSHRC at 377. Thepreceding Citation was terminated on October 6, 2020. Sec’y Ex. 19 at 2.

Duringthe July 9, 2020 inspection, Inspector Lindsay saw five-gallon fuel cans containinggasoline that were not “maintained in a manner to prevent leakage.” July 14 Tr.at 51. Specifically, the cans “had a plastic bag with trash inside draped overthe fill port and the cap [was] placed on it to prevent leakage.” *Id.* at51. Inspector Lindsay issued the preceding Citation to that effect. Sec’y Ex.19 at 9.

            During the July 30,2020 inspection, Inspector Lindsay saw five-gallon fuel cans that “didn’t haveany ventilation” and had caps “screwed on tight.” July 14 Tr. at 52. The Secretaryproffered a photo of the cans taken during this inspection. Sec’y Ex. 19 at 4. Thephoto does not show any bag filled with trash. *Id*. Inspector Lindsay alsoadmitted that there was no plastic bag during this inspection and that BCQuarries had “made an adjustment.” July 14 Tr. at 56. Mr. Karp alsotestified that the cans had been changed between the two inspections. *Id.*at 57.

            Order 9523978 isfor a violation of 104(b) for a failure to abate the preceding Citation No. 9523961.The Secretary needs to prove that the violation described in the precedingCitation existed at the time the Order was issued. Sec’y Br. at 32 (citing *Mid-ContinentResources, Inc.*, 11 FMSHRC at 509). However, the Secretary has failed toprove that here. The original citation described the violation as a fuel can“not maintained in a manner that prevents leaks” and “had a plastic bag withtrash inside draped over the fill port then the cap placed on it.” Sec’y Ex. 19at 4. In contrast, Inspector Lindsay, on July 30, 2020, issued the Order fora fuel can that “didn’t have any ventilation” and “the cap was screwed ontight.” July 14 Tr. at 52. Inspector Lindsay also admitted—and the photoclearly demonstrates—that there was no plastic bag with trash in it during theJuly 30 inspection. *Id.* at 56; *see also*, Sec’y Ex. 19 at 4.

            The violationdescribed in the preceding Citation did not exist on July 30, 2020. Not only wasthere no “plastic bag with trash inside draped over the fill port” with a capon it, but the description of the violation was also different during the July30 inspection. Inspector Lindsay testified that the July 30 inspection showedfuel cans that lacked ventilation, but the preceding Citation was for failureto prevent leakages. *Compare**id.* at 52 (describing the fuel canthat “didn’t have any ventilation”) *with* Sec’y Ex. 19 at 4 (“The fivegallon fuel can . . . was not maintained in a manner that preventsleakage”). While § 56.4430(a) concerns both leakage and ventilation, thepreceding Citation described a violation for a condition—that is, leakage—thatwas not present at the time of the subsequent Order.

            The Secretary hasfailed to demonstrate that the violation described in Citation No. 9523961existed at the time he issued Order No. 9523978, and the undersigned **VACATES**Order No. 9523978.

**IV.Penalty Assessment**

****Itis well established that****Commission Administrative Law Judges assesscivil penalties de novo for violations of the Act. Section 110(i) of the Actdelegates to the Commission the “authority to assess all civil penaltiesprovided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates theduty of proposing penalties to the Secretary. 30 U.S.C. §§ 815(a),820(a). When an operator contests the proposed penalty, the Secretary petitionsthe Commission to assess the proposed penalty. 29 C.F.R. § 2700.28. The Actrequires, that “in assessing civil monetary penalties, the Commission [ALJ]shall consider” six statutory penalty criteria:

[1] the operator’s history ofprevious violations, [2] the appropriateness of such penalty to the size of thebusiness of the operator charged, [3] whether the operator was negligent, [4]the effect on the operator's ability to continue in business, [5] the gravityof the violation, and [6] the demonstrated good faith of the person charged inattempting to achieve rapid compliance after notification of a violation.

30U.S.C. § 820(i). 

In keepingwith this statutory requirement, the Commission has held that “findings of facton the statutory penalty criteria must be made” by its judges. *SellersburgStone Co.,* 5 FMSHRC 287, 292 (Mar. 1983), *aff’d,* 736 F.2d1147 (7th Cir. 1984). Once factual findings on the statutory penalty criteriahave been made, a judge’s penalty assessment for a particular violation is anexercise of discretion, which is bounded by proper consideration of thestatutory criteria and the deterrent purposes of the Act. *Id.* at 294; *CanteraGreen,* 22 FMSHRC 616, 620 (May 2000). In exercising this discretion todetermine the amount of a penalty, the Commission has recognized that a judgeis not bound by the penalty proposed by the Secretary. *Spartan Mining Co.*,30 FMSHRC 699, 723 (Aug. 2008).

Whendetermining a proper assessment for the violations, the undersigned consideredthe following facts: 1) BC Quarries’ history of violations of the relevantstandards in the 15 months prior to the accident (Sec’y Ex. 25); 2) BCQuarries’ size as an operator, who logged 3,000 hours worked at the mine in 2020(*MDRS*); and 3) the fact that the penalties will not have an effecton BC Quarries’ ability to continue in business (July 13 Tr. at 26). 

In addition,the undersigned considered the high level of negligence and zero gravity of OrderNo., and 9523975, as well as the failure in good faith to timely correct theviolations. For Orders No. 9523972 and 9523974, the undersigned considered themoderate levels of negligence, the zero gravity, and BC Quarries’ good faith.

Based upon the undersigned’sconsideration of the section 110(i) penalty criteria and the deterrent purposesof the Act, the undersigned assesses penalties of $125.00 each for Orders No.9523972 and 9523974 and a penalty of $137.00 for Order No. 9523975. This amountis the result of an independent determination of the penalty amount based onthe statutory criteria that responds to the seriousness of the violations and willdeter future violations. *American Coal Co. v. FMSHRC*, 933 F.3d 723, 728(D.C. Cir. 2019). 

**V. CONCLUSION**

For theforegoing reasons, it is **ORDERED** that Docket No. PENN 2020-0110contesting Citation No. 9523939, Docket No. PENN 2020-0111 contesting CitationNo. 9523940, Docket No. PENN 2020-0112 contesting Citation No. 9523941, DocketNo. PENN 2020-0113 contesting Citation No. 9523942, Docket No. PENN 2020-0114contesting Citation No. 9523943, Docket No. PENN 2020-0115 contestingCitation No. 9523945, Docket No. PENN 2020-0141 contesting Citation No.9523971, and Docket No. PENN 2020-0143 contesting Citation No. 9523973 be **DISMISSED**.

It is **ORDERED** that Orders No. 9523936, 9523937, 9523938, 9523975,9523976, and 9523977 be **AFFIRMED**, and contest Dockets No. PENN2020-0116, 0118, 0119, 0145, 0147, and 0148 be **DISMISSED**.

It is **ORDERED**that Order No. 9523958 be **MODIFIED** from a violation of section104(b) to a violation of section 104(a); that Orders No. 9523972 and 9523974 be**MODIFIED** from high negligence to moderate negligence; that Orders No. 9523958,9523972, and 9523974 be **AFFIRMED** as modified; and that contest DocketsNo. PENN 2020-0120, 0142, and 0144 be **DISMISSED**.

It is **ORDERED**that Orders No. 9523970 and 9523978 be **VACATED**.

It is further **ORDERED**that the Operator pay a total penalty of $387.00 within thirty days of this order.[19]

 

 

 

 

/s/Thomas P. McCarthy

                                                                                                                                    ThomasP. McCarthy

                                                                                                                                    AdministrativeLaw Judge

 

 

Distribution:

 

David Karp

BC Quarries, LLC

908 Fox Road

Factoryville, PA 18419

bigfish6344@gmail.com

 

Ryan Atkinson

Matthew R. Epstein

Office of the Solicitor

U.S. Department of Labor

The Curtis Center

170 S. Independence Mall West

Suite 630 East

Philadelphia, PA 19106-3306           

atkinson.ryan.c@dol.gov

epstein.matthew.r@dol.gov

 

BC Quarries, LLC

Miner’s Representative

908 Fox Road

Dimock, PA 18419 

 

/ztb

----

[1] MSHA inspector Timothy H.Lindsay testified for the Secretary. Mine Operator David Karp and his son,Brandon Karp, testified for BC Quarries. 

[2] In this Decision, “July13 Tr.” refers to the hearing transcript for July 13, 2021, “July 14 Tr.”refers to the July 14, 2021 transcript, “Sec’y Ex.” refers to the Secretary’s exhibits,and “Op. Ex.” refers to BC Quarries’ exhibits. Sec’y Exs. 1-30 and Op. Exs. 1-3were received into evidence. July 14 Tr. at 75, 77.

[3] In evaluating testimony,the undersigned has taken into consideration the nature of the questioning andtestimony given in response, the demeanor of the witnesses, their evasivenessor forthrightness, their interests in this matter, the inherent probability oftheir testimony in light of other events, corroboration or lack ofcorroboration for their testimony, their experience and credentials, and theirconsistency or lack of consistency vis-à-vis their own testimony and thetestimony of other witnesses.

[4] The undersigned takesjudicial notice of MDRS. Fed. R. Evid. 201(b) (“The court may judicially noticea fact that is not subject to reasonably dispute because it . . . canbe accurately and readily determined from sources whose accuracy cannot reasonablybe questioned.”).

[5] This regulation 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.”

[6] This regulation statesthat “[w]hen defects make continued operation hazardous to persons, thedefective items including self-propelled mobile equipment shall be taken out ofservice and placed in a designated area posted for that purpose, or a tag orother effective method of marking the defective items shall be used to prohibitfurther use until the defects are corrected.”

[7] The original citationstated that it was for a violation of 30 C.F.R. § 56.10001. InspectorLindsay explained that Inspector Merwine had entered the incorrect regulationand that § 56.11001 is the correct regulation for the violation describedin the preceding citation. July 13 Tr. at 218.

[8] This regulation statesthat “[s]afe means of access shall be provided and maintained to all workingplaces.”

[9] This regulation statesthat “[m]anually-operated horns or other audible warning devices provided onself-propelled mobile equipment as a safety feature shall be maintained infunctional condition.”

[10] In making thismodification, the undersigned does not add new factual allegations outside ofthe original Order and finds that BC Quarries had notice of these allegations andis not unfairly prejudiced. *See**Mettiki Coal Corp.*, 13 FMSHRC760, 765 (May 1991).

[11] This regulation statesthat “[t]he operator must ensure that each container of a hazardous chemicalhas a label. If a container is tagged or marked with the appropriateinformation, it is labeled.” As relevant here, 30 C.F.R.§ 47.42 states that a label must “[d]isplay appropriate hazard warnings”and “[u]se a chemical identity that permits cross-referencing between the listof hazardous chemicals, a chemical's label, and its MSDS.” Additionally,§ 47.11 defines “Identity” as “[a] chemical’s common name or chemicalname” and “Label” as “[a]ny written, printed, or graphic material displayed onor affixed to a container to identify its contents and convey other relevantinformation.”

[12] In relation to anothercitation, BC Quarries obliquely argued that it was not liable because the tanksbelonged to a subcontractor and not BC Quarries. July 13 Tr. at 279-80. Buteven if the tanks belonged to a contractor, BC Quarries—as the operator of themine—is liable for the actions of its contractors. *Mingo Logan Coal Co.*,19 FMSHRC 246, 249 (Feb. 1997) (confirming that an operator is “strictlyliable for all violations of the Act that occur on the mine site, whethercommitted by one of its employees or an employee of one of its contractors”(citing *Bulk Transp. Servs., Inc.*, 13 FMSHRC 1354 (Sept. 1991)).

 

[13] This regulation statesthat “[r]eadily visible signs prohibiting smoking and open flames shall beposted where a fire or explosion hazard exists.”

[14] This regulation statesthat “[r]eadily visible signs prohibiting smoking and open flames shall beposted where a fire or explosion hazard exists.”

[15] This regulation statesthat “[m]obile equipment shall not be left unattended unless the controls areplaced in the park position and the parking brake, if provided, is set. Whenparked on a grade, the wheels or tracks of mobile equipment shall be eitherchocked or turned into a bank.”

[16] This regulation statesthat “[s]afe means of access shall be provided and maintained to all workingplaces.”

[17] This regulation statesthat “[d]efects on self-propelled mobile equipment affecting safety, which arenot corrected immediately, shall be reported to and recorded by the mineoperator. The records shall be kept at the mine or nearest mine office from thedate the defects are recorded, until the defects are corrected. Such recordsshall be made available for inspection by an authorized representative of theSecretary.”

[18]As relevant here, this regulation states that “[s]torage tanks for flammable orcombustible liquids shall be -

(1) Capable of withstanding workingpressures and stresses and compatible with the type of liquid stored;

(2) Maintained in a manner thatprevents leakage;

(3) Isolated or separated fromignition sources to prevent fire or explosion; and

(4) Vented or otherwise constructedto prevent development of pressure or vacuum as a result of filling, emptying,or atmospheric temperature changes. Vents for storage of Class I, II, or IIIAliquids shall be isolated or separated from ignition sources. These pressurerelief requirements do not apply to tanks used for storage of Class IIIBliquids that are larger than 12,000 gallons in capacity.”

[19] Payment should be sentto: Pay.gov, a service of the U.S. Department of the Treasury, at https://www.pay.gov/public/form/start/67564508or, alternately, Mine Safety & Health Administration, U.S. Department ofLabor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.