**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICE OF THE CHIEF ADMINISTRATIVELAW JUDGE

721 19th ST.SUITE 443

DENVER, CO 80202-2500

TELEPHONE:303-844-5266 / FAX: 303-844-5268

 

 

** **

**DECISION ANDORDER**

 

Appearances:              GregoryW. Tronson, U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd,Suite 515, Denver, CO 80204-3516

 

                                    KennethJ. Polka, CLR, U.S. Department of Labor, MSHA, P.O. Box 25367, DFC, Denver, CO80225

 

                                    ChristopherG. Peterson, Fisher & Phillips LLP, 1125 17th Street, Suite 2400, Denver,CO 80202

 

Before:                                    Judge Simonton 

 
    - INTRODUCTION

** **

This case is before me on apetition for assessment of civil penalty filed by the Secretary of Labor,acting through the Mine Safety and Health Administration, against Thunder BasinCoal Company, LLC, (“Respondent”), pursuant to the Federal Mine Safety andHealth Act of 1977 (Mine Act), 30 U.S.C. § 801.[1]This case involves one Section 104(a) citation with a total proposed penalty of$3,006.00. 

 

The parties presented testimony anddocumentary evidence regarding the citation at issue at a hearing held onAugust 23, 2023, in Gillette, WY. MSHA Inspector Errol Scott Arnett testifiedfor the Secretary. Equipment Dump Manager James Braswell, Equipment Operatorand Miner’s Representative Patricia Gregory, Safety Department Member andEquipment Operator Kayla Schipman, Safety Manager Lynn Busskohl, ProductionSuperintendent Ryan Woodard, and Production Superintendent Bradley Erdmantestified for the Respondent. After fully considering the testimony and evidencepresented at hearing and the parties’ post-hearing briefs, I **VACATE**CitationNo. 9151820.

** **

**                                          II.        ****STIPULATIONS OF FACT**

At hearing, the parties agreed tothe following stipulations:

 

1.     TheRespondent is an “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. §803(d), at the Mine where the contested citations in these proceedings wereissued.

 

2.     TheThunder Basin Coal Company LLC Black Thunder Mine is a “mine” as defined in §3(h) of the Mine Act, 30 U.S.C. § 802(h).

 

3.     The mineis subject to the jurisdiction of the Mine Act.

 

4.     Theseproceedings are subject to the jurisdiction of the Federal Mine Safety andHealth Review Commission and its designated Administrative Law Judges pursuantto Sections 105 and 113 of the Mine Act.

 

5.     Payment ofthe total proposed penalty in this matter will not affect the Respondent’sability to continue in business.

 

6.     Theindividual whose name appears in Block 22 of the citation in contest was actingin an official capacity and as an authorized representative of the Secretary ofLabor when the citation was issued.

 

7.     Thecitation contained in this matter was properly issued and served by a dulyauthorized representative of the Secretary of Labor upon an agent of Respondentat the date, time, and place stated in the citation, as required by the MineAct.

 

Tr. 7. 

**                  III.        ****FINDINGS OF FACT AND SUMMARY OF TESTIMONY**

** **

Thunder Basin CoalCompany, LLC, operates the Black Thunder Mine, a large-scale surface coal mine.Tr. 334. On September 23, 2022, MSHA Inspector Errol Scott Arnett arrived atthe mine to conduct a regular EO-1 inspection. Tr. 25. While inspecting thesite, he was accompanied by safety manager Lynn Busskohl and miner’srepresentative Patricia Gregory. Tr. 25-26. This was the inspector’s firstvisit to the facility. Tr. 33.

 

Inspector Arnett issuedCitation No. 9151820 because he believed that the ground control plan wasinadequate for failing to address the hazards of berm bumping or drivingthrough a berm. Tr. 51-54; Ex. GX-1. He testified that he observed two sets oftire tracks from different pieces of equipment imprinted into the soil of theberm. Tr. 33-34. One set of tracks indicated what he termed a “normal push”:the dozer pushed material perpendicular to the berm, pushing the material overthe berm or creating a new berm. Tr. 34-35. The other tire track indicated thatthe dozer drove on or near the flat, making an “abrupt swooping” motion to theright, leaving an impression into the berm all the way to the top of the berm.Tr. 35, 56; Ex. GX-3-2, GX-3-4. In the inspector’s opinion, this was not normalpractice. Tr. 36. Because the dozer was driving on uncompacted material nearthe top of the berm, he believed there was potential for the weight of thevehicle to tilt it over, leading to fatal injuries. Tr. 42-45. Arnett didobserve some superficial cracks in the soil but that did not give him muchconcern. Tr. 56, 163; GX-3-7. On the back side of the berm there was roughly anangle of repose of 30-35 feet in vertical height. Tr 58. GX – 3-11. In summary,he believed that the berm had no substantial compaction and that there was noway of stopping breakthrough. Tr. 111.

 

In addition to the dozertire tracks on the berm, there were also haul tire tracks imprinted into theberm and a depression roughly 18 or 19 inches deep that trucks had been makingin the toe of the berm Tr. 46, 56-57, 58; Ex. GX-3-9. This depression indicatedthat haul trucks were stopping in a weak spot in the foundation of the dumpinglocation and causing sinkage. Tr. 46, 112, 169. Rather than stopping in theberm, the inspector believed the best practice would be to dump the load infront of the berm and then push the material into the existing berm, therebycreating a new berm. Tr. 48-49. When the inspector questioned the mine’spersonnel on the issue of stopping in the berm, he was informed that it was notcommon practice to stop in the berm and drivers are instructed to stop short ofthe berm. Tr. 51; Ex. GX-2-5. 

 

As a result of theseconcerns, the inspector requested to see the mine’s ground control plan. Tr.51-52. After reviewing the plan, the inspector determined that it wasinsufficient, based in part on his own experience reviewing ground controlplans. Tr. 52-53. The only statement pertaining to berms stated that “’[b]ermsare maintained at the outer edge of truck dumps to prevent overtravel oroverturning.’” Tr. 53; Ex. GX-10-4. The inspector believed that this was notenough to train or enough to prevent the possibility of rollovers,breakthroughs, and push-throughs. Tr. 54. He supported this assertion with thefact that the mine had an incident where a haul truck overturned when it backedthrough a berm on June 3, 2022, although he was unaware of this previousincident when he issued the citation. Tr. 60-62; Ex. GX-4. He testified thatthe best practice to prevent overturning fatalities is to dump material from asafe location and push the material over the edge with a bulldozer. Tr. 71.

 

To further support thecitation, the inspector referenced the MSHA inspection handbook, whichinstructs inspectors to look for signs of unsafe dumping practices such asbacking up at an angle, hitting or traveling up the berm, and excessive brakingor stopping and turning close to the edge before dumping. Tr. 80; Ex. GX-7-12,GX-7-13. The guidebook also instructed to ensure that equipment operators dumpshort “if there is uncertainty about the stability of the dumping location.”Tr. 80. Other educational materials stated that berms are meant to prevent avehicle from going over a berm but that they are not designed to be bumped orhit. Tr. 100; Ex. GX-8. The inspector also referenced MSHA fatality alertsinvolving rollover accidents and berms that could have been prevented using adump short and push procedure. Tr. 69-73, 102; Ex. GX-5, GX-6. This researchwas conducted after the citation had already been issued. Tr. 71-73, 87.

 

In response to thecitation, the inspector held conversations with the operator to update andsubmit a ground control plan that addressed his concerns with the berm and thereason why he issued the citation. Ultimately, he elected to cite the groundcontrol standard rather than the berm standard in order to prompt change in thelanguage of the ground control plan. Tr. 175. 

 

James Braswell, a dumpoperator with fifteen years’ experience, testified for the Respondent. Tr.179-80. He had been running the dump on the day of the citation and had beenoperating the dozer whose rubber tire track was visible in the berm. Tr.179-80, 184. Braswell testified that he had looked at the berm with theinspector and had explained to the inspector that when he was rebuilding theberm, he sometimes used a feathering motion because the dozer’s blade couldarticulate. Tr. 182. It was part of his practice to travel up the berm a bit tofill in any low spots and maintain a stable berm. Tr. 184. Further, the GPS inhis dozer provided information regarding his location, elevation, and angle.Tr. 186-87. He had never been instructed not to do this feathering motion, andinstead had been trained to move the material where it is needed. Tr. 209.

 

Regarding the materialthat comprised the berm, Braswell described it as a “soft virgin material” thathasn’t been compacted and that heavy haul trucks are likely to leave animpression at the tow of the berm. Tr. 197, 199-202, 216. This compactionalways occurs at the edge of the berm, and the cracks in the berm itself aretiny superficial cracks. Tr. 201, 222. When there are indications of bermfailure, cracks will occur in the front of the berm and the berm will startopening up. Tr. 221. On the day of the citation, he did not see any instabilityin the berm and that the dump was solid. Tr. 190, 215. Further, if the dozerwere to fall through the berm, it would just sink into the soft material andwould not flip over because the weight of the vehicle is in the back half. 90percent of the weight is in the rear of the machine. It’s fairly light in thefront end. There was one tire up on the berm which barely made an impact, maybeone to two inches in depth. Tr. 211-13, 246; RX 6. In addition, the length ofthe rubber tire dozer is almost 30 feet long. If there was a breakthrough thedozer would just roll through it or settle in, not flip. Tr. 235-236; Ex. RX6. LynnBusskohl, a member of the mine management who observed the inspection,corroborated this in his own testimony by reiterating that the weight of thedozer is in the back, as stated in the vehicle’s manual. Tr. 302-04; RX 6.

 

Patricia Gregory, aminer’s representative, and Kayla Schipman, an employee with the safetydepartment, testified for the Respondent about the berm’s condition on the dayof the citation. Gregory accompanied the inspector and stated that she was notoverly concerned with seeing the rubber tire marks on the berm and that she didnot see any evidence of a haul truck powering up or riding up on the berm. Tr.255-59. The haul truck’s contact with the berm was incidental, and that thetrucks are going slowly enough to feel when they make contact with the berm.Tr. 263, 265-66. She had no concerns that the berm would fail. Tr. 259.Schipman, who did not accompany the inspector but saw the berm when she wascalled to bring the mine’s ground control plan to the area, testified that shethought the berm looked good with adequate height and thickness, and that itwas not unusual to see tire tracks in the berm. Tr. 270-71, 291. She alsotestified that she had driven haul trucks at the mine before, and that when thetruck approaches the berm it is going very slow and that drivers are instructedto look for conditions in the berm that would indicate cracks or weaknesses.Tr. 272-73. Trucks are instructed to stop backing up when they are in the toeof the berm, and when the trucks just touch the berm, there is a feeling ofresistance. Tr. 275, 278. Busskohl also confirmed that this is the way haultrucks approach the dump in the mine. Tr. 299.

 

Two productionsuperintendents, Ryan Woodard and Bradley Erdman, testified for the Respondent.Woodard provided additional information regarding the composition of the berm,explaining that it was made out of a clay loam material that is safe for haultrucks to compact as they advance a dump. Tr. 362. He also did not have anyconcerns about the berm’s integrity because if there had been vehicles ridingup on the berm, it would have knocked part of the berm away. Tr. 361. Heobserved that the berm was “perfectly in place” with no material sloughing orfalling away. Tr. 361-62. If there had been sloughing, the procedure would havebeen to dump short. Tr. 365. Erdman supported the prior witnesses’ testimonyabout the berm’s condition, saying that he believed the berm had good integrityand that there was nothing to give him pause. Tr. 378, 382. He saw the tiretracks but did not think that they compromised the integrity of the berm andthat the contact points were normal. Tr. 379. 

 

In response to hisprevious statements in the inspector’s notes, Woodard confirmed that he hadtold the inspector that it was not a common practice for the rubber tire trackto be that high on the berm. Tr. 363-64. He did testify that the dozer is thereto make the berm safe for other pieces of equipment and it was designed to beoperated in that manner. Tr. 364, 370. He further explained that the dozeroperator has to ride up on the berm in order to build it up, and it is notnormal to see tire tracks on the berm because material falling out of thedozer’s blade will cover the tracks. Tr. 367-68. The blade is concave so itholds some of the material. As it comes back down the rest of the materialfalls out of the blade and covers up the tracks which also helps fill incompacting as you do it. Tr. 368. The weight of the dozer is in the back of themachine, there was no danger of the dozer overturning, and the dozer operatorwas using the machine as it was intended to be used. Tr. 370-72. 

** **

**                                                        IV.        ****DISPOSITION**

 

During his inspection onSeptember 23, 2022, Arnett issued 104(a) Citation No. 9151820 which alleged:

 

There are significant tire markings pressedinto the existing soil berm located at the 5 South dump. The operator is usinga Cat 854 G RT dozer to push material over the spoil dump. There are two setsof tracks against the berm, from the RT dozer and haul trucks. This creates anover-turn hazard and exposes the miner to fatal injuries from blunt forcetrauma and crushing injuries. 

 

A new Ground Control plan must besubmitted addressing the dumping procedures. The current ground control plan isdated March 26, 2018. 

 

Ex. GX-1-1.

 

Arnett designated thecitation as a significant and substantial violation of30 C.F.R. § 77.1000 that was reasonably likely to cause an injury thatcould reasonably be expected to be “fatal,” would affect one miner, and wascaused by Respondent’s moderate negligence. Tr. 107-09; Ex. GX-1-1. 

 

TheCommission has long held that “[i]n an enforcement action before theCommission, the Secretary bears the burden of proving any alleged violation.” *JimWalter Res., Inc.*, 9 FMSHRC 903, 907 (May 1987); *Wyoming Fuel Co.*,14 FMSHRC 1282, 1294 (Aug. 1992). The burden of showing something by a“preponderance of the evidence,” the most common standard in the civil law andthe standard applicable here, simply requires the trier of fact “to believethat the existence of a fact is more probable than its nonexistence.” *RAGCumberland Res. Corp.*, 22 FMSHRC 1066, 1070 (Sept. 2000); *Garden CreekPocahontas Co.*, 11 FMSHRC 2148, 2152 (Nov. 1989). 

 

30C.F.R. § 77.1000 states that “[e]ach operator shall establish and follow aground control plan for the safe control of all highwalls, pits and spoil banksto be developed after June 30, 1971, which shall be consistent with prudentengineering design and will insure safe working conditions. The mining methodsemployed by the operator shall be selected to insure highwall and spoil bankstability.” 

 

This standard requireseach operator to establish and follow a ground control plan that provides safeworking conditions at the mine site. “The requirement to “insure safe workingconditions” is a mandate over and above the particular requirements containedin the plan itself, which means although an operator may comply with all partsof its submitted and acknowledged plan, it may still be in violation of thestandard if the plan does not provide a safe workplace.” *Central AppalachiaMining*29 FMSHRC 430, 437 (June 2007)*.* In order to find that aground control plan is inadequate, there must first be a hazard or unsafecondition present that is not addressed or that is not addressed sufficientlyin the ground control plan. It is undisputed that at the time of the citation,the only statement in the ground control plan pertaining to berms was “[b]ermsare maintained at the outer edge of truck dumps to prevent overtravel oroverturning” and that the Respondent was not in violation of this provision aswritten. Ex. GX-10-4. 

 

The facts of the case, theoverall testimony of the witnesses and the preponderance of the evidence do notindicate that such a hazard was present to render the ground control plandeficient. There were no signs of sloughing or cracking in the berm, and theinspector stated in his testimony that he was not concerned with thesuperficial cracks visible in the toe of the berm. I credit each of theRespondent’s witnesses who consistently and without equivocation credibly testifiedthat the berm appeared stable and that they did not consider the berm to bedangerous in any way. Notably, this included Patricia Gregory, whoseresponsibilities include miner safety as a miner’s representative. Further, thetestimony indicates that management was aware of the dump short and push methodadvocated for by the inspector but did not believe that the berm conditions, atthat time, warranted employing this method when dumping. Finally, I placelittle weight on the prior tipping incident that had occurred at this minebecause it is apparent it occurred due to operator error rather thandeficiencies in Respondent’s ground control plan. The inspector also did notrely on this prior incident when deciding to cite the Respondent for aninadequate ground control plan. 

 

While the dozer operatoradmitted that he had driven onto the berm and was the source of the rubber tiretracks imprinted there, testimony and evidence indicate that the dozer wasmeant to perform these maneuvers. The dozer’s blade is articulated, whichallows the operator to carry out feathering motions with the blade. Both the equipmentmanual and the testimony from the operator as well as mine management statethat the weight of the vehicle is in the back and not in the vehicle’s blade. Further,the dozer was equipped with a GPS that provided the operator with informationregarding his position, reducing the chance that he would drive on top of theberm. Based on the vehicle’s features, I find that the dozer’s operation inthis manner to not be hazardous and that there is minimal, if any risk that thevehicle will overturn. While the production superintendent acknowledged he toldthe inspector at the time of the citation that it was not common practice forthe rubber tire to run up on the berm like that, that does not detract from theevidence that the articulated blade and dozer is designed for this type of workin order for it to make the berm safe for other equipment. 

 

Concerning the haultruck tire marks, I find the testimony regarding the composition of the berm’smaterial by the Respondent’s witnesses to be credible. The material wasdescribed as a virgin clay material that is uncompacted and that truck tiresare likely to leave an impression in it. The inspector did not refute this anddid not testify regarding his understanding of the material. It was also hisfirst visit to the mine when he issued the citation. The Respondent’s witnessesare likely to have a greater understanding of the berm’s composition and theground conditions present at the time of the citation. While the haul trucktires may be incredibly close to the berm, based on the evidence presented itis not sufficient to demonstrate that the haul truck tires were rode up on theberm or otherwise generated a hazardous condition.

 

            TheSecretary did not prove by a preponderance of the evidence that theRespondent’s ground control plan required updating to insure safe workingconditions. I accept that when ground conditions indicate sloughing or materialcracks dumping short and pushing is the best method to prevent fatalities fromvehicles tipping over or driving through a berm. However, those conditions werenot present at the time the citation was written. There is insufficientevidence to demonstrate that the Respondent’s methods of dumping or building upthe berm, in the ground conditions that existed at the time the citation waswritten, were unsafe. Because there is not sufficient evidence of a hazardouscondition that would render the ground control plan inadequate, I vacate thecitation. 

 
    - ORDER

 

It is hereby **ORDERED**thatCitation No. 9151820 is **VACATED.**

 

 

 

 

                                                                                    /s/David P. Simonton

David P. Simonton

Administrative Law Judge

 

 

 

Distribution: (Electronic and Certified mail) 

 

Gregory W. Tronson, U.S. Department of Labor, Office of theSolicitor, 1244 Speer Blvd, Suite 515, Denver, CO 80204-3516, Tronson.gregory@dol.gov

 

Kenneth J. Polka, CLR, U.S. Department of Labor, MSHA, P.O.Box 25367, DFC, Denver, CO 80225, polka.kenneth@dol.gov

 

Christopher G. Peterson, Fisher & Phillips LLP, 1125 17thStreet, Suite 2400, Denver, CO 80202, cpeterson@fisherphillips.com

----

[1]In this decision,the joint stipulations, transcript, Secretary’s exhibits, and Respondent’sexhibits are abbreviated as “Jt. Stip.,” “Tr.,” “Ex. GX–#,” and “Ex. R–#,”respectively.