**FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004

Telephone No.: (202) 434-9900 / Fax No.: (202) 434-9949

 

September25, 2020

 
| SECRETARY OF LABOR MINE SAFETY  AND HEALTH ADMINISTRATION (MSHA),

                           Petitioner

 

                        v.

 

NUGENT SAND COMPANY,

                           Respondent                                                                          |  

 

  |   | CIVIL PENALTY PROCEEDING

 

Docket No. KENT 2020-0039

A.C. No. 15-18536-505478

 

 

 

Mine: Warsaw Plant

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

** **

**DECISIONAND ORDER**

Before: Judge McCarthy

            This case is beforethe undersigned upon a Petition for the Assessment of Civil Penalty under § 105(d)of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). TheSecretary of Labor’s Conference and Litigation Representative (“CLR”) filed anotice of limited appearance with the penalty petition. It is**ORDERED**thatthe CLR be accepted to represent the Secretary. *Cyprus Emerald Res. Corp.*,16 FMSHRC 2359 (Nov. 1994).

The Secretaryand the Respondent both filed Motions for Summary Judgment pursuant to29 C.F.R. § 2700.67. This matter concerns a single citation, CitationNo. 9424742, issued to Respondent on September 11, 2019, for failing to protectpowerlines against lightning. 30 C.F.R § 56.12065. (“Powerlines, includingtrolley wires, and telephone circuits shall be protected against short circuitsand lightning.”).

            Based on anagreement between the parties to file cross-motions for summary judgment andthe stipulated facts,[1]the undersigned finds that there are no genuine issues of material fact. Forthe reasons set forth below, the undersigned concludes that the Secretary isentitled to a summary decision as a matter of law, affirms the citation andassesses a penalty of $121.00 against Nugent Sand Company. 

**I. STIPULATIONS**

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

1.         Warsaw Plant (Mine ID 15-18536) is a “mine” as defined in §3(h) of the Federal Mine Safety and Health Act of 1977, as amended (hereinafter“the Mine Act”), 30 U.S.C. § 802(h).

2.         NugentSand Company owns, operates, and controls Warsaw Plant. Nugent Sand Company isan “operator” as defined in § 3(d) of the Mine Act, 30 U.S.C. § 802(d).

3.         At all times relevant to this case, the products of the WarsawPlant entered commerce, or the operations or products thereof affectedcommerce, within the meaning and scope of Section 4 of the Mine Act, 30 U.S.C.§ 803.

4.         Operationsof Nugent Sand Company at the Warsaw Plant are subject to the jurisdiction ofthe Mine Act.

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

6.         WarsawPlant is a sand and gravel processing plant located in Gallatin County,Kentucky. As part of its mining process at Warsaw Plant, Nugent Sand Companyutilizes several pieces of electrical equipment including conveyor belts,screens, sand screws, and cone crushers.

7.         Electricalpower is supplied to Warsaw Plant by three-phase 7200 volt powerlines. Each ofthese 7200 volt powerlines is protected against lightning by a lightningarrestor. On each 7200 volt powerline, the lightning arrestor is locatedimmediately prior to the powerline’s connection to a transformer. No additionallightning protection is provided on the 7200 volt powerlines at the minefacility. 

8.         Each7200 powerline connects to a transformer where the voltage is stepped down from7200 to 480 volts. 

9.         Fromeach transformer, 480 volt powerlines supply power to the plant’s electricalequipment. No additional lightning protection is provided on the 480 voltpowerlines. Rather, the 480 volt powerlines are protected against lightning bythe lightning arrestors on the 7200 powerlines.

10.       The7200 volt powerlines, lightning arrestors, transformers, and 480 voltpowerlines are all located on mine property.

11.       The480 volt powerlines are owned by Nugent Sand Company. Nugent Sand Companycontends, and the Secretary neither admits nor denies, that any maintenanceperformed on the 480 volt powerlines is done under the auspices of OwenElectric Cooperative, Inc.

12.       The7200 volt powerlines, lightning arrestors, and transformers are owned andmaintained by Owen Electric Cooperative, Inc. 

13.       OwenElectric Cooperative, Inc. is a public utility. Nugent Sand Company contractswith Owen Electric Cooperative, Inc. to supply electricity to Warsaw Plant. OwenElectric Cooperative, Inc. has not authorized Nugent Sand Company to performrepairs on its 7200 volt powerlines, lightning arrestors, or transformers. 

14.       OnSeptember 11, 2019, the lightning arrestor on one of the three-phases of the7200 volt powerlines was blown and therefore inoperable. As a result, thatphase of the 7200 volt powerlines, the transformer it connected to, and the 480volt powerline on the secondary of that transformer were not protected againstlightning. The lightning arrestors on the other two phases of the 7200 voltpowerlines were operable and therefore those two phases, the transformers thateach of those phases connected to, and the two 480 volt powerlines secondary ofthose transformers were protected against lightning. 

15.       OnSeptember 11, 2019, Mine Safety and Health Administration Inspector SteavenCaudill (“Inspector Caudill”) issued Citation No. 9424742 for a violation ofmandatory safety standard 30 C.F.R. § 56.12065. A copy of Citation No. 9424742was served on an authorized agent of Nugent Sand Company. At all relevanttimes, Inspector Caudill was acting in an official capacity and as authorizedrepresentative of the Secretary of Labor.

16.       On September11, 2019, Nugent Sand Company informed Owen Electric Cooperative, Inc. of theblown lightning arrestor. Employees of Owen Electric Cooperative, Inc. replacedthe blown lightning arrestor. After the blown lightning arrestor was replaced,on September 12, 2019, Inspector Caudill terminated Citation No. 9424742.

17.       NugentSand Company contends that it is not liable for the violation. To the extentNugent Sand Company is liable for the violation, the parties agree andstipulate: 

a.               The violation was not significant and substantial.

b.              The violation was unlikely to result in an injury or illness.

c.               If an injury or illness were to occur as a result of the violation, theinjury or illness could reasonably be expected to be permanently disabling.

d.              One person was affected by the cited hazard.

e.               Nugent Sand Company’s negligence was low.

18.       Paymentof the total proposed penalty of $121.00 for Citation No. 9424742 will notaffect Nugent Sand Company’s ability to continue in business.

19.       Thecertified copy of the R-17 Assessed Violation History Report, attached asExhibit 1, accurately reflects Nugent Sand Company’s violation history atWarsaw Plant for the time period of September 11, 2016 to September 11, 2019.

**II. Background**

            NugentSand Company (“Nugent Sand”) owns and operates the Warsaw Plant, a sand andgravel processing plant in Gallatin County, Kentucky. JS at ¶¶ 1-6. The WarsawPlant is a “mine” as defined in § 3(h) of the Federal Mine Safety andHealth Act of 1977, as amended (“Mine Act”). 30 U.S.C. § 802(h); JSat ¶ 1. As relevant here, the Warsaw Plant entered commerce, or the operationsor products thereof affected commerce, within the meaning and scope of section4 of the Mine Act. 30 U.S.C. § 803; JS at ¶ 3. Consequently,operations of Nugent Sand at the Warsaw Plant are subject to the jurisdictionof the Mine Act. JS at ¶ 5.

            On the mineproperty, three-phase, 7200-volt powerlines supply electrical power to theWarsaw Plant. JS at ¶ 7. Each 7200-volt powerline connects to a transformerwhere the voltage is stepped down, and 480-volt powerlines run from thetransformer to the plant’s electrical equipment. *Id.* at ¶ 7-8. Immediatelyprior to each 7200-volt powerline’s connection to a transformer, each powerlinehas a lightning arrestor. *Id.*. at ¶ 7. This is the only lightningprotection on the 7200-volt powerlines, and there is no additional lightningprotection on 480-volt powerlines from the transformer to the plant’selectrical equipment. *Id.* at ¶ 9.

            Although the480-volt powerlines from the transformer to the plant are owned by Nugent Sand,the 7200-volt powerlines, lightning arrestors, and transformer are all ownedand maintained by Owen Electric Cooperative, Inc. (“Owen Electric”), a publicutility that contracts with Nugent Sand. *Id.* at ¶¶ 12-13. Nugent Sandhas no authority to perform repairs on the 7200-volt powerlines, lightningarrestors, or transformers. *Id.* at ¶ 13.

            On September 11,2019, the lightning arrestor on one of the three phases of the 7200-voltpowerlines was inoperable. Without an operable lightning arrestor, that phaseof the 7200-volt powerline as well as its transformer and a 480-volt powerlinewere not protected against lightning. *Id.* at ¶ 14. On that same date, MSHAInspector Steaven Caudill issued Citation No. 9424742 for a violation ofmandatory safety standard 30 C.F.R. § 56.12065. *Id.*at ¶ 15.

            That same day, NugentSand notified Owen Electric of the inoperable lightning arrestor. On September12, 2019, Owen Electric replaced the inoperable lightning arrestor; andInspector Caudill terminated the Citation. *Id.* at ¶ 16.

            The partiesstipulate that the alleged violation was not significant and substantial and wasunlikely to result in an injury or illness; that the expected injury or illnesswould be permanently disabling and would affect one person; and that NugentSand’s negligence was low. *Id.* at ¶ 17. The parties also stipulatethat the total proposed penalty of $121.00 would not affect Nugent Sand’sability to continue in business. *Id*. at ¶ 18.

**III.Legal Principles and Analysis**

****Under Commission Rule 67(b), 29 C.F.R. § 2700.67(b), a motion for summary decisionshall be granted only if the entire record, including the pleadings,depositions, answers to interrogatories, admissions, and affidavits, show 1)that there is no genuine issue as to any material fact, and 2) that the movingparty is entitled to summary decision as a matter of law. Based on the parties’agreement to file cross-motions for summary judgment and the stipulated facts,the undersigned concludes that there are no genuine issues of material fact andthat this matter is ripe for summary judgment. The parties do not dispute theexistence or the particulars of the violation itself.[2]Consequently, the Secretary and the Respondent agree that the sole issue iswhether, as a matter of law, the Respondent is liable for the violation.

As an initialmatter, the 7200-volt powerlines, the transformer, and the lightning arrestorsare all on mine property, JS at 2, and subject to the regulations of the MineAct. *Old Dominion Power Co.*, 6 FMSHRC 1886, 1890 (Aug. 1984) (*rev’don other grounds* 772 F.2d 92 (4th Cir. 1985)).

However,despite the violation occurring on its mine, Nugent Sand contends that it isnot liable for the violation. Nugent Sand argues that it is not liable for theviolation because Owen Electric owned and exercised control over the 7200-voltpowerlines and lightning arrestors.[3]Resp’t Mot. for Summ. J. at 1**(**“The transformers[] and the associatedlightning arrestors[] are not the property of Nugent Sand” and they are“maintained and serviced by Owen Electric . . . and Owen [Electric]does not authorize Nugent Sand . . . or any contractors. . . to service, maintain, or check them.”). The Secretary argues,in part, that Nugent Sand is strictly liable for the violation occurring at themine. Sec’y Mem. at 6-7 (citing cases).

Strictlyspeaking, this is a question of vicarious liability, and not strict liability. Strictliability operates to find liability even where the actions in question are notnegligent, while vicarious liability operates to find liability even where theactions in question were done by another party. *See W. Fuels-Utah v. FMSHRC*,870 F.2d 711, 713 (D.C. Cir. 1989) (“The general rule . . . is that aperson is not liable for a harm done unless he caused it by his action (*actusreus* ), and did so with a certain intent (*mens rea* ). Strictliability alters this general rule by eliminating the requirement of *mensrea;* one may then be punished for acting in a forbidden way, even ifone was without any particular intent, such as willfulness ornegligence. . . Vicarious liability, on the other hand, alters thegeneral rule by holding a person liable for the act of another—that is, byattenuating the requirement of an *actus reus*.”). Case law involvingthe Mine Act often elides the two concepts of strict liability and vicariousliability. *See, e.g.*, *Allied Prods. Co. v. FMSHRC*, 666 F.2d890, 894 (5th Cir. 1982) (discussing strict liability and stating that “[i]fthe act or its regulations are violated, it is irrelevant whose act[precipitated] the violation”); *Cyprus Indus. Minerals Co. v. FMSHRC*, 664F.2d 1116, 1120 (9th Cir. 1981) (“Mine owners are strictly liable for theactions of independent contractor violations under” the Mine Act.).

Therefore, thequestion is whether Nugent Sand is vicariously liable for a violation occurringunder the control of Owen Electric while operating on the mine. This questionmust be answered in the affirmative. For although the case law often elides theconcepts of strict and vicarious liability, the case law is clear as to the liabilityof mine operators for actions done by third parties on the mine. *W.Fuels-Utah*, 870 F.2d 711 at 713; *Allied Prods. Co. v. FMSHRC*,666 F.2d at 894; *Cyprus Indus.*, 664 F.2d at 1120. Not only is amine operator vicariously liable for the actions of an independent contractor,but also for the acts of unknown third parties. *Miller Mining Co., Inc. v.FMSHRC*, 713 F.2d 487, 491 (9th Cir. 1983) (“It is of no consequence that [theoperator] may have been the innocent victim of an unrelated party’s desire, forwhatever reason, to get the mine back in production. The Fifth Circuit recentlyrecognized the inherent danger of mines, and held any failure to comply with aregulation under the Act would result in a citation to the operator. Imposing akind of strict liability on employers to ensure worker safety, the courtpointed out there are no exceptions for fault, only harsher penalties forwillful violations.” (citations omitted)). In short, “when a violation of amandatory safety standard occurs in a mine, the operator is automaticallyassessed a civil penalty. When a violation occurs, a penalty follows.” *Asarco,Inc.-Nw. Mining Dept. v. FMSHRC*, 868 F.2d 1195, 1197 (10th Cir. 1989); *seealso Ames Constr., Inc. v. FMSHRC*, 676 F3d 1109, 1112 (D.C. Cir. 2012) (“Wheresupervision or control of a distinct aspect of the mining activity is farmedout to a firm different from the principal production-operator, refusal toapply the act’s liability without fault provision would thwart the act'spurposes.”); *Sec’y of Labor v. Twentymile Coal Co.*, 456 F.3d 151, 155(D.C. Cir. 2006) (*Twentymile Coal II)* (“[T]he owner of a mine is liablewithout regard to its own fault for violations committed or dangers created byits independent contractor .”),*rev’g* 27 FMSHRC 260 (Mar. 2006) (*TwentymileCoal I*).

The case lawalso speaks to the reasoning behind this vicarious liability. The Commissionhas stated as follows: 

It bears emphasis that the miners of an independentcontractor are invited upon the property of the mine owner to perform workpromoting the interests of the owner. A mine owner cannot be allowed toexonerate itself from its statutory responsibility for the safety and health ofminers merely by establishing a private contractual relationship in whichminers are not its employees and the ability to control the safety of itsworkplace is restricted.

*Republic Steel Corp.*, 1FMSHRC 5, 11 (Apr. 1979). Although there is no evidence that Nugent Sandmaintains its contractual relationship with Owen Electric for the purposes ofavoiding liability, this relationship nonetheless does not absolve Nugent Sandof its liability for actions occurring at the mine.[4]

            Nugent Sand allegesthat it cannot be held liable for the actions of Owen Electric because NugentSand did not exercise control over the transformers. Resp’t Mot. for Summ. J.at 1 (“Owen [Electric] does not authorize Nugent Sand . . . toservice, maintain, or check” the transformers.). On at least two occasions, theCommission has accepted such an argument; and on both occasions the Commissionwas reversed on appeal. *Twentymile Coal II*, 456 F.3d 151; *Brock v.Cathedral Bluffs Shale Oil Co.*, 796 F.2d 533 (D.C. Cir. 1986) (*CathedralBluffs II)*, *rev’g* 6 FMSHRC 1871 (Aug. 1984) (*Cathedral Bluffs I*)**. 

            In *CathedralBluffs*, the Commission held that the Secretary must satisfy the Secretary’sown Enforcement Guidance in order to cite the owner-operator for violativeactions by an independent contractor. *Cathedral Bluffs I*, 6 FMSHRC at1873. Discussing control, the Commission held that, under the Guidance, anowner-operator can be found liable for the actions of an independent contractorif there is a level of control that creates a “functional nexus” beyond a mere contractualrelationship. *Id.* at 1876. The Circuit Court for the District ofColumbia reversed the Commission’s decision. *Cathedral Bluffs II*, 796F.2d at 539. Specifically, the D.C. Circuit ruled that the Guidance was apolicy and not a binding regulation.[5]The D.C. Circuit further ruled that, because the Guidance was not binding, “theSecretary retained his discretion to cite production-operators as he saw fit.” *Id.*at 538. 

            The Commissionlater applied the D.C. Circuit’s decision in *Cathedral Bluffs II* incases such as *Mingo Logan*. *Mingo Logan Coal Co.*, 19 FMSRHC246 (Feb. 1997). In *Mingo Logan*, the Secretary cited both an independentcontractor and the mine owner-operator for the failure of an employee of theindependent contractor to have adequate training. In ruling that theowner-operator could be held liable for the inadequate training of an employeeof an independent contractor, the Commission affirmed that “MSHA may hold MingoLogan, because of its operator status, 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.” *Id.* at 249 (citing *CyprusIndus. Minerals*, 664 F.2d at 1119 (“Mine owners are strictly liable for theactions of independent contractor violations.”); *Bulk Transp. Servs., Inc.*,13 FMSHRC 1354 (Sept. 1991) (“[T]he Act’s scheme of liability. . . provides that an operator, although faultless itself, may beheld liable for the violative acts of its employees, agents and contractors.”)).

But *CathedralBluffs II* was not the last time the D.C Circuit reversed the Commission onthis issue. In *Twentymile Coal II*, the D.C. Circuit reviewed theCommission’s determination that the Secretary had abused her discretion whenshe issued a citation for a mine owner-operator for the actions of anindependent contractor. As relevant here, the Commission ruled that citing theowner-operator was an abuse of discretion because the independent operator wasin the best position to prevent the violation, the owner-operator did not have“significant, continuing” involvement in the work that resulted in theviolation, and the owner-operator did not contribute to the violation, eitherthrough action or significant omission. *Twentymile Coal II*, 456 F.3d at 154(quoting *Twentymile Coal I*, 27 FMSHRC at 268-273).[6]

In rejectingthese arguments, the D.C Circuit made “relatively short work of the question ofthe Secretary’s authority to cite owner-operators for violations committed bytheir contractors.” *Id.* After reviewing case law, the D.C. Circuit affirmedthat “liability under the Mine Act is without regard to fault” and “theargument that only an operator directly responsible for the violation. . . can be held liable . . . must be rejected.” *Id.*at 155 (quoting*Int’l Union, United Mine Workers of Am.*, 840 F.2d 77, 84(D.C. Cir. 1988)). 

For the samereasons in *Cathedral Bluffs II* and *Twentymile Coal II*, theundersigned rejects Nugent Sand’s argument that its lack of control insulatedit from liability. 

            The parties agreethere was a violation at the mine that Nugent Sand *owns, operates, andcontrols*. JS at ¶ 2. Consequently, Nugent Sand is liable for the violation asstated in the Citation.

**IV.Penalty Assessment**

****Itis well established that****the 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 this violation, the undersigned consideredthe following stipulated facts: 1) the Respondent’s history of violationsof this standard in the 15 months prior to the accident (JS, Attach. 1 at 1);2) the Respondent’s size as an operator who worked only 17,678 hours atthe mine in 2019 (MSHA, *Mine Data Retrieval System*, https://www.msha.gov/mine-data-retrieval-system(searchable by mine name)); 3) the Respondent’s low level of negligence (JSat ¶ 17); 4) that the penalty will not have an effect on the Respondent’sability to continue in business (*id.* at ¶ 18); 5) that any injury orillness would be unlikely and would be expected to result in permanentlydisabling injuries affecting one person (*id.* at ¶ 17); and 6) the timelygood-faith abatement (*id.* at ¶ 16 (showing the termination of theCitation the day following its issuance)).

Based upon the undersigned’sconsideration of the section 110(i) penalty criteria and the deterrent purposesof the Act, the undersigned assesses a penalty of $121.00. This amount is theresult of an independent determination by the undersigned of the statutorycriteria and a penalty amount that would respond to the seriousness of theviolation and would deter future violations. *American Coal Co. v. FMSHRC*,933 F.3d 723, 728 (D.C. Cir. 2019). 

 

**III. CONCLUSION**

For the foregoing reasons, the Respondent’s Motion for Summary Judgmentis **DENIED**, the Secretary’s Motion for Summary Judgment is **GRANTED**,and****Citation No. 9424742 is **AFFIRMED**, as issued. It is further **ORDERED**that the Respondent pay a total penalty of $121.00 within thirty days of thisorder.[7]

 

 

 

 

 

 

/s/Thomas P. McCarthy

                                                                        ThomasP. McCarthy

                                                            AdministrativeLaw Judge

 

 

 

 

 

 

 

Distribution:

 

Megan A. Carrick

U. S. Department of Labor

Office of the Solicitor

618 Church Street

Suite 230

Nashville, TN 37219-2440

carrick.megan.a@dol.gov

 

Damon E. Hughes

Nugent Sand Company

1833 River Road

P.O. Box 6072

Louisville, KY 40206

dhughes@nugentsand.com

----

[1] In this Decision, “Sec’y Mem.” refers to theSecretary’s Memorandum of Points and Authorities in Support of his Motion forSummary Decision, “Resp’t Mot. for Summ. J.” refers to Respondent’s Motion forSummary Judgement, and “JS” refers to the Joint Stipulations.

[2] Nugent Sand Company included a letter from OwenElectric with its Motion for Summary Judgment.  Nugent Sand Company presentsthis letter to address the gravity and level of negligence of the violation. However,the parties have stipulated as to the levels of gravity and negligence, andthis letter does not contradict those stipulations. Consequently, this letterdoes not present any genuine dispute over material facts. *Anderson v.Liberty Lobby*, 477 U.S. 242, 248 (1986) (“Only disputes over facts that mightaffect the outcome of the suit under the governing law will properly precludethe entry of summary judgment. Factual disputes that are irrelevant orunnecessary will not be counted.”).

 

[3] Nugent Sand Company also argues that it has agrounding system that “provides protection to personnel,” but this argumentgoes to the negligence and gravity of the violation, not the question ofliability. Resp’t Mot. for Summ. J. at 2.

** **

[4] Moreover, the undersigned notes that Nugent Sandcould have used this contractual relationship to indemnity itself. *See, e.g.*,*Consolidation Coal Co.*, 26 FMSHRC 138, 139 (Mar. 2004); *W-P Coal Co.*,16 FMSHRC 1407, 1408 (July 1994).

[5] Even were Nugent to rely on the Enforcement Guidanceas a binding regulation, the Guidance permits the Secretary to cite anowner-operator for the actions of an independent contractor when theowner-operator’s miners are exposed to the hazard. *Cathedral Bluffs II*,796 F.2d at 245 (quoting 45 FR 44,497). Here, the parties have stipulated that oneminer would be affected by the hazard, and the Citation indicates that theblown lightning arrestor “exposes employees around the plant to electricalshock hazards and potential flash injuries.” Citation No. 9424742. 

[6] It should also be noted that the administrative lawjudge found that the owner-operator “did not have direct control over the citedequipment.” *Twentymile Coal I*, 6 FMSHRC at 274 (quoting the ALJdecision). 

[7] 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.