**FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

 

OFFICE OF THE CHIEFADMINISTRATIVE LAW JUDGE

1331 PENNSYLVANIA AVE., N.W.,SUITE 1400

WASHINGTON, DC 20004-1710

TELEPHONE: 202 434-9987 / FAX202 434-9949

 

 

 
| ACTING SECRETARY OF LABOR

 MINE SAFETY AND HEALTH        

 ADMINISTRATION (MSHA),

      Petitioner,

 

                        v.

 

NALLY & HAMILTON  ENTERPRISES,

  INC.,

      Respondent.                                             |   |   | CIVIL PENALTY PROCEEDING

 

 Docket No. KENT 2022-0079

 A.C. No. 15-19884-553944

 Docket No. KENT 2022-0084

 A.C. No. 15-19884-556030

 Mine: Colmar      |
|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**DECISION AND ORDER AFTER****HEARING**

 

Before: Judge Young

 

Appearances:              Thomas J. Motzny, Esq., and TaylorD. Cooper, Esq., U.S. Department of Labor, 618 Church Street Suite 230, Nashville,Tennessee 37219, for the Petitioner

 

                                    Joseph H.Mattingly, III, Esq., Joseph H. Mattingly III, PLLC, P.O. Box 104 W. Main St.,Lebanon, Kentucky 40033, for the Respondent

 

S.Thomas Hamilton, Esq., Saltsman, Willett, Deaton & Hamilton, P.S.C., 212 E.Stephen Foster Avenue, Bardstown, Kentucky 40004, for the Respondent

 

**SUMMARY**

 

Citation No. 9138188 –Failure to Follow Ground Control Plan (30 C.F.R. § 77.1000)

 

Fact of violation                     Affirmed                     pp.12–14 (Slip op.)

S&S                                         Yes                              p. 14

Negligence                              Moderate                     pp.14–15

Unwarrantable Failure            No                               pp.15–20

 

Order No. 9138189 – Failureto Perform Adequate On-Shift Exam. (30 C.F.R. § 77.1713(a))

 

Fact of violation                     Vacated                       pp.20–24

 

**INTRODUCTION**

 

Thiscase is before me pursuant to section 104(d) of the Mine Safety and Health Actof 1977 (“Mine Act” or “Act”).[1]On January 11, 2022, two miners were driving a pickup truck on the main mineroad at the Colmar Surface Mine in Bell County, Kentucky, where they worked forRespondent Nally & Hamilton Enterprises, Inc. A tree fell from the top of ahighwall and crushed the cab of their vehicle. One miner was killed, and theother suffered catastrophic injuries. *See infra* Section I.A. 

 

Afterinvestigating the accident, the Mine Safety and Health Administration (“MSHA”)issued three citations for failure to follow the mine’s ground control plan,failure to perform an adequate on-shift examination for hazards, and failure toreport the accident immediately to MSHA.[2]Ex. S-1, S-2, S-4. 

 

Forthe reasons set forth below, I find that the operator did not follow its groundcontrol plan. I conclude that the violation was significant and substantial(“S&S”) with moderate negligence but was not the result of the operator’sunwarrantable failure. 

 

I alsofind that the hazard in this case could not have been discovered from a daily on-shiftexamination required under 30 C.F.R. § 77.1713(a) of the active working areasof the mine and vacate the order finding that examination to have beeninadequate. 

 

# I.              FACTS

 

## A.    TheAccident

 

Respondentoperates the Colmar Surface Mine in Bell County, Kentucky. On January 11, 2022,miners Joshua Pendleton and Cecil Todd Collett wereworking the first shift at the Colmar Mine, which began at 7 AM and normallyended at 5 PM. Tr. Vol. I, 23. 

 

Pendletonand Collett were transporting blasting materials from the operator’s powdermagazine to a blasting site. Tr. Vol. I, 25. They were traveling in a pickuptruck on the main mine road at around 3 PM when a tree fell on the pickup truck,crushing the cab. Tr. Vol. I, 25–27.  MSHA estimated that the tree wasapproximately 67 feet tall and weighed more than 6,000 pounds. Tr. Vol. I, 100–01.

 

Collettwas killed in the accident.  Tr. Vol. I, 109. Pendleton’s serious injuriesincluded a cracked sternum, fractured femur, a “crushed” right lung, a rupturedhamstring, and serious damage to his hip and leg, including muscles which were“tor[n] loose” from the top of his leg. Tr. Vol. I, 27.  Pendleton was insevere pain and screamed for help for Collett before passing out from the pain.Tr. Vol. I, 26. 

JohnBrown, a miner operating a bulldozer about 500 to 1,000 feet from the site ofthe accident, heard the tree fall and looked up. Tr. Vol. I, 56-57. He saw thatthe tree had struck a pickup truck and ran to help. Tr. Vol. I, 57. When he gotto the truck, he checked the driver’s side and found Collett unresponsive. Tr. Vol.I, 59. Brown did not know that another miner was in the truck until he heardPendleton call out to him. Tr. Vol. I, 59. 

 

Brownwas not able to get the truck door open to free Pendleton. Tr. Vol. I, 59. Heran back to his bulldozer, called for help on the mine radio, and got a bar anda chain to try to free Pendleton. Tr. Vol. I, 59. 

 

Pendletonwas told that it took other miners 45 minutes to extricate him and Collett fromthe truck. Tr. Vol. I, 27. MSHA Special Investigator Silas Brock,[3]who was sent to investigate the accident, said he was told the mine had tiedchains to the roof of the truck and lifted it with a piece of equipment to freeCollett and Pendleton. Tr. Vol. I, 68, 94. 

 

Thetree had fallen from a stand of four trees near the edge of the highwall. Tr.Vol. I, 83, 190. The highwall was approximately 50 feet tall. Tr. Vol. I, 85. 

 

Beforethe accident, nobody at the mine seemed to take much notice of the trees lefton the highwall. *See*Tr. Vol. I, 37–38. Pendleton did say that it wouldhave been “unusual” for trees to be left close to the edge of a highwall. Tr. Vol.I, 31. But nobody from MSHA seemed to have noted the trees either. For example,MSHA Inspector David Faulkner— who was in the process of performing an E01inspection of the Colmar Mine and had been to the mine multiple times betweenOctober 2021 and the date of the accident—had never expressed concern about thetrees despite traveling past them multiple times. Tr. Vol. I, 213–14, 217–19. 

 

Thefour trees had been left on top of the highwall, between an access road thathad been cut on top of the ridge and the pit that had been mined beyond thetrees. Ex. S-10. The access road was made before the mine opened by a bulldozerto drill “prospect holes” to assess the coal in the underlying seam. Tr. Vol.I, 84–85, 166; Ex. S-10. 

 

Atthe time of the accident, the access road was not regularly accessed by minersfrom below, and no miners went up to work on the access road or on the highwallas part of their regular duties. *See*Tr. Vol. I, 82 (Inspector Brockstating he did not think miners would “regularly access the top of [the]highwall”); Tr. Vol. I, 189–190 (Colmar Mine Foreman Jody Brock stating thehighwall was not one of the areas where miners were “going to be working” atthe time of the accident).  

 

Themining in the area of the accident had taken place in 2021. Tr. Vol. I, 32. Miningin this pit had concluded by mid-August of that year. Tr. Vol. I, 174–75. Atthe toe of the highwall, Respondent had placed rock and dirt that it intendedto use in reclamation. Tr. Vol. I, 36, 170. The material formed an elevated areabetween the main haulage road and the highwall. Tr. Vol. I, 40-41. Witnessesand the attorneys questioning them variably referred to the area where thereclamation spoil had been placed as a “bench,” a “berm,” or a “barricade.” *Seee.g.,* Tr. Vol. II, 72 (Foreman Brock equating the material to “a bench or aberm”); Tr. Vol. II, 31 (in question, an attorney for the Acting Secretaryreferring to the area as “the barricade or the berm”). 

 

Minerstraveled the haulage road daily on their way to the parking lot and whileworking at the mine. Tr. Vol. I, 28, 57–58. Depending on their work, minerswould travel that road from eight to 75 or 80 times per day. Tr. Vol. I, 28. 

 

Theberm was not constructed to serve as a safety bench or with any intent toprevent large objects from falling from the highwall into the road. Tr. Vol. I,36–37. *See also*Tr. Vol. II, 72 (Foreman Brock stating the primarypurpose was reclamation). It did serve as a barricade between the highwall andthe road and effectively prevented smaller objects from falling onto the road. Tr.Vol. I, 43, 49, 139–140. However, the backfill area was not wide enough toprevent trees that could fall from the top of the highwall from landing on theroad. Tr. Vol. I, 101–02. 

 

InspectorBrock was joined in the investigation by two of MSHA’s assistant district managersand a surface inspector.[4]Tr. Vol. I, 66. He described the accident scene as “horrific.” Tr. Vol. I, 67. 

 

The KentuckyState Office of Mine Safety and Licensing conducted its own investigation whileMSHA was on the site. Tr. Vol. I, 71–72. The state agency used a drone to takephotographs of the stand of trees at the top of the highwall and the pit thathad been mined and shared the photographs with MSHA. Tr. Vol. I, 71–72. *Seealso* Ex. S-10, S-11, S-12, S-13, S-14.

 

Itis unclear what exactly caused the tree to fall in this case. Inspector Brock’sopinion, for example, was that the root ball became dislodged, causing the treeto slide down the edge of the highwall and, once it hit the elevated area atthe base of the highwall, fall forward onto the roadway. Tr. Vol. I, 138–39. 

 

Moreover,while much of the evidence in this case was not in dispute, the location of thetree in relation to the edge of the highwall was disputed. The Acting Secretaryargued it was located closer to the edge of the highwall than Respondent. *See*Ex. S-10 (showing both a black circle marked by Inspector Brock and anorange square marked by Foreman Brock indicating the areas where each believedthe tree was located prior to falling); Tr. Vol. I, 81–82; Tr. Vol. II, 79–80, 95–96.**

 

Therewas also a dispute over whether the tree was alive or dead at the time of theaccident. *Compare* Tr. Vol. I, 29 (Pendleton testifying the tree looked“alive,” “was green,” and had visible rings on the inside); Tr. Vol. I, 204–05(Foreman Brock testifying the tree “was alive,” did not have “dead limbs,” andappeared solid); with Tr. Vol. I, 95 (Inspector Brock stating the tree appeared“dried out, seasoned out. There was nothing green about it. You could tell bythe bark it was it was a dead tree.”); Tr. Vol. I, 153 (Inspector Brock statingthe tree was “[d]ry and brittle”). *See also*Ex. S-19 (showing the insideof the tree after the accident).[5]

 

## B.    TheFreeze/Thaw Cycle and the Condition of the Highwall

 

Atthe hearing, witnesses described the effect the “freeze/thaw” cycle can have onthe integrity of the ground on and around highwalls. *See* Tr. Vol. I, 68–69(Inspector Brock), 183–84 (Foreman Brock); Tr. Vol. II, 43 (Consulting Engineerand Respondent’s expert witness Dayne Willis). As the soil freezes and thaws,it expands and contracts, and the changes in temperature can create fissures inthe rock and can separate soil from tree roots and rocks. Tr. Vol. I, 68–69;Tr. Vol. II, 43. This can create mud slides and other unplanned earth movement.Tr. Vol. I, 68–69, 97–98. 

 

Inthe days and weeks leading up to the accident, witnesses reported there werewintry conditions with cold weather, rain, and snow. Tr. Vol. I, 23–24, 55–56, 182–83,As Inspector Brock stated, there was “a lot of freezing and thawing” at thattime of year. Tr. Vol. I, 68. Moreover, witnesses testified and evidence waspresented showing there was ice on the highwall at the time of the accident.Tr. Vol. I, 97–98, 183; Ex. S-20, S-21. 

 

Theterrain in the area from which the tree had fallen was very steep, butphotographs taken from the ground showed that the contour was not discerniblefrom that vantage point. Tr. Vol. I, 122–23. *See also* Ex. S-16, S-17, C,J, K (photographs taken from the ground). From the top of the highwall, behindthe place where the tree had been before it fell, the area appeared to bestable. Tr. Vol. I, 152. 

 

## C.    TheGround Control Plan and Drop Bench

 

Themine’s ground control plan required trees and vegetation to be removed a safedistance from the edge of the highwall unless a “drop bench” has been provided.Ex. S-7 at 5; Tr. Vol. I, 134–35. A drop bench is a shelf cut into the verticalhighwall to catch material falling from the top of the highwall. Tr. Vol. I, 135–36.While Inspector Brock stated a drop bench is only required for a high wall thatis more than 70 feet tall, high walls with a lower height can incorporate dropbenches. Tr. Vol. I, 86, 106, 135. 

 

Thereare no regulations which define the requirements for a drop bench, includingits composition, width, or height. Tr. Vol. II, 17. Instead, Respondent’s expertand Consulting Engineer Dayne Willis stated the requirements for a drop benchare “site specific” based on variables such as “the materials you're talkingabout and . . . the topography that you're dealing with, the configuration ofthe mine cuts, [and] the room you have to work with.” Tr. Vol. II, 17–18. 

 

Accordingto Inspector Brock, the typical drop bench is 20 feet wide, but they may be upto 40 feet wide.**Tr. Vol. I, 135–36. Here, the elevated area made ofbackfill material was 53 feet wide. Tr. Vol. I, 137. 

 

Pendletontestified the purpose of the backfill was “just to re-slope the . . . [area]back close to natural as possible.” Tr. Vol. I, 36. While he stated the bermwas not a safety bench, it did serve the safety purpose of keeping haulagetrucks from exiting the road. Tr. Vol. I, 36, 43. Moreover, while not a purposeof the berm, it did catch “small things like rocks” coming down the highwall.Tr. Vol. I, 43, 50. 

 

PerInspector Brock, the backfill area was not a “drop bench,” partly because thecontour of the backfill was not consistent with the expected contour of ahighwall, and partly because the berm (comprised of “soil, dirt, crushed uprocks”) was not made of the same material as the highwall (“solid rock”). Tr. Vol.I, 139. *See also*Tr. Vol. I, 107 (Inspector Brock stating this area wasnot a drop bench and that “[a] drop bench would be part of the highwallitself.”).

 

Themine’s foreman, Jody Brock,[6]referred to the area as a “safety bench.” Tr. Vol. I, 198. He said the backfillarea served a safety purpose. Tr. Vol 1 199–200. In addition to being stagedfor reclamation, it was put in place to keep people away from the toe of thehighwall and to keep objects from rolling off the highwall onto the haul road. Tr.Vol. I, 199–200. 

 

Willisstated he would define the area of backfill as a “drop bench” even though itwas wider than a typical drop bench.[7]Tr. Vol. II, 22–23. He stated this area complied with the mine’s ground controlplan and thus no removal of vegetation was required. Tr. Vol. II, 25–26. Whilethe material was intended for use in reclamation, it also could have served asafety purpose. Tr. Vol. II, 60. 

 

** **

## D.    Inspectionsand Examinations of the Mine and Highwall

 

Inaccordance with federal and state regulations, employees at the mine regularlyperformed pre-shift and on-shift examinations of the active working areas ofthe mine.[8]*See*Ex. S-6 (records of pre-shift and on-shift examinations in the daysleading up to and including January 11, 2022).  The on-shift examination wouldtypically be conducted throughout the duration of each shift and would documentconditions noted during that shift. Tr. Vol. I, 177. 

 

ForemanBrock testified that the purpose of these reports was to “[m]ake sure the bermsand highwalls and everything’s safe.” Tr. Vol. I, 176. He would also document thingsthat were “out of the ordinary or if there’s a foul, or something that’shappened” during the shift in these reports. Tr. Vol. I, 176. Regarding hison-shift examinations, Foreman Brock stated he would look to see if there wassomething out of the ordinary during his visual examinations of the highwallfrom the road, but noted he paid more attention to the areas where activemining was going to occur. *See*Tr. Vol. I, 189-90 (Foreman Brock statinghe paid more attention to the areas “[w]here everybody’s working at”).

 

Inthe days up to and including the date of the accident, January 11, 2022,employees at the mine consistently performed pre-shift and on-shiftexaminations of the road. *See*Ex. S-6 (containing Pre-Shift MineExaminers Reports and Daily and On-Shift Reports from January 1 through January11, 2022). The pre-shift examination report Foreman Brock completed on themorning of January 11 noted the highwall “[a]ppears to be stable at this time.”Tr. Vol. I, 179. *See also* Ex. S-6 at 1. The on-shift examination report completedby the night shift foreman for the previous shift similarly noted the highwall “[a]ppearedto be stable at time of exam.” Tr. Vol. I, 179. *See also* Ex. S-6 at 2. ForemanBrock also recalled making an examination and briefly “look[ing] up” at thepatch of trees on the highwall on the morning of the accident. Tr. Vol. I, 189.[9]

 

The minewas regularly inspected by MSHA, and an inspection was underway at the time ofthe accident. Tr. Vol. I, 147–48. MSHA Inspector David Faulkner was conductingan active regular E01 inspection at the Colmar Mine at the time of theaccident. Tr. Vol. I, 213–14. While he was not on-site on the day of theaccident, he had been to the mine multiple times before. Tr. Vol. I, 214. Herecalled traveling on the road on which the accident occurred and observing thehighwall from that vantage point, albeit briefly, on his visits to the minebefore the accident. *See*Tr. Vol. I, 224 (Inspector Faulkner stating he“just drove past” the site of the accident). 

 

An inspectortypically performs a general review of the site for imminent dangers (an“imminent danger round”) at the beginning of an inspection. Vol. I, 145. No imminentdangers or hazards were noted or cited at the pit during the inspections InspectorBrock reviewed in the accident investigation. Tr. Vol. I, at 146.  

 

## E.    CitationsIssued By MSHA

 

Afterits accident investigation, MSHA issued a citation under section 104(d)(1) ofthe Act, alleging that Respondent had been highly negligent in failing toremove the tree a safe distance from the edge of the highwall. Tr. Vol. I, 109-10;Ex. S-1. MSHA also issued an order under section 104(d)(1) of the Act alleging thatRespondent had been highly negligent in failing “to identify, report, andcorrect the trees that created hazardous highwall conditions” in its on-shiftexaminations. Tr. Vol. I, 111; Ex. S-2. A third citation under section 104(a)of the Act was also issued alleging that Respondent had failed to immediatelyreport the accident to MSHA, but as previously stated, this citation wasvacated at the hearing. Tr. Vol. I, 15; Slip op. at 2, note 2, *supra*.  

 

# II.           APPLICABLE LEGAL STANDARDS

 

## A.    TheGround Control Plan

 

Respondenthad an approved ground control plan for the Colmar Surface Mine that was ineffect for over six months by the time of the accident. *See* Ex. S-7 (GroundControl Plan acknowledged by MSHA June 30, 2020). It was required to design andmaintain its operations in accordance with that plan:

 

Each operator shall establish and follow a groundcontrol plan for the safe control of all highwalls, pits and spoil banks to bedeveloped after June 30, 1971, which shall be consistent with prudentengineering design and will insure safe working conditions. The mining methodsemployed by the operator shall be selected to insure highwall and spoil bankstability.

 

30 C.F.R. § 77.1000. 

 

The relevantprovision of the operator’s ground control plan states, “Unless a drop bench isprovided, trees and other vegetation will need to be removed a safe distancefrom the top of the highwall.” Ex. S-7 at 5. 

 

## B.    Requirementto Perform On-Shift Examinations

 

Respondentwas also required to inspect the active working areas of its mine at least onceduring every shift:

 

At least once during each working shift, or more oftenif necessary for safety, each active working area and each active surfaceinstallation shall be examined by a certified person designated by the operatorto conduct such examinations for hazardous conditions and any hazardousconditions noted during such examinations shall be reported to the operator andshall be corrected by the operator. 

 

30 C.F.R. § 77.1713(a).

 

Thisregulation is “broadly worded and requires, among other things, that adesignated certified person examine working areas for hazardous conditions asoften as is necessary for safety and that any conditions noted be corrected bythe operator.” *Peabody Coal Co.*, 1 FMSHRC 1494, 1495 (Oct. 1979). Asdiscussed in Section III.B. *infra*, the operator is only required toperform an on-shift examination in the active working areas of the mine. Whetheran adequate examination has been performed is determined using the “reasonablyprudent miner” test: “whether a reasonably prudent person familiar with themining industry and the protective purposes of the standard would haverecognized the specific prohibition or requirement of the standard.” *Nallyand Hamilton Ent., Inc.,*37 FMSHRC 1764, 1784–85 (Aug. 2015) (ALJ) (quoting*Tuscaloosa Resources*, 36 FMSHRC 1615, 1618, 1636 (June 2014) (ALJ)). 

 

## C.    Significantand Substantial (“S&S”)

 

Aviolation is significant and substantial (“S&S”) “if, based upon theparticular facts surrounding that violation, there exists a reasonablelikelihood that the hazard contributed to will result in an injury or illnessof a reasonably serious nature.” *Cement Div., Nat’l Gypsum Co.*, 3 FMSHRC822, 825 (April 1981).

In order for a violation to be considered S&S, thefollowing four elements must be met: 

 

(1) the underlying violation of a mandatory safetystandard; (2) the violation was reasonably likely to cause the occurrence ofthe discrete safety hazard against which the standard is directed; (3) theoccurrence of that hazard would be reasonably likely to cause an injury; and(4) there would be a reasonable likelihood that the injury in question would beof a reasonably serious nature.

 

*Peabody Midwest Mining,LLC,* 42 FMSHRC 379, 383 (June 2020)(integrating the refinement of the second *Mathies*step in *NewtownEnergy, Inc.*, 38 FMSHRC 2033, 2037 (Aug. 2016)).[10]*See also**Mathies Coal Co.*, 6 FMSHRC 1, 3–4 (Jan. 1984) (articulatingthe original four*Mathies*steps). 

 

Followingthe *Peabody/Newtown* refinement of the *Mathies* steps, the secondstep requires a two-part process of (1) determining the specific hazard thestandard is aimed at preventing, and (2) determining whether a reasonablelikelihood exists that the hazard against which the mandatory standard isdirected will occur. *Newtown Energy, Inc.*, 38 FMSHRC 2033, 2037 (Aug. 2016).

 

## D.    Negligence

 

Negligenceis defined as “conduct, either by commission or omission, which falls below astandard of care established under the Mine Act to protect miners against the risksof harm.” 30 C.F.R. § 100.3(d). The Mine Act holds operators to a high standardof care and requires them “to be on the alert for conditions and practices inthe mine that affect the safety or health of miners and to take steps necessaryto correct or prevent hazardous conditions or practices.” *Id.*

 

## E.    UnwarrantableFailure

 

In *EmeryMining Corporation*, 9 FMSHRC 1997 (Dec. 1987), the Commission held an“unwarrantable failure” is aggravated conduct constituting more than ordinarynegligence. 9 FMSHRC at 2001. Unwarrantable failure is characterized by suchconduct as “reckless disregard,” “intentional misconduct,” “indifference,” or a“serious lack of reasonable care.” *Id.* at 2003–04; *Rochester &Pittsburgh Coal, Co.*, 13 FMSHRC 189, 194 (Feb. 1991); *see also BuckCreek Coal, Inc. v. MSHA*, 52 F.3d 133, 136 (7th Cir. 1995) (approving theCommission’s unwarrantable failure test). 

 

Whendetermining whether conduct is “aggravated” in the context of an unwarrantablefailure, a Commission judge holistically analyzes the specific facts andcircumstances in the case at issue. *IO Coal Co.,* 31 FMSHRC 1346, 1350(Dec. 2009). The seven “aggravating” factors which must be considered are: 

 

(1) the extent of the violative condition, (2) thelength of time the violation existed, (3) whether the violation posed a highdegree of danger, (4) whether the violation was obvious, (5) the operator’sknowledge of the violation, (6) the operator’s efforts in abating the violativecondition, and (7) whether the operator had been placed on notice that greaterefforts were necessary for compliance.

 

*Manalapan Mining Co., Inc.*, 35 FMSHRC 289, 293 (Feb. 2013) (citing*IO Coal*,31 FMSHRC at 1351-57; *Cyprus Emerald Res. Corp*., 20 FMSHRC 790, 813(Aug. 1998), *rev’d on other grounds*, 195 F.3d 42 (D.C. Cir.1999)).

 

# III.         DISPOSITION

 

Theessential question governing several issues in this matter is one ofperspective. From the perspective of the time immediately following theaccident, it is obvious that the trees on the edge of the highwall, includingthe tree that killed Collett and severely injured Pendleton, should have beenremoved. 

 

Similarly,from the perspective of someone closely observing and inspecting the trees onthe ridgeline at the edge of the highwall, it might have been obvious that thefreeze/thaw cycle cited by the Acting Secretary’s witnesses had compromised theground in which the trees were rooted. An examiner or inspector at the top ofthe highwall could have realized how large the trees were and might haveconcluded that the trees presented a looming danger that should have beenremoved. 

 

Nobodyinvolved in this case—not Foreman Brock, nor Inspector Faulkner, nor any otherwitness—had the benefit of those perspectives. The core issue is thus whether Respondent’sagents should have availed themselves of the opportunity to alter their perspectiveso that the real danger presented by the circumstances here might have beenanticipated. 

 

## A.    Citation9138188 – Failure to Comply with Approved Ground Control Plan

** **

The Citationdescribes the condition or practice as:

 

The mine operator did not follow the Ground ControlPlan acknowledged on June 30, 2020, that required all trees be removed a safedistance from the top of the highwall and did not provide a drop bench. On pagethree, General Precaution No. 6 of the Ground Control Plan states, “Unless adrop bench is provided, trees and other vegetation will need to be removed asafe distance from the top of the highwall.” The tree was present on thehighwall since the area was mined in August 2021. Two weeks prior to theaccident, from January 2, 2022, to January 11, 2022, over three inches of rainand approximately eight inches of snow, coupled with a freeze-thaw cycle,resulted in wet, muddy conditions that loosened support of the trees. OnJanuary 11, 2022, two miners were traveling in a pickup truck on the mine haulroad when a tree, with a calculated weight of 6,241 pounds, fell from the topof the highwall and struck the pickup truck cab. The pickup truck driver died,and the passenger sustained serious injuries. 

 

The mine operator engaged in aggravated conductconstituting more than ordinary negligence by not complying with their GroundControl Plan. This violation is an unwarrantable failure to comply with amandatory standard. 

 

Ex. S-1. 

** **

### 1.     RespondentFailed to Comply with Its Ground Control Plan

 

Respondentcites the language of its ground control plan and argues that it complied withthe plain language of the plan. Resp’t Br. at 14. The plan says: “Unless a dropbench is provided, trees and other vegetation will have to be removed a safedistance from the top of the highwall.” Ex. S-7 at 5.  

 

Respondentargues that it complied with the plan because the unconsolidated backfillbetween the edge of the haul road and the toe of the highwall was provided, andintended, to prevent material falling from the highwall from endangering minerson the haul road. Resp’t Br. at 13–14. It contends that this materialconstituted a “drop bench” in accordance with its ground control plan. *Id.*at 14. 

 

Thetree that fell was a hazard that could have imperiled any of Respondent’sminers at any time. *See*Acting Sec’y Br. at 6 (“trees and othervegetation still presented a hazard at the top of the highwall”); Tr. Vol. II,39 (Respondent’s expert witness Willis stating the tree that fell was ahazard). The miner injured in the accident, Pendleton, testified that he wouldtravel the road approximately eight times a day. Tr. Vol. I, 28. The area wherethe accident occurred is near the parking lot used by miners. Tr. Vol. I, 76. Thezone of danger thus included an area where miners regularly worked andtraveled. 

 

The ActingSecretary argues that Respondent did not comply with the plan because the treethat fell was not a safe distance from the edge of the highwall. Acting Sec’yBr. at 6. This is logically and legally correct. 

 

Logically,one cannot accept that a tree was removed a safe distance from the edge of thehighwall if it fell from that distance and seriously injured two miners – oneof them fatally. Legally, general safety standards – including plans developedby the operator and approved by MSHA – require *effective* compliance. 

 

Notonly is this true as a general legal principle, but it is also expressly truehere. The standard requiring a ground control plan requires that the plan “will*insure*[sic] safe working conditions.” 30 C.F.R. § 77.1000 (emphasisadded). 

 

The requirement to “insure [sic] safe workingconditions” is a mandate over and above the particular requirements containedin the plan itself, which means although an operator may comply with all partsof its submitted and acknowledged plan, it may still be in violation of thestandard if the plan does not provide a safe workplace. While it is true theSecretary must acknowledge the plan, it is the operator first and foremost whomust make certain the plan “insure[s] safe working conditions,” and if the plandoes not, the operator violates the standard.

 

*Central Appalachian Mining, LLC*, 29 FMSHRC 430, 437 (June 2007) (ALJ). *See also**Thunder Basin Coal Co.*, 46 FMSHRC ___, slip op. at 6, No. WEST 2023-0157(Feb. 22, 2024) (ALJ) (quoting the first sentence of this quote from *CentralAppalachian Mining, LLC*, 29 FMSHRC at 437). 

 

Thestandard, and the plan developed in conformance to it, require the operator toprotect miners from hazards. Here, that was not done. 

 

The“bench”—or, as the Acting Secretary has characterized it, the “barricade,” *see*Acting**Sec’y Br. at 8—did not provide effective protection from fallingmaterial in this case. It was effective in catching some smaller objects andmight have been the functional equivalent of a drop bench or safety bench forsuch objects. However, the material did not prevent the tree from entering theroadway. 

 

Ithus agree with the Acting Secretary’s definition, to a point. The material inthis case functioned more like a barricade in that it was material intended tobe used in reclamation, not a bench that was designed to protect miners fromall potential hazards. It is undisputed that the material was not engineered ordesigned principally to protect miners from falling material. *See* Tr.Vol. II, 60 (Willis testifying the material was intended for use in reclamationbut could have served a safety purpose). 

 

Adrop bench, or safety bench, is typically cut into the highwall to catch materialfalling from the top of the highwall. Tr. Vol. I, 224. Here, the functionalprotection was an added benefit that generally operated to keep miners awayfrom the toe of the highwall (although it did appear to catch some materialbefore it contacted the haul road), not an engineered solution designed toprotect miners from the threat posed by tall trees left at the edge of thehighwall. 

 

Butthe Acting Secretary’s definition is not especially important to the resolutionof this issue.  It is doubtful that any engineered bench could have ensuredthat this tree would not have contacted the haul road. As the operator notes, atypical drop bench is only 20 feet wide, while this area was 53 feet wide atits widest. Resp’t Br. at 14. *See also*Tr. Vol. I, 135–37.

 

Relyingon the definition alone suggests that the operator would have complied with thestandard, if only the berm/backfill/barricade had been better designed to catchfalling material or constructed more solidly. The evidence cannot support sucha conclusion. The 67-foot-tall tree was simply too large to have been interceptedby any reasonable structure.[11]

 

Whetherthe operator does so by constructing a safety bench or by removing vegetationand objects a safe distance from the edge of the highwall, Respondent’s dutyhere was to protect its miners from injury.  A bench’s effectiveness should notbe judged by the manner of its construction, or by its size. The standardspecifies neither a height nor a minimum width nor a means of construction. 

 

Whatis important—in fact, determinative—is the ineffectiveness of this barrieragainst the tree that fell from the highwall. I therefore find that aneffective drop bench was not provided, and that at least one tree was notremoved a safe distance from the edge of the highwall. I therefore find aviolation of section 77.1000 for failing to conform to the requirements of theground control plan.  

 

### 2.      Itis Beyond Serious Question that the Violation of the Ground Control Plan wasS&S

 

Ihave found a violation of a mandatory safety standard, which satisfies step oneof the S&S analysis. *See*discussion *supra* Section III.A.1. Here,the hazard the standard is aimed at preventing is miners being struck bymaterial falling from the highwall. The violation of the safety standard contributedto this hazard because the tree had not been removed a safe distance from theedge of the highwall. *See id.* Thus, step two is satisfied. The size ofthe tree that fell from where it was left was reasonably likely to cause, andin fact did cause, serious and fatal injuries to two miners, satisfying stepsthree and four. Accordingly, this violation was S&S. 

### 3.     Respondent’sNegligence Was Moderate

 

Commissionjudges are not bound to adhere to the degrees of negligence set forth in Part100 of the Secretary’s regulations but may evaluate negligence in a holisticmanner. *See Brody Mining, LLC*, 37 FMSHRC 1687, 1701 (Aug. 2015); *accordMach Mining, LLC v. Sec’y*, 809 F.3d 1259, 1264 (D.C. Cir. 2016).**

** **

Atthe hearing, Inspector Brock stated he believed this was heightened negligencebecause “the hazard should have been so obvious to the operator that it shouldhave been corrected before an accident like this happened.” Tr. Vol. I, 142. 

** **

Here,a reasonable mine operator, familiar with the protective purpose of the Act andthe ground control plan, would have taken steps to evaluate the integrity ofthe ground and the support for the trees at the top of the highwall morethoroughly.

 

Theoperator was therefore negligent. But the degree of negligence here is lessthan the high level of negligence the Acting Secretary suggests.  

 

Inits Posthearing Brief, Respondent lists several mitigating factors that itargues compels a lower negligence assessment, which I discuss below:

 

·      *The fact that the area of theaccident was not in an active mining area.*Resp’t Br. at 17. The Record supports this conclusion. *See e.g.,*Tr. Vol. II, 74 (area where the accident occurred was not an active miningarea, but a haul road area).

* *

·      *The presence of the 53-foot-wideelevated bench and berm constructed at the foot of the highwall to mitigate anydanger from falling rocks, debris, trees, or vegetation.* Resp’t Br. at 17. While not a “drop bench” per se, theberm constructed here did serve a safety purpose and was wider than a drop bench.*See supra*Section I.C. (discussing the safety purposes of the bench andnoting it was wider than Inspector Brock’s definition of a 20-foot-wide safetybench).

* *

·      *The fact that the alleged“violative condition” was so inconspicuous that not even MSHA’s own mineinspector recognized it during his inspection of the Colmar Mine in the daysprior to the accident*. Resp’t Br. at17. “Inconspicuous” is something of a reach, but MSHA’s own inspector, like themine’s personnel, took no notice of the trees until after one had fallen. *See*Tr. Vol. I, 37–38, 217–19.

* *

·      *The rapidly changing weatherconditions that even the Secretary acknowledges were a contributing factor tothe accident*. Resp’t Br. at 17. Theeffect of the freeze/thaw cycle could not be discerned from the ground in thiscase, though in the future, the operator should consider changing conditionswrought by the cycle when examining for hazards. *See e.g.,* Tr. Vol. I, 68–69(Inspector Brock discussing the “huge effect” the freeze-thaw cycle can have ona highwall). *See also**supra* Section I.B. (discussing thefreeze-thaw cycle). 

 

·      *The unforeseeable manner inwhich the subject tree fell from the highwall where under nearly any other fallpath would likely have been caught in the safety bench at the foot of thehighwall.*Resp’t Br. at 17. The factthat the tree toppling from the highwall with fatal consequences was unforeseendoes not mean that it was “unforeseeable,” and the material was not a “safetybench” designed to prevent what happened here, but the hazard’s gravity was notapparent from the road or the area below the highwall.*See**supra*Section I.C. *See also* Slip op. at 13 (noting the 67-foot-tall tree wastoo large to be caught by the 53-foot-wide bench here).

 

Examiningobjectively what was known and evident before the accident, I thereforeconclude that the operator’s negligence here was moderate. From the perspectiveafforded by the roadway, the tree would not have appeared to be a hazard andwould not have looked tall enough to menace the roadway. Tr. Vol. II, 49-50. Itherefore conclude that the operator’s negligence was moderate. 

 

### 4.     TheOperator’s Violations Were Not a Result of its Unwarrantable Failure

 

TheCommission requires its judges to consider seven factors to determine whether aviolation resulted from an operator’s unwarrantable failure. *IO Coal Co.*,31 FMSHRC at 1351. Commission judges are required to consider all the factorsbut are granted discretion in weighing the factors. *Northshore Mining Co. v.Sec’y*, 46 F.4th 718, 729 (8th Cir. 2022). I haveconsidered the required factors and find that the violation did not result fromthe operator’s unwarrantable failure. 

 

#### a.     TheViolative Condition Was Not Extensive

 

The purposeof the extensiveness criteria in the unwarrantable failure analysis is toconsider “the scope or magnitude of a violation.” *Eastern Associated CoalCorp.*, 32 FMSHRC 1189, 1195 (Oct. 2010). *See also**Dawes Rigging& Crane Rental*, 36 FMSHRC 3075, 3079 (Dec. 2014) (noting this factor“has traditionally been determined by examining the extent of the affected areaas it existed at the time the citation was issued.”).

 

Inthis context, the extensiveness of the hazard is not especially important. Asingle tree could have—and in fact, did—result in the tragic fatal accidentthat occurred here. Thus, the fact that only a small stand of trees remained ina dangerous position on the highwall is not an aggravating or mitigating factorfor the violation. 

 

#### b.     TheLength of Time that the Violative Condition Existed is Not an AggravatingFactor

 

Similarly,the duration of the violation is not crucial in evaluating the operator’sculpability here. On the one hand, the fact that the trees remained at the edgeof the highwall for months after the area was mined could be considered as anaggravating factor. But the Acting Secretary’s own witnesses focused on thefreeze/thaw cycle as a contributing factor to the hazard. It is not known whenthe ever-changing freeze/thaw cycle may have caused the tree to lose its gripon the surrounding ground, or whether other conditions contributed to the tree’sroots failing to hold it to the ground. 

 

Theduration of the violation must nonetheless be considered, even where theevidence is imperfect. *Coal River Mining, LLC,* 32 FMSHRC 82, 93 (Feb.2010). I have considered the available evidence and find that the duration ofthe violation is not an aggravating factor for the violation, because the pointat which the danger arose cannot be determined. However, I do consider that theoperator could have considered the effect of the passage of time on the groundconditions and did not ever examine the top of the highwall after mining wascomplete.[12]

WhileRespondent was not required to conduct daily on-shift examinations of thisarea, *see*discussion *infra* Section III.B., at some point itshould have taken advantage of the road at the top of the highwall to examineconditions there. From that vantage point, the size and location of the treewould have been apparent, and the operator might have had second thoughts aboutleaving the stand of trees there, even if the ground did not appear to becompromised from the road below. 

 

Butits failure of imagination here is not an aggravating factor in isolation. Overtime, the apparent lack of any issues indicating a ground control problem atthe top of the highwall may have bred complacency, but it did not reflectindifference or disregard for safety. *See*Tr. Vol. I, 189 (Foreman Brocktestifying that he examined the highwall from the vantage point of the roadduring his on-shift examinations of the mine road). *See also*Ex. S-6(pre-shift and on-shift examination records for the days leading up to andincluding January 11, 2022, noting the highwall’s “stable” appearance from thevantage point of the road). 

 

#### c.     TheViolation Posed a High Degree of Danger

 

Thefatal accident in this case conclusively establishes the highly dangerouscondition created by the trees remaining on top of the highwall. This is themost important aggravating factor for two reasons. 

 

First,“[t]he factor of dangerousness may be so severe that, by itself, it warrants afinding of unwarrantable failure.” *Manalapan Mining Co.*, 35 FMSHRC 289,294 (Feb. 2013). Second, even “a finding of ‘moderate negligence’ does notforeclose an unwarrantable failure finding.”  *Excel Mining, LLC v. Dep’t ofLabor*, 497 Fed. Appx. 78, 79 (D.C. Cir. 2013), *citing Eastern AssociatedCoal Corp.*, 13 FMSHRC 176, 186-87 (Feb. 1991). Thus, where a hazard ishighly dangerous, the operator must exercise greater care. 

 

Thesize of the trees should have prompted a concern about the instability of thehighwall and the stress the trees could place on the ground as conditionschanged through erosion or the freeze/thaw cycle. The failure to include thearea at the top of the highwall in periodic examinations of some sort istherefore an aggravating factor because of the extraordinary danger posed by ahuge tree perched precariously near the edge of the highwall. The weight itcarries in the analysis, though, is reduced by the other conditions set forthbelow. 

 

#### d.     TheHazard Was Not Obvious

 

Thelack of obviousness is the crucial mitigating factor here. In hindsight, it isapparent that the trees remaining at the edge of the highwall created a severerisk of injury. It is known—now—that deteriorating ground conditions couldplace miners on the haul road or working on reclamation in grave danger. *Seesupra* Section I.B. (discussing the freeze/thaw cycle). The ground slopedepicted in the photographs also may have made it very unlikely that the treewould fall away from the haul road. *See*Ex. S-16, S-17, C, J, K.  

 

But thatslope would only be visible from the air or from the top of the highwall. *See*Ex. S-14. (aerial drone photograph showing perspective from above theslope). From the ground, before the accident, the trees were part of thegeneral background everyone perceived at the mine. This included InspectorFaulkner, who visited and inspected the mine but never himself traveled to thetop of the highwall to examine the conditions there, and never perceived orcited the trees as a hazard from his perspective on the ground below.

 

Fromthat everyday perspective, it was not possible to tell how far the trees werefrom the edge of the highwall. Witnesses varied in their testimony about howclose they were to the edge. *See*Tr. Vol. I, 81–82; Tr. Vol. II, 79–80,95–96. *See also* Ex. S-10.

 

Norwas it possible to assess ground conditions at the top of the highwall from theground below. *See*Slip op. at 5. MSHA used a drone to photograph thearea from the air during its accident investigation. *See* Slip op. at 4. 

 

Finally,the ground-level view miners and Inspector Faulkner had of the trees obscuredtheir size. At the distance where anyone working or traveling would haveperceived the trees, they did not appear as a large, looming threat. *See*Tr. Vol. II, 49–50 (Willis stating the tree would not have been perceived by aninspector as a hazard because it would not have looked tall enough to reach theroadway from the vantage point of the road). 

 

Wherea competent inspector would have seen and noted a hazard, it should be viewedas obvious. *The American Coal Co.*, 39 FMSHRC 8, 18 (Jan. 2017). It doesnot necessarily follow that a condition is not obvious because it was not citedby an inspector, but the common obliviousness to the danger is borne out by theactions of all material witnesses to the pre-accident conditions in the area. Itherefore find that the hazard was not obvious from the ground. 

 

#### e.     TheOperator Was Unaware of the Violative Condition Before the Accident

 

Thisfactor is closely related to obviousness because there was no evidence that theoperator had actual knowledge of the hazard. However, the operator could havehad constructive notice that the trees presented a serious risk to minersafety. 

 

Thereis not any evidence suggesting that the operator was aware of facts that shouldhave led it to conclude that the ground conditions at the top of the highwallhad deteriorated to the point where one or more trees might fall from the edge.Nor has the Secretary provided sufficient “predicate circumstances” toestablish that the operator should have known of the violative condition. *EasternAssociated Coal Corp.*, 32 FMSHRC 1189, 1199 (Oct. 2010). I therefore findthat the operator did not have actual or constructive knowledge of the dangerposed by the trees. 

 

#### f.     Respondent Did Make Some Effort to Protect Miners Below the Highwall fromFalling Material 

 

Asnoted above, the operator’s “drop bench” was not an effective protectivemeasure in this context and did not satisfy the requirements of the groundcontrol plan. *See*discussion *supra* Section III.A.1. Nevertheless,I disagree with the Acting Secretary that the purpose, nature, construction,height, or location of the barricade rendered it wholly ineffective as a safetymeasure. 

 

Witnessestestified that the barricade did catch material that had fallen from thehighwall. *E.g.,*Tr. Vol. I, 43, 50. Photographs supported this. *See*Ex.S-13, S-14 (both aerial drone photographs showing rocks on top of thebarricade). 

 

Thebarricade was at least partially effective as a preventive measure that actedto protect miners from falling material. 

 

Theoperator therefore did not evince a reckless disregard for or wanton or willfulindifference to the safety of its workforce. Where an operator maintained agood faith, though mistaken, belief that its measures would be effective, afinding of unwarrantable failure may be rejected, provided the operator’sbelief was reasonable. *Amax Coal Co.*, 19 FMSHRC 846, 851 (May 1997)(citing *Wyoming Fuel Co.*, 16 FMSHRC 1618, 1629 (Aug. 1994). 

 

Noris it improper to credit the operator for the barricade because it wasprimarily intended to facilitate reclamation. Respondent is permitted tooperate efficiently, provided it also does so safely. A reclamation plan thatalso promotes safety is consistent with the Act, even if the failure to foreseethe inadequacy of the barricade as a protection against this accident wasnegligent. 

 

#### g.     TheOperator Was Not on Notice that Greater Efforts at Compliance Were Necessary

 

The ActingSecretary argues that the operator was placed on notice that greater efforts atcompliance were necessary here because it had previously been cited for anunwarrantable failure violation in similar circumstances ten years earlier, ata different mine. Acting Sec’y Br. at 21. The contention is meritless forseveral reasons. 

 

The judgein the previous case did find that the violation in question was the result ofthe operator’s unwarrantable failure. *Nally and Hamilton Ent., Inc.,*37FMSHRC at 1798-1800.[13]But that finding was based on a previous citation at this mine for the sameviolation and the fact that roots, root balls, and vegetation were obvious andvisible from the ground. *Id.* 1789. The violation also occurred in anactive pit, with miners working below. *Id.*

 

Mostimportantly, MSHA itself made no connection between the prior cited conditionat another mine and the conditions at this one until it submitted its post-hearingbrief in this case. *See*Acting**Sec’y Br. at 21. Thus, the priorcase is of limited significance here. 

 

Muchgreater weight must be attributed to the fact that this mine was regularlyinspected, and this condition was never questioned, much less cited, by theinspector. The lack of any communication to the operator about this conditionserves only to underscore the fact that the violation was not obvious to thenaked eye from the ground below. 

 

Thefact that an inspector did not previously cite a violative condition is nodefense to a finding of violation. But in this case, it does show that areasonable person whose principal responsibility is the observation andcitation of violations of safety and health standards failed to see the treesas a hazard at any point. 

 

Themajority of MSHA inspectors are generally diligent, professional, and observantin their work. There was no evidence that Inspector Faulkner—who had been anMSHA surface mine inspector for more than 15 years at the time of theaccident—did not adhere to this standard. Inspector Faulkner was assigned asthe regular inspector for this mine, so I find the fact that he did not evernote the trees as a potential hazard affirms that the operator’s own view,though erroneous, was not reckless or unreasonable. 

 

Becauseonly the extremely dangerous nature of the hazard may be used as an aggravatingfactor, and because that danger was not manifest until after the accident, Iconclude that the violation was not the result of the operator’s unwarrantablefailure. 

 

## B.    OrderNo. 9138189 – Failure to Perform Adequate On-Shift Examination

 

Respondentcontends that it was not required to inspect the area above the highwall forhazards because it was not an active working area. Resp’t Br. at 15. Theevidence shows that mining of this highwall had been complete since August 2021.Tr. Vol. I, 174–75. The area had not been inspected by MSHA since at leastthen, and the operator had never been cited for failing to conduct on-shiftexaminations of the top of the highwall. 

 

MSHAcited the operator for violating section 77.1713(a) because it claimed that thefailure to inspect significantly and substantially contributed to the hazard ofone of the trees falling from the top of the highwall into an area where minersworked or traveled. The Order describes the condition or practice as:

 

During on-shift examinations since at least as earlyas January 1, 2022, the mine operator did not identify, report, and correct thetrees that created hazardous highwall conditions. The mine operator did notfollow the Ground Control Plan that required all trees be removed a safedistance from the top of the highwall. Two weeks prior to the accident, fromJanuary 2, 2022, to January 11, 2022, over three inches of rain andapproximately eight inches of snow, coupled with a freeze-thaw cycle, resultedin wet, muddy conditions that loosened support of the trees. During theaccident investigation, loose mud and rock material continued to fall from thehighwall adjacent to the mine road. During inclement weather, it is incumbentfor the mine operator to diligently examine and carefully focus on changinghighwall conditions along the mine haul road where miners travel daily. OnJanuary 11, 2022, two miners were traveling in a pickup truck on the mine haulroad when a tree, with a calculated weight of 6,241 pounds, fell from the topof the highwall striking the pickup truck cab. The pickup truck driver died,and the passenger sustained serious injuries. 

 

The mine operator engaged in aggravated conductconstituting more than ordinary negligence by not identifying, reporting, andcorrecting hazardous ground conditions and permitting work in the affectedarea. This violation is an unwarrantable failure to comply with a mandatorystandard.

 

Ex. S-2. 

 

MSHAmust first establish a duty to inspect the area. The Commission has held that, undersection 77.1713(a), an on-shift examination is only required for active workingareas of the mine. *Black Castle Mining Co.*, 36 FMSHRC 323, 325-26 (Feb.2014); *Red River Coal Co.*, 39 FMSHRC 368, 386 (Feb. 2017) (ALJ). 

 

In *BlackCastle*, a miner was fatally injured when his bulldozer ruptured an unmarkedgas line in the area where the bulldozer was being operated. 36 FMSHRC at 324. MSHAalleged this was a violation of section 77.1713(a) because the gas line was notadequately marked and “should have been reported and corrected during therequired daily inspection.” *Id.* at 324-25.

 

In thatcase, the Acting Secretary argued “active working area” under section77.1713(a) should “include all areas where it is reasonably foreseeable that minerswill work or travel when carrying out their work-related tasks.” *Id.* at326. The Commission also noted “active workings” is defined in 30 C.F.R. §77.2(a) as “‘any place in a coal mine where miners are normally required towork or travel.’” *Id.* at 326. 

 

Whenconsidering the Acting Secretary’s proposed definition, the Commission stated therelevant question was “whether it was reasonably foreseeable that a miner wouldbe in the accident area when carrying out his or her work related tasks duringthe shift(s) covered by the operator’s examination.” *Id.* at 326. Theoperator in *Black Castle*, however, had no reason to anticipate thefatally injured miner would be at the location of the accident because it wasnot part of his assigned work area and “had nothing to do with his workassignment,” and mine employees were even “surprised” the miner was in thatarea. *Id.* (internal quotations omitted).

 

TheCommission ultimately affirmed the judge’s finding that the area where theminer was operating the bulldozer was not an “active working area” based oneither the definition proposed by the Acting Secretary or the definition of“active workings” in section 77.2(a). *Id.* at 327.  Notably, however, theCommission chose not to adopt a definition for the term “active working area” insection 77.1713(a) or to incorporate the definition of “active workings” setforth in section 77.2(a) in 77.1713.[14]

 

Here,Respondent contends it did not violate section 77.1713(a) because “the areawhere the accident occurred was not an active mine area at the time of theaccident.”  Resp’t Br. at 15. In contrast, the Acting Secretary argues “[t]hearea was subject to the on-shift examination because it was the mine’s maintravel road.” Acting Sec’y Br. at 16. 

 

Ifind that the area above the highwall itself was not an “active working area”at the time of the accident. As Respondent correctly noted, both its and the ActingSecretary’s witnesses testified at the hearing that no mining was occurring inthe pit at the time of the accident. Resp’t Br. at 15. *See also*Tr. Vol.I, 174–75. Moreover, the access road at the top of the highwall was not regularlyaccessed by miners, and no mine employees were working on or at the top of thehighwall. *See*Tr. Vol. I, 82; Tr. Vol. I, 189–90. 

 

Allthese facts suggest that Respondent had no reason to anticipate miners would beworking in the pit below the highwall until reclamation began. Thus, under thelogic of *Black Castle*, the area above the highwall where the trees werelocated is not an active working area under section 77.1713(a), and Respondenthad no duty to examine the trees from the top of the highwall. 

 

Theroad on which Pendleton and Collett were traveling was an “active working area”under section 77.1713(a). It does not matter that active mining did not occurhere because Respondent’s employees traveled on the road as part of their jobs.Pendleton and Collett were performing their work duties of transportingexplosive materials when they were on the road at the time of the accident. Tr.Vol. I, 25. Witnesses also testified that miners would routinely travel on theroad to get to and from the parking lot and through the course of their shiftsat the mine, with some miners making numerous trips on the road during a shift.*E.g.*, Tr. Vol. I, 28. Under the logic of *Black Castle*, this roadwas an area where the operator anticipated and expected miners to travel aspart of their shifts, and miners did in fact travel on that road frequentlyevery working day. 

 

Thepre-shift and on-shift examination records show that the road on whichPendleton and Collett were traveling was regularly inspected by Respondent’semployees, including on January 11, 2022, the date of the accident. *Seesupra* Sections I.A., I.D. *See also*Ex. S-6.**Accordingly, Ifind there can be no dispute that Respondent itself considered the mine road tobe an area for which an on-shift examination was required. Thus, Respondentsatisfied the first prong under section 77.1713(a) that it perform anexamination of the active working area during each shift.

 

Section77.1713(a), however, not only requires Respondent to perform an on-shiftexamination of the active working areas, but to also examine for, note, report,and correct any hazardous conditions observed as part of that inspection. AffirmingMSHA’s citation that Respondent violated section 77.1713(a), thus, ultimately hingeson whether the fallen tree and other trees located in the patch on the highwallwere hazardous conditions that the operator should have noted, reported, andcorrected during its on-shift examinations of the mine road. *See*Acting**Sec’y Br. at 15 (arguing section 77.1713(a) was violated because the treewhich fell was a hazardous condition). I find they were not.

 

            While MSHAsuggests that the trees were visible from the road where miners work or travel,this is an insufficient basis for finding a violation of section 77.1713(a). Ifthe danger could have been perceived from the road, where miners did regularlywork and travel, the result might be different. *See Kentucky Fuel Corp.*,36 FMSHRC 159, 171–72 (Jan. 2014) (ALJ) (finding a violation of section77.1713(a) when the operator failed to document in its examinations the“readily apparent” condition of a catch bench that was full and unable tosufficiently catch loose material); *Extra Energy, Inc.*, 34 FMSHRC 3285,3293 (Dec. 2012) (ALJ) (finding a violation of section 77.1713(a) when the foremanfailed to note “obvious conditions” and in which the MSHA inspector stated thehazardous condition “was easily visible to the most casual observer” in thecitation itself).

 

However,evidence presented at the hearing establishes a reasonably prudent miner could havenot perceived the danger of the trees on the highwall from the vantage point ofthe mine road. I have already found the hazard of the trees was not obviousfrom the road. *See*discussion *supra* Section III.A.4.d. Thus, thiscase is different from the previous *Nally and Hamilton* case cited by theActing Secretary because the inspector could see roots and other materialhanging from the edge of the highwall while he was standing in the pit. *SeeNally and Hamilton Ent., Inc.*, 37 FMSHRC at 1789.****

 

Therewas conflicting testimony about where the tree was located, suggesting it wasnot readily apparent from below how close the tree was to the edge of the highwall.I also find the tree was not obviously visibly ill or dead—which, if true,could suggest a greater likelihood of it falling and thus needing to becorrected—given conflicting testimony and the tree’s health status not beingconclusively established by either party at the hearing.[15]

 

Therewas no duty to include the area above the highwall in the operator’s dailyon-shift examinations, and there is no credible record evidence showing thatthe danger here could or should have been perceived from the main mine roadwhere miners regularly traveled. Absent such a duty, I vacate Citation 9138189.

 

## C.    Penalty

 

WhileI have found the operator’s negligence to be moderate and that the violationhere did not result from its unwarrantable failure, the consequences followingthe operator’s failure of imagination here are tragic and profound. One minerwas killed, and another so severely injured that he had not returned to work atthe time of the hearing in this matter and has likely been permanentlydisabled. *See supra* Section I.A.  

 

Iassess the penalty independently, considering the six factors in section 110(i)of the Act. I agree with the Acting Secretary that the operator is a largeoperator and that it acted promptly and in good faith to abate the violationonce cited. The remaining trees were removed within one week of the accident. 

 

Theoperator has stipulated that the penalty proposed by the Acting Secretary wouldnot affect its ability to remain in business. Tr. Vol. II, 7. I have also consideredthe operator’s history of violations and find no basis for adjusting thepenalty based on that history. *See* Ex. S-9. 

 

Ihave found that the operator was only moderately negligent in its breach of theduty of care. *See*discussion *supra*Section III.A.3. However, Ifind that the gravity is such that a substantial penalty is necessary to ensurethat examinations and safety planning for this operator consider all potentialhazards that could threaten miners in active mining areas, especially those foundon the perimeter of active working areas or places where miners regularly workor travel. 

 

Itis apparent that Respondent did not appreciate fully the danger posed by thetrees, and its ground control plan was not followed in the manner best designedto protect miner health and safety. Upon consideration of the statutoryfactors, I therefore assess a penalty of $16,000 for the violation of 30 C.F.R.§ 77.1000. 

 

Theassessed penalty will encourage the operator to consider more thoughtfully allpotential hazards that could pose a grave danger to its workforce whendesigning and executing its ground control plans. The penalty will alsoencourage the operator to periodically examine vegetation left near the edge ofhighwalls that might contribute to a catastrophic ground failure. 

 

Inthe future, Respondent should consider facts such as slope, ground integrityand composition, the size of the remaining vegetation, whether any remainingtrees are alive or dead, and how close to the edge any vegetation or othermaterial might be. Respondent should also determine whether vegetation leftnear the edge of highwalls after mining could be loosened or dislodged byweather, erosion, or other foreseeable events. 

 

Itmight not be necessary to examine the top of every highwall during each examination,or to clear trees from every highwall as an alternative. The presence of trees mayhelp with reclamation. Ironically, the presence of live trees often may behelpful in controlling the fall of loose, unconsolidated material from areasabove highwalls, because the roots function to hold the tree to the ground.[16]

 

Nevertheless,it is much better to know what can be known than to assume what conditionsmight be like—especially during the seasonal changes of concern to MSHA becauseof the freeze/thaw cycle and its potential effect on the stability of highwalls.Where, as here, there is a road permitting access to the area above thehighwall, it is thus better to evaluate the condition at least periodically. Withadvances in technology, it might also be feasible to use drones to inspect theareas above highwalls for changes in ground conditions or potential hazards. 

 

Itcannot be known whether such examinations would have identified the conditionswhich led to the accident here. But the failure to discover the condition permittedan obscured hazard to manifest at the worst possible time, with graveconsequences. The penalty reflects Respondent’s failure to appreciate thegravity of that danger and take the steps required to protect its workforceunder the elevated standard of care provided by the Act. 

 

# IV.         CONCLUSION

 

Forthe reasons above, Citation Number 9138183 is **VACATED**and Docket No. KENT2022-0079 is **DISMISSED**. Citation Number 9138189****is also**VACATED**. 

 

 

CitationNo. 9138188 is **AFFIRMED**as an S&S violation of 30 C.F.R. § 77.1000 withmoderate negligence for Respondent’s failure to comply with its ground controlplan. A penalty of $16,000 is assessed for this violation. Respondent is **ORDEREDTO PAY** the sum of $16,000 within 30 days of the date of this order.[17]

 

 

 

 

/s/Michael G. Young

Michael G. Young

                                                            AdministrativeLaw Judge

 

 

Distribution (by email):

 

Thomas J. Motzny, Esq., and Taylor D. Cooper, Esq., U.S.Department of Labor, 618 Church Street Suite 230, Nashville, Tennessee 37219, Motzny.thomas.j@dol.gov, Cooper.taylor.d@dol.gov 

 

Joseph H. Mattingly, III, Esq., Joseph H. Mattingly III, PLLC,P.O. Box 104 W. Main St., Lebanon, Kentucky 40033, joe@mattinglylawoffices.com

 

S. Thomas Hamilton, Esq., Saltsman, Willett, Deaton &Hamilton, P.S.C., 212 E. Stephen Foster Avenue, Bardstown, Kentucky 40004, sth@ky-atty.com

----

[1] In this decision, the transcript is abbreviated as“Tr. Vol. I” and “Tr. Vol. II” for the first and second days of the hearing,respectively. The Acting Secretary’s exhibits are abbreviated as “Ex. S-#” andthe Respondent’s exhibits are abbreviated as “Ex. [Letter].” The ActingSecretary and Respondent’s Posthearing Briefs are abbreviated as “Acting Sec’yBr.” and “Resp’t Br.,” respectively. 

 

[2] Before the hearing, MSHA vacated Citation No. 9138183(docketed at KENT 2022-0079) for failure to promptly report an accident inaccordance with 30 C.F.R. § 50.10(a).  Tr. Vol. I, 15. The decision to vacatewas not made as part of a compromise, mitigation, or settlement of a penaltybut was a prudent exercise of prosecutorial discretion. 

[3] Two of the witnesses who testified in this hearinghave the surname “Brock.” In this decision, MSHA Special Inspector Silas Brockwill be referred to as “Inspector Brock.” Colmar Mine Foreman Jody Brock willbe referred to as “Foreman Brock.” The two men are not related. *See*Tr. Vol.I, 67. Another similarly named individual, MSHA Roof Control Supervisor ArgusBrock, did not testify but was mentioned at the hearing. *See e.g.*, Tr. Vol.I, 64. Mr. Argus Brock is also not related to Inspector Brock. Tr. Vol. I, at 65.

[4] The two assistant district managers were CraigPlumley and Dennis Cotton, and the surface inspector was Larry Brent Boggs,none of whom testified at the hearing. Tr. Vol. I, 66. 

[5] It should be noted that neither party’s witnesseswere arbor experts or had formal education in trees. Tr. Vol. I, 152; Tr. Vol.II, 88. However, Inspector Brock testified that he “grew up in these hills [andknew] a dead tree from a live tree.” Tr. Vol. I, 95. 

ForemanBrock stated he could tell whether a tree is dead or alive because he “wasaround them for a long time.” Tr. Vol. II, 88. He also had prior experienceworking at a sawmill. Tr. Vol. I, 204–05. Moreover, Foreman Brock wasresponsible for cleaning up the fallen tree, which he stated would have snappedduring that process “if it was dead.” Tr. Vol. I, 205. 

[6] As noted in Slip op. at 3, note 3, *supra*,Colmar Mine Foreman Jody Brock will be referred to as “Foreman Brock” in thisdecision. 

 

[7] Willis also testified that a drop bench could becalled a “safety bench or a catch bench.” Tr. Vol. II, 22.

 

[8] As discussed in Sections II.B. and III.B. *infra*,federal regulations require an examination of the “active working areas” of amine at least once per shift. 30 C.F.R. § 77.1713(a). Kentucky stateregulations also require a pre-shift examination of areas. Ky. Rev. Stat. 352.280(2); Tr. Vol. I, 115.

 

[9] At the hearing, Foreman Brock testified that hecompleted the pre-shift examination report for January 11, 2022, between 5 and6 AM. Tr. Vol. I, 179, 181–82. *See also* Ex. S-6 at 1. He also stated thenight shift foreman completed an on-shift examination report for the previousshift. Tr. Vol. I, 180–81. *See also* Ex. S-6 at 2. That examination startedat 4:30 PM the evening prior. Tr. Vol. I, 180. 

 

Inher Posthearing Brief, the Acting Secretary acknowledged the apparently missingon-shift examination report for January 11, 2022:

 

 As best as can be discerned from the documents, thereis no report representing an on-shift examination for the day shift on January11, 2022. The previous on-shift examination for January 10, 2022, shows thetime of the examination from 5:00 

(continued . . .)

 

[9] (. . . continued)

a.m. to 5:30 p.m. *See* S-7 at DOL 00198. Likely,because of the accident Foreman Brock overlooked filling out the form onJanuary 11, 2022, for the day shift.

 

Acting Sec’y Br. at 16, note 9.

 

Whenasked by the Secretary’s attorney whether he completed an on-shift examination forJanuary 11, 2022, by virtue of signing the pre-shift examination report, ForemanBrock answered yes. *See*Tr. Vol. I, 181. 

[10] In her Posthearing Brief, the Acting Secretary argued“[t]he *Newtown/Peabody* reformulation is inconsistent with the Mine Act’sdefinition of S&S” and the second step as originally articulated in *Mathies*should be followed instead. Acting Sec’y Br. at 12. However, the Acting Secretaryalso stated “the second step . . . was met under either test.” *Id.* at13. Because the Commission’s application of the *Peabody/Newtown*refinement is binding precedent, I must apply that formulation of the secondstep of the S&S analysis.  

[11] Of course, the tree could have fallen in a differentdirection. *See*Tr. Vol. II, 50–51 (Willis stating no one could havepredicted how the tree would have fallen or at what angle). But relying on suchfatalism is no different than suggesting that it might have fallen at adifferent time. A mine operator must anticipate events that are reasonablylikely to occur and must assume that those events will transpire at the worstpossible time. 

[12] The Acting Secretary noted the relevant time periodfor duration was from at least July 2021 to January 2022 based on ForemanBrock’s testimony on how long the patch of trees had been on top of thehighwall. *See*Acting Sec’y Br. at 21. I find the mere fact the treeswere present for months—and likely years, given their large size—before theaccident not determinative in the duration analysis because of the effect thefreeze/thaw cycle can have on the ground conditions. *See supra* SectionI.B. (discussing the freeze/thaw cycle).

[13] This decision was reviewed by the Commission in 2017.*Nally and Hamilton, Ent., Inc.*, 39 FMSHRC 1938 (Oct. 2017). TheCommission’s review was limited to the judge’s finding that a different violationfrom the one cited in this case was not S&S, a question on which theCommission was evenly divided. *Id.* at 1938–39.  

[14] In its *Black Castle* decision, the Commission neitherchose to adopt definition of “active working area” nor incorporated thedefinition “active workings” in section 77.2(a) into section 77.1713(a). *See*36 FMSHRC 327-28 (discussing why the area at issue was not an “activeworking area” under either definition). However, the administrative law judge (“ALJ”)who first heard this case discussed both definitions. *Black Castle MiningCo.,* 32 FMSHRC 132, 135-36 (Jan. 2010) (ALJ).  The ALJ noted that the Respondent’sargument that the accident did not occur in an “active working area” relied onanother ALJ decision, *Central Ohio Coal Co.*, 12 FMSHRC 1014 (May 1990)(ALJ). However, the ALJ noted this argument was not persuasive 

(continued . . .)

[14] (. . . continued)

because *Central OhioCoal Co.*, was not a binding decision. 32 FMSHRC at 136. 

 

In*Central Ohio Coal Co.*, the operator was cited a violation of section77.1713(a) in which the MSHA inspector equated “active working area” as used insection 77.1713(a) with “active workings” as defined in 30 C.F.R. § 77.2(a). 12FMSHRC at 1016.  The ALJ ultimately rejected the Secretary’s contention that“active working area” as used in section 77.1713(a) and “active workings” in section77.2(a) should be equated because it would render the reference to “activesurface installation" in section 77.1713(a) “superfluous” and found an“active working area” to be “the working areas where coal is mined andextracted.” *Id.* at 1017–18.

 

[15] As noted in Slip op. at 5, note 5, *supra*,Foreman Brock—who testified that the tree was alive—had prior experience withtrees through his work at a sawmill. I find his testimony to be credible. Basedon that and other testimony and evidence presented, including pictures and theweight of the tree, *see*discussion *supra*Section I.A., I wouldfind the tree was alive at the time it fell. 

 

However,this conclusion that the tree was alive at the time of the accident has nobearing on my conclusion that the tree was not a hazard that a reasonablyprudent miner would recognize and thus note, report, and correct whenperforming an on-shift examination of the road. The 

(continued . . .)

[15] (. . . continued)

relevant question iswhether the tree’s appearance suggested there was something wrong with it thatposed a danger of falling, and that appearance would have been visible to anindividual looking up at the tree from the road. I find the tree appeared to bein a fine, healthy, and stable condition when viewed from the road before theaccident because there is no evidence to the contrary.

[16] At the hearing, Consulting Engineer Willis testified hewould generally expect a root system to stabilize trees to the ground. Tr. Vol.II, 47. 

 

TheU.S. Department of Agriculture has also published a guide on the ForestryReclamation Approach, a set of best practices developed by reclamationscientists to restore abandoned and unused mine lands into forests. U.S. Dep’t of Agric. Forest Serv., TheForestry Reclamation Approach: Guide to Successful Restoration of Mined Lands (MaryBeth Adams ed., 2017), https://www.fs.usda.gov/nrs/pubs/gtr/gtr_nrs169.pdf.

 

[17] Please pay penalties electronically at Pay.Gov, a service of the U.S. Department of the Treasury,at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment (check or money order)to: U.S. Department of Treasury, Mine Safety and Health Administration, P.O. Box790390, St. Louis, MO 63179-0390.Please include Docket and A.C. Numbers.