**FEDERAL MINE SAFETY AND HEALTHREVIEW COMMISSION**

OFFICE OF ADMINISTRATIVELAW JUDGES

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

WASHINGTON, DC20004-1710

TELEPHONE: 202-434-9956/ FAX: 202-434-9949

 

April 15, 2021

 
| JONES  BROTHERS INC.,

   Contestant,

 

 

              v.

 

 

SECRETARY  OF LABOR

MINE  SAFETY AND HEALTH       

ADMINISTRATION  (MSHA),

                Respondent.

 

SECRETARY  OF LABOR

MINE  SAFETY AND HEALTH       

ADMINISTRATION  (MSHA),

                Petitioner, 

              v.

 

 

JONES  BROTHERS INC.,

                             Respondent.                                                                                             |   |   | CONTEST  PROCEEDINGS

 

Docket  No. SE 2016-0218-RM

Citation  No. 8817595; 04/06/2016

 

Docket  No. SE 2016-0219-RM

Citation  No. 8817596; 04/06/2016

 

Mine:  Jones Brothers Mine

Mine  ID: 40-03454

 

 

CIVIL PENALTY PROCEEDING 

 

Docket  No. SE 2016-0246

A.C.  No. 40-03454-410595

 

 

 

 

 

Mine:  Jones Brothers Mine |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

**DECISION AND ORDER**

 

Appearances:              WillowE. Fort, Esq., Office of the Solicitor, U.S. Department of Labor, Arlington,Virginia, for the Petitioner

 

                                    DouglasR. Pierce, Esq. and Michael D. Oesterle, Esq., King & Ballow, Nashville,Tennessee, for the Respondent

 

Before:                        JudgeRae

 

This case is before me upon apetition for assessment of civil penalty filed by the Secretary of Labor (“Secretary”)pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977,as amended, (“Mine Act” or “Act”), 30 U.S.C. § 815(d). At issue are two orders undersection 104(g) of the Mine Act and seven citations under section 104(a), issuedto Respondent Jones Brothers, Inc. (“Respondent”).

 

Respondent contested the citationsand orders, arguing that the excavation site was not a “mine” subject to MSHAjurisdiction. Answer at 1. Previously, Federal Mine Safety and Health ReviewCommission Administrative Law Judge Margaret Miller ruled that Respondent’soperation was subject to the Mine Act. 39 FMSHRC 399 (Feb. 2017) (ALJ). OnApril 13, 2017, the Commission denied Respondent’s Petition for DiscretionaryReview. Respondent then successfully appealed to the United States Court ofAppeals for the Sixth Circuit. *Jones Bros. Inc. v. Sec’y of Labor*, 898F.3d 669 (6th Cir. 2018) (holding that ALJ Miller was not constitutionallyappointed and that Respondent was entitled to a new hearing before aconstitutionally appointed ALJ).

 

After this matter was remanded to me,a hearing was held via Zoom for Government videoconferencing on January 26 and27, 2021, at which time testimony was taken and documentary evidence wassubmitted. Additionally, the parties submitted post-hearing briefs. Tr. II at60.[1]I have reviewed all the evidence at length and have cited to the testimony,exhibits, and arguments I found critical to my analysis and ruling hereinwithout including a detailed summary of the testimony given.

 

After consideration of the evidence,and observation of the witnesses and assessment of their credibility, I findthat I have jurisdiction over this matter because it involves a “mine” underthe Mine Act, and I uphold the citations and orders for the reasons set forthbelow.

 

**I.               ****FINDINGSOF FACT**

 

**A.   ****Background**

 

This matter concerns Respondent’sopen-pit excavation site in DeKalb County, Tennessee. Tr. I at 84–85, 89–90. Respondent’semployees worked at the site up to six days a week from August 2015 to August2016. Tr. I at 94, 230, 291; Ex. S-25. Respondent was excavating at the site insupport of its contract with the Tennessee Department of Transportation (“TDOT”)to repair “slide” damage[2]to nearby State Route 141. Tr. I at 26; Ex. S-26; Ex. S-27. The contractrequired Respondent to obtain approximately 68,615 tons of “graded solid rock”to complete the road repair. Ex. S-26 at 59; Ex. S-27 at 4. TDOT’s StandardSpecifications for Road and Bridge Construction (“Standard Specifications”) definegraded solid rock as “sound,non-degradable rock having the following characteristics”: (1) “[m]aximumparticle size of 3 feet in any direction”; (2) “[p]article size distribution inwhich at least 50% of the rock is uniformly distributed between 1 foot and 3feet in diameter, and no more than 10% is less than 2 inches in diameter”; (3)“[r]oughly equi-dimensional in shape”; and (4) “[n]o thin, slabby material.” Ex.S-28 at 10–11. Further, the Standard Specifications require that graded solidrock be processed “using an acceptable method that produces the requiredgradation” and that “the weighted percentage of loss shall not be more than 12”when “subjected to five alterations of the sodium sulfate soundness test.” Ex.S-28 at 11. Finally, the Standard Specifications require “the [e]ngineer’s approvalbefore using the material.” *Id.*

 

Respondent contracted with a nearbyproperty owner to obtain graded solid rock by excavating on his property. Tr. Iat 214; Ex. S-3 at 8–9. The property was less than one mile from the roadrepair site. Tr. I at 103–04, 220, 239, 258, 307, 366. Respondent used coredrilling[3]to obtain a rock sample and then submitted the sample to TDOT, who confirmedthat the sample qualified as graded solid rock. Tr. I at 227–28. After the rocksample was approved, Respondent began preparing the excavation site on or aboutAugust 10, 2015. Tr. I at 93–94, 279–80; Ex. S-3 at 14. Respondent cleared theoverburden—the timber, dirt, and rock above the graded solid rock—and then createdroadways and benches. Tr. I at 254–55, 281–84.

 

After preparation, Respondent startedthe extraction process by drilling blast holes and “shooting” the blast holes withexplosives to expose the underlying material. Tr. I at 282–84. The underlyingmaterial consisted of limestone rock, as well as mud and dirt seams. Tr. I at84, 108–09, 218, 225, 256, 302, 304–06, 310, 317; Tr. II at 50–52. During extraction,oversized rocks that were “as large as a pickup truck” were blasted loose. Tr.I at 260, 306; Tr. II at 54. After blasting, Respondent used an excavator-mountedpiece of hydraulic equipment known as a hoe ram to break up some of the larger rocks.Tr. I at 100, 230, 241–42, 259. Respondent then used excavators to load the materialonto dump trucks, using either a slotted[4]or standard (solid) excavator bucket. Tr. I at 185, 220, 264. The slottedbucket allowed undersized material to fall through the slots, leavingappropriately sized rocks and limiting the presence of dirt. Tr. I at 102–03,117–18, 220–21, 229–30, 271–72, 308, 333; Tr. II at 16–17, 31–32, 37–40, 53–54.Respondent used the slotted bucket to remove dirt because TDOT did not permitthe presence of dirt in graded solid rock. Tr. I at 225–26, 271–72, 304–06. Afterbeing loaded, the dump trucks transported the graded solid rock to the roadrepair site, where it was deposited and compacted by a bulldozer. Tr. I at239–40, 258, 316, 319.

 

On April 5, 2016, MSHA Inspector DannyWilliams[5]inspected Respondent’s excavation site after witnessing it from a nearby road. Tr.I at 88–89. Duringthe inspection, Inspector Williams spoke with Respondent’s employees. Tr. I at 121.One employee allegedly told Inspector Williams of a discussion the employee hadwith Respondent’s management regarding the possibility that the operation wouldbe subject to MSHA jurisdiction. Tr. I at 121–22. The employee also allegedly statedthat Respondent’s management dismissed the employee’s concerns by statingsomething to the effect of “we’re going to call it a borrow pit.”[6]*Id.*Afterobserving and photographing Respondent’s operations, Inspector Williamsreturned on April 6, 2016 and issued the nine citations and orders at issue inthis matter. *See**infra*Section III.B; Ex. S-4, S-6, S-9, S-11, S-13,S-15, S-17, S-20, S-22. 

 

**B.   ****CredibilityFindings**

** **

Reviewing the record of these proceedingscompels me to address and make findings on the credibility of certain witnesses.I find that thetestimony of Kevin Hinson, Anthony Williams, Kevin Williams, and Jimmy Givens tendedto be contradictory and not credible in several respects. Further, I credit thetestimony of Inspector Williams and Stephen Wright. 

 

**                               i.         ****Testimonyof Kevin Hinson**

 

On direct examination, projectmanager Kevin Hinson[7]stated that he picked up a piece of rock at the excavation site to have ittested by TDOT to determine whether it qualified as graded solid rock. Tr. I at215, 217. Hinson also agreed with Respondent’s counsel that every time Hinsonwas required to obtain rock at other job sites for TDOT to test, Hinson wasable to find suitable rock. Tr. I at 217. However, Hinson also admitted oncross-examination that Respondent performed core drilling “to ensure that therock would meet TDOT requirements,” and that TDOT performed a visual test ofthe rock to ensure that it was not “thin or slabby” and “up to the inspector’spreference.” Tr. I at 227–29.

 

Regarding Respondent’s use of thehoe ram, Hinson first agreed on cross-examination that Respondent used the hoeram to break rock. Tr. I at 230. Then, on redirect, Hinson stated that Respondentused the hoe ram “to break the larger rock that we could not move . . . to getit out of the way and load the other material that we wanted.” Tr. I at 232. Hinsonlater stated on recross-examination that if rock broken up by the hoe ram was“small enough, then yes, it could have been” loaded up and taken to the roadsite. Tr. I at 233. Hinson then contradicted himself again on redirect bystating that Respondent “couldn’t afford to break rock with a hoe ram and makeit cost efficient.” Tr. I at 234. I find that Hinson’s contradictions—coupledwith his answers to Respondent’s counsel’s leading questions—make his testimonynot credible.

 

**                             ii.         ****Testimonyof Anthony Williams**

 

The testimony of Foreman AnthonyWilliams[8]contained many contradictions. First, with respect to the hoe ram, AnthonyWilliams testified that Respondent used the hoe ram “just to break the biggerrocks that we couldn’t handle to move them out of the way” and to break largerocks that were too big for the bulldozer to move. Tr. I at 259–61. Thistestimony conflicts with the testimony of bulldozer operator Jimmy Givens—who statedthat he used the bulldozer to move large rocks—and excavator operator KevinWilliams—who stated that he pushed large rocks out of the way. Tr. I at 306,317. Anthony Williams also stated “it would have to be me” when asked “whowould be operating the hoe ram?” Tr. I at 261. However, Anthony Williams lateragreed that “[a]t least one other person . . . did operate the hoe ram.” Tr. Iat 272.

 

Second, Anthony Williams testifiedthat the only purpose of the slotted bucket was to remove dirt from the blastedmaterial. *Id.* Several other witnesses testified that the slotted bucketnot only removes dirt but is also a form of selecting appropriately sizedmaterial. Tr. I at 102–03, 117; Tr. II at 14–15, 53–54. 

 

Third, Anthony Williams stated thatdespite the quality of the excavated material being “not good” and comparableto waste at a quarry, the excavated material was used as graded solid rock forthe road repair project. Tr. I at 256–57. This testimony is in conflict withthat of Hinson, who mentioned core drilling and TDOT’s visual inspection toensure that the material met the specifications of graded solid rock. AnthonyWilliams also admitted on cross-examination that employees of TDOT were on site“every day” to ensure that the material Respondent was using at for the roadrepair qualified as graded solid rock. Tr. I at 275. 

 

Finally, Anthony Williams testifiedthat Ben Coleman—who served as Respondent’s superintendent of drilling andblasting—could not control whether the blasted material was too large or too smalland that Coleman could not “help when a big rock falls off.” Tr. I at 260. However,Coleman himself testified that “to some extent” he had “control over the sizeof the rock” that was blasted off and that, depending on the hardness of therock and its intended application, the blaster typically develops a drillingpattern and uses a specific type of explosive charge. Tr. II at 48–50. 

 

In additional to the factualcontradictions above, Anthony Williams was evasive throughout cross-examinationby the Secretary, further diminishing his credibility. *E.g.* Tr. I at269–74; Tr. I at 282 (Anthony Williams replied “[i]t drills” in response tocounsel’s question “[a]nd the drill does what?”). Consequently, I find AnthonyWilliams’ testimony not credible.

 

**                           iii.         ****Testimonyof Kevin Williams**

 

Comparing the testimony of excavatoroperator Kevin Williams[9]with the testimony of other witnesses reveals contradictions in his testimony. Forexample, Kevin Williams stated that “[a]ll the rock was put on the truck if itfit on the truck.” Tr. I at 309. Additionally, Kevin Williams stated that “ifhe couldn’t load” the rocks that were “as big as a pickup truck,” then he would“just push it to the side.” Tr. I at 306. This contradicts the testimony of otherwitnesses who stated that equipment could not move the large rocks, that thehoe ram was necessary to break the rocks so that they could be moved, and thatrocks broken up by the hoe ram were not loaded onto the trucks. Furthermore, Respondent’scounsel’s leading questions make Kevin Williams’ testimony less credible. Thefollowing exchange is one example:

 

Counsel:                      Okay.Did you ever use a hoe ram to break up those big rock[s] so that you could loadthe rock onto the trucks?

 

Kevin Williams:         No.

 

Counsel:                      Didanybody at the S.R. 141 job use the hoe ram to break up the very big rock toload it onto the truck?

 

Kevin Williams:         No.

 

Counsel:                      Now,when you work at the S.R 141 job, did you load up rock for any other purpose otherthan going down to the road that was next to the Caney Fork River?

 

Kevin Williams:         No.

 

Tr. I at 306–07.

 

**                           iv.         ****Testimonyof Jimmy Givens**

 

Bulldozer operator Jimmy Givens[10]agreed with counsel for Respondent’s comparison that “what the quarries consideredtrash is what you guys were using . . . as the bulk fill material.” Tr. I at318. However, on cross-examination, Givens stated that graded solid rock “isusually anything over [two feet] in diameter,” which highlights his lack ofknowledge regarding TDOT’s requirements for graded solid rock. Tr. I at 321. Further,Givens agreed that he was “not someone who was spending much time” at theexcavation site. Tr. I at 317.

 

**                             v.         ****Testimonyof Stephen Wright**

 

Further, the testimony of Givensand the testimony of Anthony Williams regarding the properties of graded solidrock are also at odds with Respondent’s witness Stephen Wright.[11]Wright testified that TDOT developed the graded solid rock standard in responseto a “massive failure” of Interstate 40 that was “caused by water seeping outof the ground and undermining the roadway foundation.” Tr. II at 11. Wrightfurther explained the importance of TDOT’s graded solid rock specification:

 

Tennesseedeveloped this graded solid rock spec, which is why you have to take the finesout of it. They want a rock that is from a 3-foot in diameter maximum down toabout a 6-inch rock is what they would consider perfect because that gives you—andyou put that in and it’s free draining. They basically, in areas where theybelieve there are potential for water to—the damage—the interface between thefield material you place and the natural ground, they will put this product in.And to their credit, it’s expensive, they do it more than most other states,but their roads stay there when they do that. They had a couple of high-profilefailures and this was determined to be the best method. So when you take thosebig rocks and lay them down and they have a higher interlocking angle, a phiangle it’s called, and it makes it much stronger and the water can free—flowfreely . . . through it and that gives just a tremendously stable base for therock.

 

Tr.II at 11–12. I find Wright’s testimony regarding the properties of graded solidrock to be credible. Wright’s testimony underscores the fact that Respondentwas required to use graded solid rock for the road repair due to its intrinsicvalue—namely, for building a strong foundation and for allowing water to flowfreely through it—which was important where the road had previously becomeunstable due to water damage. It is unlikely that the low quality material mentionedby Anthony Williams and Jimmy Givens would suffice for such a project.[12]

 

In sum, I find that the contradictions by severalof Respondent’s witnesses—within their own testimony and when compared to thetestimony of other witnesses—makes them less credible. It is not credible that Respondentonly used the hoe ram to break up rocks for the purpose of moving them out ofthe way.I find that the hoe ram was used to reduce excavated material in size for thepurpose of using at least some of that material as graded solid rock. DespiteRespondent’s contentions and Hinson’s testimony, it would *not* beprofitable to *not* utilize the rocks crushed with the hoe ram as gradedsolid rock. Resp’t Br. at 18, 21. This finding comports with the testimonyof Inspector Williams, who stated that he observed Respondent’s excavator “pickingup rocks that looked like they had been crushed with a hoe ram[] . . . and . .. loading them onto the Mack dump truck.” Tr. I at 108. The observationsof Inspector Williams are entitled to significant weight. *Harlan CumberlandCoal Co*.,20 FMSHRC 1275, 1278-79 (Dec. 1998).

 

Further, I find that the slotted bucketwas used not only to remove dirt and contaminants but also to selectappropriately sized material. Although the slotted bucket may not be the most practicalor efficient way to remove dirt and small rock from excavated material, Wrightconfirmed that it is possible to use a slotted bucket to create graded solidrock and that Wright Brothers had done so in the past. Tr. II at 15, 31–32, 42.Inspector Williams also testified that the slotted bucket is typically “usedfor screening and sizing rocks.” Tr. I at 102–03.

 

**II.            ****LEGALPRINCIPLES**

 

**A.   ****Jurisdiction Underthe Mine Act**

 

Mine Act jurisdiction applies to “[e]achcoal or other mine, the products of which enter commerce, or the operations orproducts of which affect commerce, and each operator of such mine, and everyminer in such mine.” 30 U.S.C. § 803. The term “coal or other mine” is definedas: 

 

(A) an area ofland from which minerals are extracted in nonliquid form or, if in liquid form,are extracted with workers underground, (B) private ways and roads appurtenantto such area, and (C) lands, excavations, underground passageways, shafts,slopes, tunnels and workings, structures, facilities, equipment, machines,tools, or other property including impoundments, retention dams, and tailingsponds, on the surface or underground, used in, or to be used in, or resultingfrom, the work of extracting such minerals from their natural deposits innonliquid form, or if in liquid form, with workers underground, or used in, orto be used in, the milling of such minerals, or the work of preparing coal orother minerals, and includes custom coal preparation facilities.

 

*Id.*§802(h)(1). Although the Act does not define “extracted” or “milling” withrespect to the term “minerals,” the Commission has held that the former means“the separation of a mineral from its natural deposit in the earth,” and thelatter includes “processes by which minerals are made ready for use.” *Drillex,Inc.*, 16 FMSHRC 2391, 2395 (Dec. 1994) (citations omitted) (holding thatseparating rock from its deposit in the earth was mineral extraction and that thecrushing and separation of rock constituted milling). 

 

Furthermore, the functional nature of theoperator’s activities is an important factor to consider when determiningwhether an operation is a “coal or other mine” under the Act. *Oliver M.Elam, Jr.*, 4 FMSHRC 5, 7 (1982). This functional analysis is a two-partinquiry that asks: (1) whether the party engaged in activities normallyperformed by a mine operator, and (2) whether the party performed theseactivities to make the extracted material suitable for a particular use or tomeet market specifications. *Id.* at 8.

 

            Withrespect to the “affect[ing] commerce” requirement, the Act defines “commerce”as “trade, traffic, commerce, transportation, or communication among theseveral States, or between a place in a State and any place outside thereof, orwithin the District of Columbia or a possession of the United States, orbetween points in the same State but through a point outside thereof.” 30U.S.C. § 802(b). The Commission reads this provision broadly and has held that“any mining or milling that an entity engages in for its own use constitutes‘commerce’ under . . . the Mine Act.” *Alaska, Dep’t of Trans.*, 36 FMSHRC2642, 2645 (Oct. 2014) (discussing the Second Circuit’s decision in *D.A.S.Sand & Gravel, Inc.**v. Chao*, 386 F.3d 460 (2d Cir. 2004)). 

 

            Anexception to MSHA jurisdiction exists if an operation is classified as a“borrow pit,” which is subject to the sole jurisdiction of the OccupationalSafety and Health Administration (“OSHA”) per an interagency agreement between MSHAand OSHA. *See*MSHA-OSHA Interagency Agreement, 44 Fed. Reg. 22,827 (Apr.17, 1979), *amended by* 48 Fed. Reg. 7521 (Feb. 22, 1983) (“InteragencyAgreement”). According to the Interagency Agreement, a borrow pit is definedas:

 

[A]n area of landwhere the overburden, consisting of unconsolidated rock, glacial debris, orother earth material overlying bedrock is extracted from the surface. Extractionoccurs on a one-time only basis or only intermittently as need occurs, for useas fill materials by the extracting party in the form in which it is extracted.No milling is involved, except for the use of a scalping screen to remove largerocks, wood and trash. The material is used by the extracting party more forits bulk than its intrinsic qualities on land which is relatively near theborrow pit.

 

*Id.* at 22,828. “Milling”is further defined by the Interagency Agreement as “the art of treating thecrude crust of the earth to produce therefrom the primary consumer derivatives,”and “the essential operation in all such processes is separation of one or morevaluable desired constituents of the crude from the undesired contaminants withwhich it is associated.” *Id*. at 22,829. The Interagency Agreementprovides examples of milling processes, including “crushing” and “sizing.” *Id.*“Crushing” is defined in part as “the process used to reduce the

sizeof mined materials into smaller, relatively coarse particles,” and “sizing” isdefined as “the process of separating particles of mixed sizes into groups ofparticles of all the same size, or into groups in which particles range betweenmaximum and minimum sizes.” *Id.*at 22,829–30. 

 

When determining whether a facilityis a “mine” under the Act, “Congress clearly intended that any jurisdictionaldoubts be resolved in favor of coverage by the Mine Act.” *Watkins Eng’rs& Constructors,* 24 FMSHRC 669, 675–76 (July 2002) (citing S. Rep. No.181, 95th Cong., 1st Sess. 14 (1977), *reprinted in* Senate Subcomm. onLabor, Comm. on Human Res., 95th Cong., 2nd Sess., *Legislative History ofthe Federal Mine Safety and Health Act of 1977* at 602 (1978)). The InteragencyAgreement references this legislative history, and makes clear that questionsof jurisdiction between MSHA and OSHA should be resolved in favor of coverageby the Mine Act. 44Fed. Reg. at 22,828.

 

**B.   ****Gravity**

** **

The Commission generally expresses gravityas the degree of seriousness of the violation. *Hubb Corp*., 22 FMSHRC606, 609 (May 2000); *Consolidation Coal Co*., 18 FMSHRC 1541, 1549 (Sept.1996). The Commission has pointed out that the focus of the gravity inquiry “isnot necessarily on the reasonable likelihood of serious injury, which is thefocus of the [significant and substantial] inquiry, but rather on the effect ofthe hazard if it occurs.” *Consolidation*, 18 FMSHRC at 1550; *cf. Harlan Cumberland Coal Co*., 12 FMSHRC 134, 140-41(Jan. 1990) (ALJ) (explaining that some violations are serious notwithstandingthe likelihood of injury, such as a violation of an important safety standard,a violation demonstrating recidivism or defiance by the operator, or aviolation that could compound the effects of other conditions).

 

**C.   ****Negligence**

** **

      Negligence is conduct that fallsbelow the standard of care established under the Mine Act. Under theSecretary’s regulations, an operator is held to a high standard of care. 30C.F.R. § 100.3(d). Operators must be wary of conditions and practices that couldcause injuries, and are required to take the necessary precautions to preventor correct those conditions or practices. *Id*. The Secretary definesmoderate negligence as having occurred in connection with a violation when“[t]he operator knew or should have known of the violative condition or practice,but there are mitigating circumstances.” *Id.*§ 100.3(d), Table X. TheCommission generally assesses negligence by considering what actions a reasonablyprudent person familiar with the mining industry, the relevant facts, and theprotective purpose of the cited regulation would have taken under thecircumstances. *Leeco, Inc*., 38 FMSHRC 1634, 1637 (July 2016); *seealso**Brody Mining, LLC*, 37 FMSHRC 1687, 1702 (Aug. 2015) (explainingthat Commission ALJs “may evaluate negligence from the starting point of atraditional negligence analysis” rather than adhering to the Secretary’s Part100 definitions); *accord Mach Mining, LLC v. Sec’y of Labor*, 809 F.3d1259, 1263-64 (D.C. Cir. 2016).

 

**III.          ****ANALYSIS**

 

Respondent is contesting MSHA’sjurisdiction as well as Inspector Williams’ negligence determinations withrespect to each of the citations and orders. Resp’t Br. at 8, 32. For thereasons set forth below, I conclude that Respondent’s excavation site is a“mine” under the Mine Act and is subject to MSHA jurisdiction. My negligencedetermination for each citation and order is also set forth below.

 

**A.   ****Whether JonesBrothers Operates a “Mine” under the Mine Act**

 

**                               i.         ****TheExcavation Site is a “Coal or Other Mine” Affecting Commerce**

 

The Secretary argued thatRespondent’s excavation site is a “coal or other mine” under the Mine Actbecause Respondent extracted, milled, and prepared graded solid rock—a mineral—andthat Respondent’s operations affected commerce. Sec’y Br. at 7–16. Respondentfailed to offer any argument that the excavation site was not a “coal or othermine,” or that Respondent’s operations did not affect commerce, and instead,solely chose to argue that it was operating a borrow pit under the InteragencyAgreement. Resp’t Br. at 7 (“[T]he Interagency Agreement establishes the issuesin this case.”).

 

I find that Respondent’s operationfalls within the definition of a “coal or other mine” under the Mine Act andthat Respondent’s operation affected commerce. 30 U.S.C. § 803. The Mine Act defines“coal or other mine” as “an area of land from which minerals are extracted . .. and . . . lands, excavations, . . . facilities, [and] equipment . . . usedin, or to be used in, the milling of such minerals, or the work of preparing .. . other minerals.” 30 U.S.C. § 802(h)(1)(A), (C). Respondent separated minerals including limestone androcks from the earth through drilling, blasting, and excavating, which constitutesmineral extraction and makes Respondent’s operation a “coal or other mine”under the Act. 30 C.F.R. § 802(h)(1)(A); *Drillex, Inc.*, 16 FMSHRC at2395.

 

Although Respondent’s extraction ofminerals is enough to make its operation a “coal or other mine” under the Act,I also find that Respondent engaged in milling and preparation of the extractedminerals. 30C.F.R. § 802(h)(1)(C); *Drillex, Inc.*, 16 FMSHRC at 2395 (holding that theoperator “engaged in both mineral extraction and milling, either of whichindependently qualifies its operation as a ‘mine’ within the meaning of the Act”).Respondent engaged in mineral milling and preparation by using the hoe ram andslotted bucket to size and remove dirt from the extracted material—processes bywhich Respondent made the extracted material “ready for use” as graded solidrock. *See Drillex, Inc.*, 16 FMSHRC at 2395; *see also Marshall v.Stoudt’s Ferry Preparation Co.*, 602 F.2d 589, 592 (3d Cir. 1979)(separation of gravel from dredged material was mineral preparation).

 

With respect to the requirementthat Respondent’s operation affect commerce, there is no dispute that Respondentoperated the excavation site to fulfill its obligation to produce graded solidrock for the road repair. Because “any mining or milling that an entity engagesin for its own use constitutes ‘commerce’ under . . . the Mine Act,” andbecause Respondent extracted, milled, and prepared graded solid rock to fulfilla contractual obligation, Respondent’s operation affected commerce. *See Alaska,Dep’t of Trans.*, 36 FMSHRC at 2645. 

 

Further, under the Commission’sfunctional *Elam*test, *Oliver M. Elam, Jr.*, 4 FMSHRC at 7, Mine Actjurisdiction over Respondent is appropriate. With respect to the first prong,Respondent engaged in activitiesnormally performed by a mine operator, such as: core drilling and sample testing;the creation of roads, benches, and a highwall; removal of overburden; drillingand blasting; excavating material using mechanized equipment; the processing ofthe excavated material using the hoe ram and slotted bucket; and loading theexcavated material onto trucks for transportation. Regarding the second prong, Respondentengaged in activities to make the extracted material suitable for a particularuse or to meet market specifications by blasting in a pattern, using the hoeram to break down large rocks, and using the slotted bucket to select cleanrock that was within the size requirements and phi angle dimensions for gradedsolid rock.

 

Finally, although Respondent arguedthat subjecting its operation to Mine Act jurisdiction “would represent adrastic deviation from prior MSHA enforcement practices,” this argument is notpersuasive. Resp’t Br. at 8. The Commission has found Mine Act jurisdictionover entities engaged in excavation for purposes of road construction,maintenance, and repair. *See**Alaska, Dep’t of Trans.*, 36 FMSHRC at2642 (excavated material used to maintain road); *see also**Drillex, Inc.*, 16 FMSHRC at 2396(“extraction and processing of minerals were not merely incidental to roadconstruction”); *Ammon Enter.*, 30 FMSHRC 799 (July 2008) (ALJ) (excavatedmaterial used for road construction); *N.Y. State Dep’t of Transp.,*2 FMSHRC 1749(July 1980) (ALJ) (excavated material used for permanent repair of roads). Respondent’scontention that MSHA has not treated similar operations as mines is irrelevant;“allegations of selective enforcement cannot provide a basis for exemptionsfrom Mine Act coverage” because MSHA is statutorily required to exercisejurisdiction over all mines. *Kerr Enter., Inc.*, 26 FMSHRC 953, 957 (Dec.2004) (ALJ) (citing *Air Prods. and Chems., Inc.*, 15 FMSHRC 2428, 2435n.2 (Dec. 1993) (concurring opinion)); 30 U.S.C. § 813(a) (“[T]he Secretaryshall make inspections of . . . each surface coal or other mine in its entiretyat least two times a year.”). Ultimately, Deference is owed to the Secretary’sreasonable interpretation of the jurisdictional terms of the Mine Act. *Alaska, Dep’t ofTrans.*,36 FMSHRC at 2648 (citing *City of Arlington v. FCC*, 133 S. Ct. 1863,1868–73 (2013)).

 

**                             ii.         ****TheExcavation Site Fails to Meet the “Borrow Pit” Criteria**

 

Respondent’s primary contention isthat the excavation site is a borrow pit under the Interagency Agreement. Respondentset forth a host of arguments in its post-hearing brief, including that: (1)Respondent only removed unconsolidated rock, not bedrock; (2) Respondent’sextraction activities were “only on a one-time basis or intermittently as needoccurred”; (3) the extracted material was “fill” that was used in the form inwhich it was extracted and used more for its bulk than its intrinsic qualities;(4) Respondent did not engage in milling; and (5) the extracted material wasused on land relatively near the site of extraction. Resp’t Br. at 8–25. TheSecretary argued that Respondent’s operation was not a borrow pit because: (1) Respondentwas not extracting overburden; and (2) Respondent was not extracting materialon a one-time or intermittent basis. Sec’y Br. at 16–18.

 

Respondent’s operation fails to meet the borrowpit criteria set forth by the Interagency Agreement. Importantly, theCommission has treated the criteria for a borrow pit as necessary elements and notas factors to be considered. *Drillex, Inc.*, 16 FMSHRC at 2391 (materialwas used on land “relatively near” the extraction site, but operation failed tomeet other borrow pit requirements); *Jermyn Supply Co., LLC*, 39 FMSHRC1472 (July 2017) (ALJ) (extraction operation was active only “sporadically,” butthe operator milled the material and the material was not being used for bulkfill); *State of Alaska, Dep’t of Trans.*, 33 FMSHRC 1550 (June 2011) (ALJ)(screening operation was active for three or four weeks per year, but theoperation was “sizing” aggregate and used specific aggregate for its “intrinsicqualities”); *Island Constr. Co, Inc.*, 11 FMSHRC 2448 (Dec. 1989) (ALJ) (materialwas used “in the form in which it [wa]s extracted as fill,” but operationfailed to meet other borrow pit requirements).

 

I find that extraction—whichoccurred up to six days per week over a period of at least several months—wasnot “on a one-time basis or only intermittently as need occurred,” as requiredby the Interagency Agreement. Further, Respondent engaged in “milling” by “sizing”and “crushing” through use of the calculated blasting pattern, hoe ram, and slottedbucket. Under the Interagency Agreement, MSHA exercises jurisdiction wherethere is milling, except for the use of a scalping screen—which Respondent didnot utilize—“to remove large rocks, wood and trash.” 44 Fed. Reg. at 22,828. Respondentargued that it could not have engaged in “sizing” because TDOT’s graded solidrock specification imposes no minimum size requirement. Resp’t Br. at 22. Ifind that argument to be unpersuasive. The Standard Specifications plainlystate that gradedsolid rock must have a “[m]aximum particle size of 3 feet in any direction” and“[p]article size distribution in which at least 50% of the rock is uniformlydistributed between 1 foot and 3 feet in diameter, and no more than 10% is lessthan 2 inches in diameter.”Ex. S-28 at 10–11. Also, Wright’s testimony made clear thatgraded solid rock should be composed of rocks between 3 feet and 6 inches indiameter to achieve the optimal phi angle and to achieve a free-draining andstable base for the roadway. Tr. II at 12. I find that in order to meet TDOT’sgraded solid rock specification, Respondent separated the extracted material intogroups in which particles ranged between maximum and minimum sizes—i.e. rocksthat were compliant with TDOT’s size requirement and rocks that werenoncompliant. Further,the graded solid rock was not used solely as bulk, but was instead used morefor its intrinsic drainage properties—which were essential for the road repairproject Respondent was engaged in. The free-draining and free-flowing natureof graded solid rock is why TDOT created the specification for that material. Ifind that although Respondent used the graded solid rock in bulk to fill in theroadway, it was selected and used more for its intrinsic properties than asplain bulk fill. It is true that Respondent used the graded solid rock “on landwhich [wa]s relatively near” the excavation site. However, Respondent’s failureto meet the other borrow pit requirements is fatal to its argument. 

 

The legislative history of the MineAct is unequivocal that jurisdictional doubts should be resolved in favor ofcoverage by the Mine Act, and the Interagency Agreement makes this overtlyclear. 44Fed. Reg. at 22,828 (mentioning “Congress’ intention that doubts be resolved infavor of inclusion of a facility within the coverage of the Mine Act”). Whether a facilityis subject to MSHA or OSHA jurisdiction is significant because of the differentinspection practices between the agencies. Inspector Williams testified that MSHAinspects open-pit quarries twice per year in unannounced visits. Tr. I at 124–25;*see also* 30 U.S.C. § 813(a) (“Authorized representatives of theSecretary . . . shall make frequent inspections and investigations in coal orother mines each year.”). This is quite different than the circumstances underwhich OSHA conducts inspections, often after an accident occurs or a complaintis lodged. *Cf. Donovan v. Dewey*, 452 U.S. 594, 603–04 n.9 (1981) (contrastingthe “certainty and regularity” of the Mine Act’s inspection scheme with the discretionaryinspection scheme of the Occupational Safety and Health Act).

 

Commission precedent supports theconclusion that Respondent’s operation is not a borrow pit. The Commission’sdecision in *Drillex, Incorporated*, 16 FMSHRC 2391 (Dec. 1994), containssimilar facts to the instant matter, and in that case, the Commission held thatthe borrow pit exception did not apply. *Drillex* concerned a projectwhere the operator was contracted to perform “drilling, blasting, rockexcavation and crushing” of 20,000 cubic meters of stone “to be used as fillfor embankment and road base.” *Id.* at 2392. The operator excavated and processedmaterial approximately three times per week and reduced the material in sizeusing a hydraulic hammer. *Id.* at 2393, 2396. The Commission held thatthe operator did not qualify for the borrow pit exception because: (1)extraction did not occur on an intermittent basis; (2) the operator engaged in“milling” by crushing the excavated material into smaller particles; and (3)the material was sized for its intended use as fill, and was therefore notsolely “bulk” in nature. *Id.* at 2396. Here, Respondent similarly drilled,blasted, and excavated material for the purpose of road construction, extractedthe material more than intermittently, and milled the material by sizing itwith the hoe ram and slotted bucket.

 

In *State of Alaska, Departmentof Transportation*, the Commission held that the Interagency Agreement classifiesopen pit mining of sand and gravel as an example of “unquestioned MSHAauthority under the Mine Act.” 36 FMSHRC at 2648 (citing 44 Fed. Reg. at22,829). By separating excavated material by size and excluding oversized rock,the Commission found that the operator was engaging in “sizing” and “milling,”and therefore was not covered by the Interagency Agreement’s borrow pitexception. *Id.* at 2649. In the instant matter, Respondent was requiredto conform to TDOT’s size requirements for graded solid rock, and achievedthose requirements through the use of blasting, the hoe ram, and the slottedbucket. Respondent “did more than ‘scalp’ away large rocks” and debris from theblasted material by using the hoe ram and slotted bucket, and therefore *Stateof Alaska* instructs that Respondent’s operation is not a borrow pit.

 

In its post-hearing brief,Respondent cited to *David Duquette Excavating*, 37 FMSHRC 744 (Apr. 2015)(ALJ) and *Kerr Enterprises, Inc.*, 26 FMSHRC 953 (Dec. 2004) (ALJ).[13]Resp’t Br. at 10–11. In *Duquette*, the ALJ ruled that the earthenmaterial extraction operation was a borrow pit and exempt from Mine Actjurisdiction because no milling was involved. *Duquette*, 37 FMSHRC at751. The extracted material in *Duquette*was stipulated to be “generallyclean fill” from an embankment, and the operator used a single scalping screenonly to remove large rocks, wood, and trash on an as-needed basis. *Id.* Theextracted material was then loaded onto a dump truck and taken offsite, where thematerial was used in the form it was extracted as bulk fill. *Id.*In *Kerr*,the operation involved the “full time continuous extraction” of earthenmaterial from a pit over multiple years. 26 FMSHRC at 954, 957. The operator in*Kerr* then processed approximately 20 percent of the extracted material byusing a scalping screen to remove debris. *Id.* at 954. The processedmaterial was sold to more than fifty customers as far as twenty-five miles awayfrom the extraction pit. *Id.*Although Respondent argues that itsexcavation site “is much closer to *Duquette*than *Kerr*,” I findthat neither case is a close comparison to the circumstances at Respondent’s operation.Respondent extracted minerals far more frequently than the “three times in twoyears” in *Duquette*, and less frequently than the “full time continuousextraction” over multiple years in *Kerr*. Additionally, unlike theextracted “clean fill” material in *Duquette*, the material fromRespondent’s operation could not have been used in the form it was extractedbecause of the presence of dirt and mud seams. Finally, the material Respondentexcavated was not used primarily as bulk fill but instead for its intrinsicvalue.

 

In sum, Respondent fails to meet allof the elements of a borrow pit, as set forth in the Interagency Agreement. BecauseRespondent’s excavation site is not a borrow pit and because Respondent extracted,milled, and prepared minerals in an operation that affected commerce,Respondent’s excavation site is a “mine” under the Act and is subject to MSHAjurisdiction.

 

**B.   ****NegligenceAssessment for Citations and Orders**

 

Respondent indicated that besides the issueof Mine Act jurisdiction, Respondent solely wished to contest the level ofnegligence assessed for each citation and order. Tr. I at 118–19. The Secretaryargued that the negligence assessment issued by Inspector Williams for eachcitation and order was correct and should be upheld. Sec’y Br. at 20–25. TheRespondent argued that the negligence assessment issued by Inspector Williamsshould be disregarded because Inspector Williams relied on the statement of oneof Respondent’s employees regarding management’s knowledge of the potential forMine Act jurisdiction over the excavation site, and the employee’s statementwas unreliable hearsay. Resp’t Br. at 32–34. As I have noted above, I discountthe alleged statement made to Inspector Williams due to reliability concerns. Thefollowing section contains an analysis of the level of negligence for eachviolation. 

 

**                               i.         ****CitationNo. 8817591**

** **

Citation No. 8817591 has a proposed penaltyof $100.00 and was assessed as involving high negligence. Ex. S-4. Citation No.8817591 alleges a violation of 30 C.F.R. § 56.1000, which requires the operatorof any mine to “notify the nearest MSHA Metal and Nonmetal Mine Safety andHealth district office before starting operations, of the approximate or actualdate mine operation will commence.” 30 C.F.R. § 56.1000. The narrative portionof the citation is as follows:

 

The operator ofthe mine, Jones Bros., Inc., did not notify the local Mine Safety and HealthAdministration office before starting operations, of the approximate or actualdate mine operations commenced. The notification shall include the mine name,location, company name, mailing address, person in charge, and whether theoperation will be continuous or intermittent. Drilling, blasting, and sizing ofthe rock material was occurring in the open pit mine. The rock material wasbeing sold to the State of Tennessee, on a nearby project. This action wasaffecting interstate commerce.

 

Ex.S-4 at 1. Respondent terminated the citation by “notif[ying] MSHA in theSoutheast District Office of their work in the open pit mine.” *Id.* at 2.

 

            InspectorWilliams testified that he assessed Citation No. 8817591 as involving highnegligence because Respondent was previously a contractor at other mines andwas therefore familiar with MSHA’s regulations. Tr. I at 120–21. I agree withInspector Williams’ negligence assessment. I find the gravity of this violationto be serious because without notification of the commencement of operations,MSHA has no reliable way to ensure the health and safety of miners through inspectionsand enforcement of the Act.

 

**                             ii.         ****CitationNo. 8817592**

** **

Citation No. 8817592 has a proposedpenalty of $100.00 and was assessed as involving moderate negligence. Ex. S-17.Citation No. 8817592 alleges a violation of 30 C.F.R. § 56.4402, which provides that “[s]mall quantities of flammable liquids drawnfrom storage shall be kept in safety cans labeled to indicate the contents.” 30C.F.R. § 56.4402. The narrative portion of the citation is as follows:

 

A red Eagle brand5 gallon safety can was filled almost full with an unknown liquid. The portabletemporary container was not labeled nor with any markings to indicate itscontents. The can had been in the present condition for approximately a week,and was located on the Mack fuel truck #13606. This created a hazard to anunbeknownst miner being exposed to flammable characteristics and physicalconditions without HazCom warnings.

 

Ex.S-17 at 1. Respondent terminated the citation by labeling “the safety can . . .to identify the contents, ‘GAS.’” *Id*. Inspector Williams tookphotographs of the safety can before and after it was labeled. Ex. S-3 at 16,19; Ex. S-19. 

 

Inspector Williams testified that heassessed Citation No. 8817592 as involving moderate negligence becauseInspector Williams “was told[] management . . . did not know that the canneeded to be labelled,” and Inspector Williams credited that statement. Tr. Iat 141. I agree with Inspector Williams’ negligence assessment. I find thegravity of this violation to be reasonably serious because the risk that aminer might mistake the contents of the safety can for a different liquid issomewhat mitigated by the red color and warnings on the can. Ex. S-3 at 16, 19.

 

**                           iii.         ****CitationNo. 8817593**

** **

Citation No. 8817593 has a proposedpenalty of $243.00 and was assessed as involving moderate negligence. Ex. S-20.Citation No. 8817593 alleges a violation of 30 C.F.R. § 56.14132(a), which provides that “[m]anually-operated horns or other audiblewarning devices provided on self-propelled mobile equipment as a safety featureshall be maintained in functional condition.” 30 C.F.R. § 56.14132(a). Thenarrative portion of the citation is as follows:

 

The Mack dumptruck #16334 did not have a maintained back up alarm while being operated onthe mine site. The driver has an obstructed view to the rear and could not see otherminers who were on foot in the common area of the mine, i.e. restrooms, parkinglot and ingress/egress roadway. This created a hazard to any miner being backedover when no advance warning was heard of any sudden movement. The heavy equipmentcould cause crushing injuries, leading up to death, being sustained if struckwith the truck.

 

Ex.S-20 at 1. Respondent terminated the citation by replacing “the backup alarm .. . with a new unit.” *Id.* at 2.

 

Inspector Williams testified that heassessed Citation No. 8817593 as involving moderate negligence because Respondentwas not aware of the hazardous condition, and because Inspector Williamsthought that the truck had a back-up alarm, “but it just wasn’t working.” Tr. Iat 145. I agree with Inspector Williams’ negligence assessment. I find thegravity of this violation to be reasonably serious because Respondent had lessthan ten employees working at the project, and few employees were outside ofequipment while trucks were being loaded—thereby somewhat mitigating the riskof a vehicle strike.

 

**                           iv.         ****CitationNo. 8817594**

** **

Citation No. 8817594 has a proposed penaltyof $243.00 and was assessed as involving moderate negligence. Ex. S-22. CitationNo. 8817594 alleges a violation of 30 C.F.R. § 56.14104(b)(2), which requires the use of “a stand-off inflation device whichpermits persons to stand outside of the potential trajectory of wheelcomponents” during tire inflation. 30 C.F.R. § 56.14104(b)(2). The narrativeportion of the citation is as follows:

 

The mine hadaccess to various air compressors on the site. These units were being used toinflate tires on the heavy equipment, as needed. The mine operator did not havea stand-off inflation device to limit a miner's exposure to exploding tires. Injuriesof lacerations, contusions, fractures, impalement and/or leading up to deathcould be sustained from flying debris when near the potential trajectory ofwheel components.

 

Ex.S-22 at 1. Respondent terminated the citation by “purchas[ing] a stand-offdevise [sic] to be used on the mine site.” *Id.* at 2. Inspector Williamstook photographs of an air compressor and the stand-off device. Ex. S-3 at 17,18, 25; Ex. S-24. 

 

Inspector Williams testified that heassessed Citation No. 8817594 as involving moderate negligence because “managementwas not aware that they needed a stand-off device,” and Inspector Williamscredited that statement by management. Tr. I at 147. I agree with InspectorWilliams’ negligence assessment. I find the gravity of this violation to beserious because of the risk of fatal injury, and the fact that there weremultiple air-compressors on site, as well as multiple vehicles and pieces of equipmentthat used rubber tires.

 

**                             v.         ****OrderNo. 8817595**

** **

Order No. 8817595 has a proposed penalty of$1,842.00 and was assessed as involving high negligence. Ex. S-9. Order No.8817595 alleges a violation of 30 C.F.R. § 46.5(a), which requires that eachnew miner receive no less than 24 hours of new miner training. 30 C.F.R. § 46.5(a). The narrative portion of the citation is as follows:

 

The mine operatorhad failed to train six (6) of their employees. They had not received theMSHA-required 24 Hour New Miner training within the 90 days after beginningwork at the mine. These six employees could not provide documentation of anyprevious mining experience. The mine operator was aware of the Part 46 trainingrequirements. The mine operator must withdraw the . . . miners from the mineuntil they receive the required 24 hours of training. 

** **

Ex.S-9 at 1. Respondent terminated the order by delivering “24 hours of New Minertraining to the 6 miners” on April 7, 2016. *Id.* at 3.

 

Inspector Williams testified that heassessed Order No. 8817595 as involving high negligence because Respondent waspreviously a contractor at other mines and was therefore familiar with MSHA’sregulations. Tr. I at 130–31. I agree with Inspector Williams’ negligenceassessment. I find the gravity of this violation to be serious because anuntrained miner is a hazard to himself and other miners.

** **

**                           vi.         ****OrderNo. 8817596**

** **

Order No. 8817596 has a proposed penalty of$112.00 and was assessed as involving moderate negligence. Ex. S-11. Order No.8817596 alleges a violation of 30 C.F.R. § 46.8(a)(1), which requires that each miner be provided with “no less than 8hours of annual refresher training” within “12 months after the miner beginswork at the mine.” 30 C.F.R. § 46.8(a)(1). The narrative portion of the citation is as follows:

 

Kevin Williams,excavator operator, had not received Annual Refresher Training within the lasttwelve (12) months. Refresher training was last given to this miner, February2015. [T]he mine operator was aware of the training requirements. The operatoris hereby ordered to withdraw Kevin Williams from the mine until he hasreceived the 8 hours of required training. 

** **

Ex.S-11 at 1. Respondent terminated the order by delivering “8 hours of AnnualRefresher Training to the miner” on April 8, 2016. *Id.* at 2.

 

Inspector Williams testified that heassessed Order No. 8817596 as involving moderate negligence because KevinWilliams “was somewhat trained . . . and he was an experienced miner.” Tr. I at132. Therefore, Inspector Williams credited Respondent “for at least having himtrained once a long time ago.” *Id.* I agree with Inspector Williams’negligence assessment. I find the gravity of this violation to be reasonablyserious because the risk of an untrained miner was somewhat mitigated by KevinWilliams having worked for Respondent for many years and having some trainingas a miner.

**                          vii.         ****CitationNo. 8817597**

** **

Citation No. 8817597 has a proposedpenalty of $100.00 and was assessed as involving high negligence. Ex. S-6. CitationNo. 8817597 alleges a violation of 30 C.F.R. § 41.11, which requires the mineoperator to notify MSHA of the operator’s legal identity within 30 days ofcommencing operations at the mine. 30 C.F.R. § 41.11. The narrative portion ofthe citation is as follows:

 

The operator ofthe mine failed to notify the appropriate district manager of the Mine Safetyand Health Administration in the Southeast district in which the mine islocated of the legal identity of the operator. This mine had been in productionsince 28 August 2015, with numerous miners performing drilling, blasting, andsizing of rock material.

 

Ex.S-6 at 1. Respondent terminated the citation by filing “the required Legal IdentityReport (2000-7 form) [sic] with MSHA” on April 18, 2016. *Id.* at 2. 

 

Inspector Williams testified that heassessed Citation No. 8817597 as involving high negligence because Respondentwas previously a contractor at other mines and was therefore familiar withMSHA’s regulations. Tr. I at 126. I agree with Inspector Williams’ negligenceassessment. I find the gravity of this violation to be moderate because Respondent’sfailure to submit the legal identity report was a recordkeeping violation. 

 

**                        viii.         ****CitationNo. 8817598**

** **

Citation No. 8817598 has a proposedpenalty of $100.00 and was assessed as involving moderate negligence. Ex. S-13.Citation No. 8817598 alleges a violation of 30 C.F.R. § 50.30(a), which requires mine operators to complete and submit a MSHA Form7000-2 within 15 days after the end of each calendar quarter. 30 C.F.R. §50.30(a). The narrative portion of the citation states that “[a]n MSHA #7000-2(Quarterly Employment Report) for the 3rd Quarter 2015 (July, August,September) was not completed nor mailed to MSHA’s Health and Safety AnalysisCenter prior to the required 15 days after the end of each calendar quarter,October 15, 2015.” Ex. S-13 at 1. Respondent terminated the citation by filing“the Q3 Mine Employment and Production Report.” *Id.* at 2. 

 

Inspector Williams testified that he assessedCitation No. 8817598 as involving moderate negligence because Respondentpreviously submitted information while serving as a contractor at other minesand was therefore familiar with the reporting requirement. Tr. I at 135. Iagree with Inspector Williams’ negligence assessment. I find the gravity ofthis violation to be moderate because Respondent’s failure to submit thequarterly employment form was a recordkeeping violation. 

 

**                           ix.         ****CitationNo. 8817599**

** **

Citation No. 8817599 has a proposed penaltyof $100.00 and was assessed as involving moderate negligence. Ex. S-15. CitationNo. 8817599 alleges a violation of 30 C.F.R. § 50.30(a), which requires mine operators to complete and submit a MSHA Form7000-2 within 15 days after the end of each calendar quarter. 30 C.F.R. §50.30(a). The narrative portion of the citation states that “[a]n MSHA #7000-2(Quarterly Employment Report) for the 4th Quarter 2015 (October, November,December) was not completed nor mailed to MSHA's Health and Safety Analysis Centerprior to the required 15 days after the end of each calendar quarter, January15, 2016.” Ex. S-15 at 1. Respondent terminated the citation by filing “the Q4Mine Employment and Production Report.” *Id.* at 2.

 

Inspector Williams testified that heassessed Citation No. 8817599 as involving moderate negligence for the samereason as the violation in Citation No. 8817598—because Respondent previouslysubmitted information while serving as a contractor and was therefore familiarwith the reporting requirement. Tr. I at 135. I agree with Inspector Williams’negligence assessment. I find the gravity of this violation to be moderatebecause Respondent’s failure to submit the quarterly employment form was arecordkeeping violation.

** **

**IV.          ****PENALTY**

 

Section 110(i) ofthe Mine Act grants the Commission the authority to assess all civil penaltiesprovided for by the Act. *Mize Granite Quarries, Inc.*, 34 FMSHRC 1760,1763 (Aug. 2012) (citing**30 U.S.C. § 820(i)). In determining penaltyamounts, Section 110(i) directs the Commission to consider:

 

[T]he operator’shistory of previous violations, the appropriateness of such penalty to the sizeof the business of the operator charged, whether the operator was negligent,the effect on the operator’s ability to continue in business, the gravity ofthe violation, and 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). 

 

            TheCommission and its ALJs are not bound by the penalties proposed by theSecretary, nor are they governed by MSHA’s Part 100 regulations, although ALJpenalty assessments “must reflect proper consideration” of the Section 110(i)criteria. *Am. Coal Co.*, 38 FMSHRC 1987, 1992-93 (Aug. 2016) (citationsomitted). In addition to considering the Section 110(i) criteria, the judgemust provide a factual basis upon which the Commission can perform its reviewfunction. *See Martin Co. Coal Corp.*, 28 FMSHRC 247, 265-66 (May 2006)(citing *Sellersburg*, 5 FMSHRC 287, 292-93 (Mar. 1983)). My analysis ofthe Section 110(i) factors is set forth below.

 

**A.   ****Violation History;Size of Operator; Ability to Continue in Business**

 

Respondent previouslyreceived two section 104(a) citations while serving as a contractor, and paidthe $343.00 proposed penalty. Ex. S-8 at 2. Additionally, Anthony Williamstestified that he supervised seven of Respondent’s employees at the road repairproject. Tr. I at 247. I find that Respondent is a small-sized operator with aminimal history of violations. Additionally, there is no evidence that theproposed penalty would directly impact Respondent’s ability to continue inbusiness, and Respondent did not raise such a claim. “The Commission has heldthat ‘[i]n the absence of proof that the imposition of authorized penaltieswould adversely affect [an operator’s] ability to continue in business, it ispresumed that no such adverse [e]ffect would occur.”’ *John Richards Constr.*,39 FMSHRC 959, 965 (May 2017) (quoting *Sellersburg Co.*, 5 FMSHRC 287,294 (Mar. 1983)).

 

**B.   ****Negligence andGravity**

 

My analysis of thenegligence and gravity of the violations is set forth in section III.B.i–ix. 

 

**C.   ****Good Faith**

 

Good faith isreflected in the actions taken to abate the violations and in the testimonyregarding Respondent’s abatement efforts, as described in section III.B.i–ix.

 

**D.   ****Conclusion**

 

After consideringthe six statutory penalty criteria, I assess a penalty of $2,940.00 for theviolation at issue in this case.

 

 

**ORDER**

** **

****Respondent ishereby **ORDERED**to pay a total penalty of $2,940.00 for the violation atissue in this docket within thirty (30) days of the date of this Decision andOrder.[14]

 

** **

** **

 

/s/ Priscilla M.Rae

Priscilla M. Rae

                                                                        AdministrativeLaw Judge

 

 

 

 

 

 

 

Distribution:

 

WillowEden Fort, Attorney, Office of the Solicitor, 618 Church Street, Suite 230Nashville, TN 37219 (Fort.Willow@dol.gov) 

 

DouglasR. Pierce, Esq., KING & BALLOW, 315 Union Street, Suite 1100, Nashville, TN37201 (dpierce@kingballow.com)  

 

MichaelD. Oesterle, Esq., KING & BALLOW, 315 Union Street, Suite 1100, Nashville,TN 37201 (moesterle@kingballow.com)

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[1] In this decision,“Tr. I” refers to the transcript from the first day of the hearing, and “Tr.II” refers to the transcript from the second day of the hearing. TheSecretary’s exhibits are numbered Ex. S-1 to S-31. The Respondent’s exhibitsare numbered Ex. R-2 to R-8. The Secretary’s post-hearing brief is abbreviatedas “Sec’y Br.,” and the Respondent’s post-hearing brief is abbreviated as “Resp’tBr.” The parties did not submit joint stipulations.

 

[2] TDOT employee KenFlynn testified that the “slide” damage to State Route 141 involved the roadway“slipping and falling down.” Tr. I at 26. Respondent’s witness Stephen Wrighttestified that the steep, mountainous terrain of the area can cause water toseep out of the ground and undermine roadway foundations. Tr. II at 11–12. 

 

[3] Core drillingallowed Respondent to take a subsurface rock sample—without drilling, blasting,and excavating—by using a hollow drill bit. Tr. I at 98–99.

 

[4] The slottedexcavator bucket, also referred to as a “shaker bucket,” had twenty-four slotsthat each measured eleven inches long and seven inches wide. Tr. I at 363–64.

 

[5] Danny Williamshas been an MSHA inspector since July 15, 2012, and was trained at the MineSafety and Health Academy in Beckley, West Virginia. Tr. I at 71, 78. Williams previouslyworked as a safety specialist at an underground zinc mine in Gordonsville,Tennessee, where he trained miners, responded to accidents, performed safetyaudits, served as a liaison with local first responders, and handled explosives.Tr. I at 72–73. Williams was also previously employed as a law enforcement officer.Tr. I at 76–77. 

[6] Although I findInspector Williams’ testimony to be credible, I discount the miner’s allegedstatement during the inspection. The statement by the employee was made inpassing and without sufficient time for Inspector Williams to corroborate thestatement or test the reliability of the employee who made the statement. Therefore,although the Commission’s procedural rules permit hearsay evidence, the allegedstatement to Inspector Williams does not have the necessary indicia of reliability,and I do not consider it when determining Respondent’s level of negligence. 29C.F.R. § 2700.63. 

 

[7] Hinson has beenemployed by Respondent since 1990 and served as a project manager at the excavationsite. Tr. I at 212, 213. Hinson was only at the job site “randomly,” and wasresponsible for procuring materials and subcontractors. Tr. I at 213.

 

[8] Anthony Williamsis employed as a superintendent for Respondent, and has been employed byRespondent for approximately 27 years. Tr. I at 246. Anthony Williams served asRespondent’s foreman at the excavation site and was Respondent’s highestranking employee assigned to the road repair project. Tr. I at 247. 

 

[9] Kevin Williams hasbeen employed by Respondent for approximately 16 years, including at Respondent’sroad repair project. Tr. I at 301. 

 

[10] Givens was abulldozer operator for Respondent on the State Route 141 repair project and hasbeen involved with the road building business since 1996. Tr. I at 314–16. 

[11] Wright is the president andCEO of Wright Brothers Construction Company (“Wright Brothers”), a company thatis considered a competitor to Respondent and headquartered in Charleston,Tennessee. Tr. II at 5, 7. Wright has been working for Wright Brothers since1978, and Wright Brothers engages in highway heavy civil contracting, earthwork, bridge and road construction, paving, concrete, and other similaractivities. Tr. II at 6–7. 

 

[12] Anthony Williamsand Jimmy Givens are either wrong in their characterization of the materialRespondent used as graded solid rock on the State Route 141 project, orRespondent knowingly failed to meet the requirements for graded solid rock. 

[13] Respondent failedto properly cite or refer to these cases as non-precedential ALJ decisions, andnot Commission precedent. 

[14] Payment should besent to: Mine Safety and Health Administration, U.S. Department of Labor,Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.