**FEDERAL MINESAFETY AND HEALTH REVIEW COMMISSION**

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933 / Fax 202-434-9949

** **

|  

SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR,  MINE SAFETY AND HEALTH ADMINISTRATION,

   Petitioner

 

v. 

 

APPALACHIAN RESOURCE WEST VIRGINIA, LLC,

   Respondent     |  

 

 

  |  

  |  

CIVIL PENALTY PROCEEDING

 

Docket No. WEVA 2022-0301

A.C. No. 46-08930-551112

 

 

 

 

Mine: Grapevine South Surface Mine

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

 

**ORDER CERTIFYING CASE FOR INTERLOCUTORY REVIEW**

 

            This case is beforethe Court on a Petition for the Assessment of a Civil Penalty under Section105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30U.S.C. § 815(d), filed May 31, 2022, and the Secretary of Labor’s Motionto Approve Settlement, filed October 14, 2022. The Secretary has refused toprovide the 104(b) orders associated with seven 104(a) citations in this docket.[1]The absence of the associated 104(b) orders frustrates the Court’s ability to faithfullyreview the record and properly evaluate the proposed settlement. Further, the idea that the Secretary may unilaterallydecide to secrete public records from the official file for a Petition for theAssessment of Civil Penalty he filed, is inimical to the Congressionalstructure and purpose of the Mine Act. 

 

Accordingly, forthe reasons which follow, the Court **CERTIFIES**, under CommissionProcedural Rule 76, 29 C.F.R. § 2700.76, that this interlocutory ruling involvesa controlling question of law – whether the Secretary is obligated, upon ajudge’s request, to supply the 104(b) orders associated with 104(a) citationsin a docket before the judge on a Motion to Approve Settlement – for which, inthe Court’s opinion, immediate review will materially advance the finaldisposition of the proceeding. 

 

 

 

**Background**

** **

Docket WEVA 2022-0301 originallyincluded 33 citations issued under Section 104(a) of the Mine Act, of which eightcitations are listed in Exhibit A as having associated 104(b) Orders. Pet. fora Civil Penalty at 12-13. The docket was subsequently reallocated and thereby splitinto two dockets. That reallocation created a new docket WEVA 2022-0428.[2] Seventeen (17) citations remained with WEVA 2022-0301, of which *seven*of those citations had associated 104(b) Orders issued for those now-admitted violations.However, the Petition does not include the seven 104(b) Orders associated withthose 104(a) citations.[3] Thosecitations are: Citation Nos. 9563136, 9563137, 9563138,9563141, 9563142, 9563143, and 9563146.[4]

 

The conditions found by the issuinginspector are briefly summarized here: 

 

Citation No. 9563136: Haulage truckwith defective rear tire and oil leak from a rear inside tire; Citation No.9563137, another haulage truck with various signal and brake light issues andaudible alarm, all not functioning; Citation No. 9563138, five separate defectsaffecting safety on dozer; Citation No. 9563141, five separate defective lightsand non-functioning horn on haulage truck; Citation No. 9563142, 13 thirteen(13) defects affecting safety on haulage truck; Citation No. 9563143, fourteen(14) defects affecting safety on haulage truck; Citation No. 9563146, ten (10)defects affecting safety on haulage truck. Accordingly, it is inarguable thatthese now-admitted violations reflect that the mine had numerous problems withits mobile equipment.

 

In light of the missingdocument(s), on November 9, 2022, the Court e-mailed the parties, requestingthe missing information for this docket, as well as the missing information forthe reallocated docket, WEVA 2022-0428.  

 

On Tuesday, November 15th,the Secretary’s non-attorney representative, conference and litigationrepresentative David Trent, responded, speaking to the missing documents fromboth dockets:

 

For the violationslisted [by] Judge Moran request[ing] the terminations, no penalty is beingcompromised except for Citation No. 9563141. Therefore, the Secretary will notprovide the terminations for these violations. For Citation No. 9563141 thereis no termination to provide for this violation.[5]

 

E-mail from CLR Trent to the Court,November 15, 2022.

 

On the same day as Mr. Trent’s response, Counsel forthe Respondent, Attorney K. Brad Oakley, taking a cooperative approach, emailedthe Court, responding that he could only locate a termination sheet for CitationNo. 9563139, which termination sheet he attached to his email. He added thatthe violation was terminated upon repairs being made to lights on a dozer andthat there was no (b) order associated with it. 

 

E-mailfrom Attorney Oakley to the Court, November 15, 2022.

 

 

Attorney Oakleyalso informed in the same email that he had not been able to locate thetermination sheets in the package of citations that his client provided to him,nor in the petition filed by Mr. Trent and that he believed that all of theremaining citations have 104(b) orders associated with them. For that reason,he opined that it was possible that MSHA did not issue terminations for theunderlying citations. *Id.*  Attorney Oakley confirmed, and it is not indispute, that (b) orders were issued for the following citations in WEVA2022-0301:

 

9563136 – B order9563148 issued on 1/13/22 and terminated on 1/19/22

9563137 – B order9563147 issued on 1/13/22 and terminated on 1/19/22

9563138 – B order9563177 issued on 2/1/22 and terminated on 2/3/22 

9563141 – B order9563182 issued on 2/1/22 and terminated on 2/8/22

9563142 – B order9563181 issued on 2/1/22 and terminated on 2/8/22

9563143 – B order9563178 issued on 2/1/22 and terminated on 2/10/22

9563146 – B order9563180 issued on 2/1/22 and terminated on 2/2/22

9563157[6]–B order 9563179 issued on 2/1/22 and terminated on 2/10/22

 

On November 28,2022, the Court, via email, repeated its request for the Secretary to providethe missing (b) orders for both dockets. E-mail by the Court to the Parties(November 28, 2022). Thereafter, also on November 28, 2022, the CLR respondedvia e-mail, reiterating that the Secretary would not provide the missingtermination sheets. 

 

 

**Analysis**

 

The foregoing problem with theincomplete record in this case may be succinctly summarized. For this docket,Docket No. WEVA 2022-0301, the Secretary refuses to provide the 104(b) ordersissued for seven citations. The Court believes that once a matter is before theCommission, per section 110(k), the entire matter is within its domain underthe Mine Act.  That means that the Secretary may not secrete section 104(b)orders from the view of the Commission, miners or the public. That thecitations have been settled, as assessed, without modifications to them, isirrelevant to the Secretary’s obligation not to hide orders issued inconnection with the admitted violations.  This is especially true because, asexplained below, 104(b) orders create certain obligations upon the Secretarywhich he is not free to ignore. 

 

 

 

The structure of the Mine Actunderscores the importance of 104(b) orders. As the Court noted in its June 22,2022 Order in *Perry County Resources*, 44 FMSHRC 501 (June 2022), 

 

The Court does not believe that the fact a violation ispaid in full, with no modifications made to the issuing inspector’s evaluation,is the end of the matter. The principle behind this view is very basic, incarrying out its review responsibilities under 30 U.S.C. §820(k), the Court is obligated to be fully informed about thecircumstances surrounding the issuance of a citation or an order. [The Citationin issue] is part of this docket, but the documentary record concerning thisadmitted violation is incomplete. This is because a section 104(b) order wasissued by the inspector in connection with that Citation . . . The Secretarymay not decide to selectively secrete such information from the Court, thepublic and especially from the miners it is charged to protect. From thisCourt’s perspective, such a stance is inimical to the spirit of the Mine Act.

 

A Section 104(b) order is an important feature of the MineAct. Section 104(b) of the Mine Act states:

 

If, upon any follow-up inspection of a coal or other mine,an authorized representative of the Secretary finds (1) that a violationdescribed in a citation issued pursuant to subsection (a) has not been totallyabated within the period of time as originally fixed therein ... and (2) that theperiod of time for abatement should not be further extended, he shall determinethe extent of the area affected by the violation and shall promptly issue anorder requiring the operator of such mine or his agent to immediately cause allpersons, except those persons referred to in subsection (c), to be withdrawnfrom, and to be prohibited from entering, such area until an authorized representative of theSecretary determines that such violation has been abated.

 

30 U.S.C. § 814(b).

 

As the Commission has noted, such orders have significancein their own right. It has observed that:

 

First of all, section 105(a), by its terms, does notdistinguish between the different types of orders that can be issued undersection 104. Absent any language in the statute suggesting that the Secretarycannot propose a penalty in connection with a section 104(b) order, we will notinterpret the phrase “order under section 104” in section 105(a) to excludesection 104(b) orders.

 

Secondly, contrary to her claim, the Secretary may indeedassess a separate penalty for the failure to abate a violation. Section105(b)(1)(A) of the Mine Act provides in pertinent part:

 

If the Secretary has reason to believe that an operator hasfailed to correct a violation for which a citation has been issued within theperiod permitted for its correction, the Secretary shall notify the operator bycertified mail of such failure and of the penalty proposed to be assessed undersection 110(b) by reason of such failure and that the operator has 30 dayswithin which to notify the Secretary that he wishes to contest the Secretary’snotification of the proposed assessment of penalty.... 30 U.S.C. § 815(b)(1)(A). Consequently, section 110(b) of the Act and MSHA’sregulations authorize the Secretary to assess steep daily penalties. *See*30 U.S.C. § 820(b); 30 C.F.R. § 100.5(c) (“Any operator who fails to correct a violation for whicha citation has been issued under section 104(a) of the Mine Act within theperiod permitted for its correction may be assessed a civil penalty of not morethan $6,500 for each day during which such failure or violation continues.”).

 

Moreover, the fact that a withdrawal order has been issuedincreases the likelihood that such a penalty will be assessed. The legislativehistory of the Mine Act states that under section 105(b)(1)(A), like undersection 105(a):

 

**[T]he Secretary is to similarly notify** operators and **miners’ representatives** when hebelieves that an operator has failed to abate a violation within the specifiedabatement period. *In most cases, a failure to abate closure order will havebeen issued pursuant to Section [104(b)]*. The notice of proposed **penalty**to operators in such cases shall state that a [**104**(**b**)] **order**has been issued and the **penalty** provided by Section [110(b)] of the Actshall also be proposed. *This **penalty** shall be proposed in addition tothe **penalty** for the underlying violation required by Section [110(a)] ofthe Act.*S. Rep. No. 95-181, at 34-35 (1977), *reprinted in* Senate Subcomm. on Labor,Comm. on Human Res., *Legislative History of the Federal Mine Safety andHealth Act of 1977*, at 622-23 (1978).

 

In addition, even if no separate penalty for failure toabate a violation is assessed, the failure to abate allegation upon which asection 104(b) withdrawal order rests, ifestablished, increases the amount of the penalty that is ultimately assessedfor the underlying violation. As Judge Zielinski recognized in his firstdecision, ‘the demonstrated good faith of the person charged in attempting toachieve rapid compliance after notification of a violation is one of thefactors that the Commission must consider in fixing the amount of a civilpenalty.’ 28 FMSHRC at 413 (quoting section 110(i) of the Mine Act, 30 U.S.C. § 820(i)). Thus, the sanction for a failure to abate is not only awithdrawal order, but, likely, a higher penalty when the Secretary eventuallyassesses a penalty for the original violative condition that allegedly was notabated in a timely fashion. *See NAACO Mining Co.*, 9 FMSHRC 1541, 1545(Sept. 1987) (‘Under sections 104(b) and 110(b), if the operator does notcorrect the violation within the prescribed period, the more severe sanction ofa withdrawal order is required, and a greater civil penalty is assessed.’).

 

*UMWA v. Maple CreekMining*, 29 FMSHRC 583, 592-594 (July 2007)(emphases added).

 

Per the above decision, the Commission recognized theindependent importance of 104(b) orders may be the subject of a penalty intheir own right, citing section 104(b)(1)(A).The legislative history, as also cited by the Commission, makes this plain:“[t]he notice of proposed **penalty** to operators in such cases shall statethat a **[104(b)] order** has been issued and the **penalty** provided bySection [110(b)] of the Act shall also be proposed. *This****penalty****shall be proposed in addition to the****penalty****for theunderlying violation required by Section [110(a)] of the Act.*” *Id.*at 593. (emphases in original Order)*.*

 

Though no additional reasons are needed to requiredisclosure of the (b) order in this matter, the record does not reveal if theSecretary met his obligation to notify the miners’ representatives when, ashere, he believed that an operator has failed to abate a violation within thespecified abatement period.

 

This Court is well-aware thatits review of settlements is presently cabined within the terms of theCommission’s decisions in *The American Coal Co.*, 40 FMSHRC 983 (Aug.2018) (“*AmCoal*”) and *Rockwell Mining, LLC*, 40 FMSHRC 994 (Aug.2018) and that under those decisions the Court’s review role has becomestatistically perfunctory. However, there is still an obligation and duty to examine *each*citation *and order* within a submitted docket, even if the citation isnot contested and paid as originally assessed. The responsibility to ensurethat there is*a complete record* isseparate and apart from, and not mutually exclusive to, the review ofviolations that have settled, whether such settlements are for the full amountproposed or some lesser amount.

 

Frankly, the Court is at a loss to understand why theSecretary of Labor is not in full support of providing the *full record*of the enforcement actions taken in connection with an admitted 104(a)citation. In this matter that involves hiding the inspector’s issuance of a104(b) order in connection with that citation. The apparent decision to secretesuch information from the Court, the public and especially from the miners itis charged to protect is perplexing and at odds with the admonition fromseveral federal courts invoking Justice Louis D. Brandeis’ remark that“Sunlight is said to be the best of disinfectants.” *See, for example*, *Argus v. U.S. Dept Agriculture,* 740 F.3d 1172 (8th Cir. 2014), wherein Argus invoked the federal law meant to bringdisclosure sunlight to the government bureaucracy, in its request to seespending information from the U.S. Department of Agriculture under the Freedomof Information Act, *5 U.S.C. § 552**.* To the same effectas the Secretary has done here, the Department of Agriculture, with littleexplanation, refused disclosure. Reversing the lower court’s determination thatthe information sought was exempt from disclosure, the Eighth Circuit took noteof Justice Louis D. Brandeis’ remark about the disinfecting benefit of sunlight.*Id.* at 1173, citing *OtherPeople’s Money* 92 (1914).

 

*Id.* at 503-506(footnotes omitted).

 

 

**Conclusion**

 

For all of theabove stated reasons, the Court certifies upon its ownmotion that this interlocutory ruling involves a controlling question of lawfor which, in the Court’s opinion, immediate review will materially advance thefinal disposition of the proceeding, 

 

 

 

 

 

/s/William B. Moran

William B. Moran

Administrative Law Judge

 

 

 

 

 

**APPENDIX**

** **

The text of the citations for thenow-admitted violations concerning which the Secretary has refused to supplythe associated 104(b) orders are presented here.

** **

**Citation No. 9563136**

 

Citation No. 9563136 was issuedon January 10, 2022, for a violation of 30 C.F.R. § 77.1606(c). Titled“Loading and haulage equipment; inspection and maintenance,” this standardspecifies that “[e]quipment defects affecting safety shall be corrected beforethe equipment is used.” 30 C.F.R. § 77.1606(c). 

 

The citation stated:

 

The followingdefects affecting safety existed on the 777D Caterpillar Haulage Truck Co. No. M03-546:

1. A large knotexisted on the side wall area of the left rear outside tire.

2. Oil was leakingfrom the right rear inside wheel area.

This truck was beingoperated in the Grapevine North Pit Area. Defects affecting safety shall becorrected before the equipment is used.

Standard 77.1606(c)was cited 44 times in two years at mine 4608930 (44 to the operator, 0 to acontractor).

 

Pet. for a Civil Penalty at 19.

 

            For gravity,likelihood of injury was found to be “unlikely,” and injury could reasonably beexpected to result in “lost workdays or restricted duty,” affecting one person.*Id*. The violation was not found to be significant and substantial. *Id*.Negligence was found to be “low.”

 

**Citation No. 9563137**

 

CitationNo. 9563137 was issued on January 10, 2022, for a violation of 30 C.F.R.§ 77.1605(d). Titled “Loading and haulage equipment,” the standardspecifies that “[m]obile equipment shall be provided with audible warningdevices. Lights shall be provided on both ends when required.” 30 C.F.R.§ 77.1605(d).

 

The citation stated:

 

The followingconditions existed on the 777D Caterpillar HaulageTruck Co. No. M03-546:

1. Both frontmarker/signal lights were not functioning when tested.

2. Both rear brakelights were not functioning when tested.

3. The left rearsignal light was not functioning when tested.

4. The Level 3audile warning alarm which is located inside the operators cab was notfunctioning when tested.

This truck was beingoperated in the Grapevine North Pit Area. This truck is operated before andafter daylight hours. Mobile equipment shall be provided with audible warningdevices.

Lights shall beprovided on both ends when required

 

Standard 77.1605(d)was cited 16 times in two years at mine 4608930 (16 to the operator, 0 to acontractor).

 

Petition at 20.

 

            For gravity,likelihood of injury was found to be “unlikely,” and injury could reasonably beexpected to result in “lost workdays or restricted duty,” affecting one person.*Id*. The violation was not found to be significant and substantial. *Id*.Negligence was found to be “low.” *Id*. 

 

**Citation No. 9563138**

 

CitationNo. 9563138 was issued on January 10, 2022, for a violation of 30 C.F.R.§ 77.1606(c), *supra*.

 

The citation stated:

 

The followingdefects affecting safety existed on the D10RCaterpillar Dozer Co. No. D007:

1. A gap existed inthe top corner of the right hand door to the operators cab. With the doorclosed completely the outside of the cab was still visible.

2. Bolts weremissing in the floor board allowing the floor board to be loose and not properlysealed.

3. Oil was leakingout the right side final drive.

4. Oil could be seenleaking on the right side out of the frame of the dozer.

5. The seat in theoperators cab is bottomed out.

This dozer was beingoperated in the Grapevine North Pit Area. Defects affecting safety shall becorrected before the equipment is used.

Standard 77.1606(c)was cited 44 times in two years at mine 4608930 (44 to the operator, 0 to acontractor).

 

Petition at 21.

 

For gravity, likelihood of injurywas found to be “unlikely,” and injury could reasonably be expected to be“permanently disabling,” affecting one person. *Id*. The violation was notfound to be significant and substantial. *Id*. Negligence was found to be“low.” *Id*. The citation was continued on January 13, 2022, with thejustification that: 

 

Repairs are stillbeing conducted at this time. Most of the repairs have been completed. The mineoperator removed the dozer from service until the repairs could be completed,so more time has been granted.

 

*Id*. at 22. The citationwas continued again on January 18, 2022, with the justification that: 

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed.

 

*Id*. at 23. The citationwas continued again on January 24, 2022, with the justification that: 

 

Repairs are still being conduct at thistime. The following repairs have been completed 1, 2, 4, and 5. Repair work hasbeen hampered by parts availability and limited personnel to complete therepairs. The mine operator has removed the equipment from service until theserepairs can be completed.

 

*Id*. at 24.

 

**Citation No. 9563141**

Citation No. 9563141 was issued on January 11, 2022,for a violation of 30 C.F.R. § 77.1605(d), *supra*. The citation stated:

 

The followingconditions existed on the 785D Caterpillar HaulageTruck Co. No. RT111:

1. The left andright side front signal/marker lights are not functioning when tested.

2. The left sidehigh beam light is not functioning when tested.

3. The left andright side rear signal lights are not functioning when tested.

4. The left andright side brake lights are not functioning when tested.

5. The horn was notfunctioning when tested.

This truck was beingoperated in the Mill Seat Pit Area (Alma). This truck operates before and afterdaylight hours. Mobile equipment shall be provided with audible warningdevices,

Lights shall beprovided on both ends when required. These conditions have been recorded on thePre-Operational Examinations and reported to the mine operator.

Standard 77.1605(d)was cited 18 times in two years at mine 4608930 (18 to the operator, 0 to acontractor).

 

Petition at 29.

 

For gravity, likelihood of injurywas found to be “unlikely,” and injury could reasonably be expected to be“fatal,” affecting one person. *Id*. The violation was not found to besignificant and substantial. *Id*. Negligence was found to be “high.” *Id*.The citation was continued on January 18, 2022, with the justification that:

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed.

 

*Id*. at 30. The citationwas continued again on January 24, 2022, with the justification that:

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed. 

 

*Id*. at 31.

** **

**Citation No. 9563142**

 

Citation No. 9563142 was issued on January 11, 2022,for a violation of 30 C.F.R. §77.1606(c), *supra*.

 

            The citation stated:

 

The followingdefects affecting safety existed on the 785D Caterpillar Haulage Truck Co. No.RT111:

1. Right front strutis leaking oil.

2. Right rear strutis leaking oil.

3. Oil is leakingfrom the right rear inside wheel area.

4. Oil is leakingfrom the right rear outside wheel area.

5. Oil is leakingfrom the left rear inside wheel area.

6. Excessive slackexisted in the rear stabilizer bar (dogbone).

7. Excessive slackexisted in the center arm pin.

8. The left frontstrut is leaking oil.

9. Oil is leakingfrom the right front brake caliber area.

10. Oil is leakingexcessively from the steering oil tank onto the deck and down onto the rightside of the engine compartment area.

11. Oil is leakingexcessively from the area located behind the hydraulic tank.

12. Three gussetslocated on the right side of the truck was cracked and separated.

13. The right rearinside tire has excessive damage to the tire.

This truck was beingoperated in the Mill Seat Pit Area (Alma). Defects affecting safety shall becorrected before the equipment is used.

 

Standard 77.1606(c)was cited 46 times in two years at mine 4608930 (46 to the operator, 0 to acontractor).

 

            Petition at 32-33.

 

For gravity, likelihood of injurywas found to be “unlikely,” and injury could reasonably be expected to resultin “lost workdays or restricted duty,” affecting one person. *Id*. at 32.The violation was not found to be significant and substantial. *Id*. Negligencewas found to be “moderate.” *Id*. The citation was continued on January18, 2022, with the justification that:

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed. 

 

*Id*. at 34. The citation wascontinued again on January 24, 2022, with the justification that:

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed.

 

*Id*. at 35.

 

**Citation No. 9563143**

 

CitationNo. 9563143 was issued on January 11, 2022, for a violation of 30 C.F.R.§ 77.1606(c), *supra*.

 

            The citation stated:

 

The followingdefects affecting safety existed on the 785CCaterpillar Haulage Truck Co. No. RT269:

1. The mud flaplocated underneath the operators cab is bent down, allowing mud to get on the

drivers side rearview mirror and onto the window glass of the drivers side door.

2. The truck frameis cracked across the bottom and back side of the frame. The crack is locatedon the rear of the truck above where the stabilizer bar (dogbane) is located.

3. The right rearstrut is leaking oil.

4. The right siderear wheel is leaking oil on the inside area of the wheel.

5. The left siderear wheel is leaking oil on the inside area of the wheel.

6. Oil is leaking fromthe steering oil tank area which is located on the top deck above the enginecompartment. The oil is leaking down onto the right side of the enginecompartment area.

7. Excessive slackexisted in the right side steering jack inside ball stud. The slack is visiblewhen the truck is steered in either direction.

8. Excessive slackexisted in the left side steering jack inside ball stud. The slack is

visible when thetruck is steered in either direction.

9. The front brakecanister is over stroked. There is no warning alarm or warning light on insidethe operators cab.

10. The handraillocated on the front bumper to the right side step is bent and missing a bolt.

11. The hood isbroke near the offside door to the operators cab. This hood is also used as a walkway(deck) to access the offside door to the operators cab.

12. The fuel gaugelocated inside the operators cab was not functioning when tested.

13. Paper towels arewrapped around the door striker to the drivers side door to the

operators cab.

14. Paper towels areinstalled around the top corner to the drivers side door to the

operators cab.

This truck was beingoperated in the Mill Seat Pit Area (Alma). Defects affecting safety shall becorrected before the equipment tis used.

 

Standard 77.1606(c)was cited 46 times in two years at mine 4608930 (46 to the operator, 0 to acontractor).

 

Petition at 36-37.

 

For gravity, likelihood of injurywas found to be “unlikely,” and injury could reasonably result in “lostworkdays or restricted duty,” affecting one person. *Id*. at 36. Theviolation was found not to be significant and substantial. *Id*. Negligencewas found to be “moderate.” *Id*. 

 

The citation was continued onJanuary 18, 2022, with the justification that:

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampere3d by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed.

 

*Id*. at 38. Thecitation was continued again on January 24, 2022, with the same justification. *Id*.at 39.

 

 

**Citation No. 9563146**

 

Citation No. 9563146 was issued on January 12, 2022,for a violation of 30 C.F.R. § 77.1606(c), *supra*. 

 

            The citation stated:

 

The followingdefects affecting safety existed on the 785DCaterpillar Haulage Truck Co. No. RT112:

1. An excessive oilleak existed on a hose located on the right front area of the truck. Oil wasspraying out the hose.

2. An excessive oilleak existed in the area behind the hydraulic tank area. A steady streams ofoil was coming from this area.

3. Oil was leakingfrom the right rear wheel. The inside area of the wheel was covered in oil andrunning down the sidewall of the tire.

4. The mud flap ismissing from underneath the drivers side of the operators cab. The mirror andwindow glass of the drivers side door was covered in mud.

5. Oil was leakingfrom the filter area of the steering oil tank and running down onto the rightside of the engine compartment.

6. Left rear braketemperature error indicator is coming on inside the operator's cab.

7. The warning lightlocated next to the digital display is taped over.

8. The actionwarning light located on the dash board is staying on at all times.

9. Excessive slackexisted on the right side steering jack inside ball stud. This slack wasvisible when the truck was steered in either direction.

10. The right sidefender is damaged where the front head lights are located causing the lights tonot face forwards completely.

This truck was beingoperated in the Mill Seat Pit Area (Alma). Defects affecting safety shall becorrected before the equipment is used.

 

Standard 77.1606(c)was cited 48 times in two years at mine 4608930 (48 to the operator, 0 to acontractor).

 

Petition at 44-45.

 

For gravity, likelihood of injurywas found to be “unlikely,” and injury could reasonably be expected to resultin “lost workdays or restricted duty,” affecting one person. *Id*. at 44. Theviolation was not found to be significant and substantial. *Id*. Negligencewas found to be “moderate.” *Id*. The citation was continued on January18, 2022, with the justification that:

 

Repairs are stillbeing conduct at this time. Some of the repairs have been completed. Repairwork has been hampered by parts availability and limited personnel to completethe repairs. The mine operator has removed the equipment from service untilthese repairs can be completed.

 

*Id*. at 46. The citationwas continued again on January 24, 2022, with the justification that: 

 

Repairs are stillbeing conduct at this time. Repairs to items 1, 2, 4, 6, 7, 9 and 10 have beencompleted. Repair work has been hampered by parts availability and limitedpersonnel to complete the repairs. The mine operator has removed the equipmentfrom service until these repairs can be completed.

 

*Id*. at 47.

 

 

 

 

 

 

 

 

Distribution:

 

David C.Trent, Conference & Litigation Representative, U.S. Department of Labor,MSHA 

4499Appalachian Highway, Pineville, WV 24874  Trent.david@dol.gov

 

K. Brad Oakley, Esq., Jackson Kelly PLLC, 100 W. Main Street,Suite 700

Lexington, KY 40507  kboakley@jacksonkelly.com 

** **

----

[1]Aseparate deficiency, the Court noted that a citation’s termination sheet wasalso missing from the file. The Secretary did not provide the termination sheetfor another citation that did not have an associated 104(b) order. However, Counselfor the Respondent provided the document.

[2]Order for Docket Reallocation, June 29, 2022. For the 16 citations exportedto the new docket, one of original eight citations which had an associated104(b) Order was moved to the new docket, WEVA 2022-0428. As that new docketalso had the deficiency of a missing section 104(b) order, Citation No. 9563157,which Order the Secretary also refused to provide to the Court, and as that missingOrder is within the separate, newly created docket, the Court has today issueda separate Certification for Interlocutory Review for Docket No. WEVA 2022-0428.It is also noteworthy that for the reallocated citations making up the newlycreated Docket WEVA 2022-0428, eight of the sixteen citations in that docketinvolved mobile equipment related violations: Citation No. 9563189, pertainedto multiple defects on the Volvo fuel and oil service truck, No. 900; CitationNo. 9563183 involved a damaged seat belt on the Freightliner Truck No. MT 664;Citation No. 9563174 identified 8 separate defects on 785C Caterpillar haulagetruck; Citation No. 9563173 addressed platform steps to access 785D Caterpillarhaulage track which were cracked on both sides and had a broken toe board andhand rail to driver’s side door; Citation No. 9563172 found multiple defects onD11R Caterpillar Dozer; Citation No. 9563159, involved a defective parkingbrake on a blasting truck; Citation No. 956156 found the Caterpillar 993 KFront end loader not operating in safe condition with five separate defectsidentified; and Citation No. 9563155 also identified five separate defectsregarding safe means of access to 993K Caterpillar front end loader. 

 

[3]That itis undeniable that this mine had a lot of vehicle-related violations is furtherdemonstrated by the fact that among the other nine violations remaining withinWEVA 2022-0301 for which no (b) orders were issued, six of them involved anassortment of vehicle defects: Citation No. 9563139 involved othernon-functioning lights on the D10R Caterpillar Dozer Co. No. D007; Citation No.9563145 spoke to the 980 G Caterpillar front-end loader, No. 1893, withmultiple defects; Citation No. 9563149 similarly found multiple defects on 992GCaterpillar front-end loader; Citation No. 9563151, identified five separatedefects on a fuel and oil truck, No. GT 400; Citation No. 9563153, found hornand reverse lights not functioning; and Citation No. 9563154 discovered an inoperativereverse alarm on 993K Caterpillar front-end loader, No. L465.

 

[4]The full textsof the citations for the now-admitted violations missing the associated (b)orders are included in the Appendix to this order. 

[5]Mr. Trentwas referring to a citation found in the original docket. Thus, it remainedwith Docket No. WEVA 2022-0301 and therefore was*not* reallocated to WEVA2022-0428. 

[6]CitationNo. 9563157 represents the lone citation in reallocated Docket No. WEVA2022-0428 for which a (b) order was issued and for which the Secretary refusesto supply the (b) order paper.