**FEDERAL MINE SAFETY ANDHEALTH REVIEW COMMISSION**

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC 20004-1710

TELEPHONE: 202-434-9933

FAX: 202-434-9949

 
| SECRETARY  OF LABOR

MINE  SAFETY AND HEALTH

ADMINISTRATION  (MSHA),

                        Petitioner

 

                        v.

 

 

 

 

CARMEUSE  LIME,

                        Respondent                                                                      |   |   | CIVIL  PENALTY PROCEEDING

 

Docket  No. SE 2022-0196

A.C.  No. 09-01228-559871

 

 

 

 

 

 

Mine:  Talona Mountain Mine  

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

** **

**DECISION**

Appearances:              C. Renita Hollins,Esq., Office of Solicitor, U.S. Department of Labor, 

                                    Atlanta,GA for the Petitioner

 

                                    ArthurWolfson, Esq., Partner, Fisher & Phillips LLP, Pittsburgh, PA

for the Respondent

 

Before:                        Judge William B. Moran

**Introduction:**

****Thismatter involves two alleged violations of the Mine Act. The events in thislitigation were triggered by an E04 hazard complaint, alleging a hazardouscondition at the mine. Tr. 86. One, Citation No. 9701256, issued on June 21,2022, alleged a violation of 30 C.F.R.§ 57.18009. Titled“Designation of person in charge,” it provides“When persons are working at the mine, a competent person designated by themine operator *shall be in attendance* to take charge in case of anemergency.” Emphasis added. 

            The citation alleged: 

A competent person designated by themine operator was not in attendance on mine property when MSHA arrived toconduct inspection activity. Three workers were working in the underground areaof the mine and were exposed to all mine hazards. The workers were workingunderground, loading and hauling material for a period of 1 hour with nobody totake charge in the event of an emergency. This condition exposes the workers toserious injuries.

Petition for civil penalty at 14.

            The other citation, No. 9701258, issuedthe next day, June 22, 2022, alleged a violation of 30 C.F.R.§ 57.11051(a).Titled “Escape routes,” that standard provides: “Escape routes shall be (a)Inspected at regular intervals and maintained in safe, travelable condition.” 

            The section 104(a) citation alleged: 

Escaperoutes shall be maintained in safe, travelable condition.Upon inspection, due to an inundation of water from the mine roof, theunderground primary escape route on the level 2 portion of the mine could notbe traveled safely. The water had accumulated greater than 30 inches in depthin areas along the escape route. This condition exposes miners to potentiallyfatal injuries from not being able to safely escape the mine in the event of amine emergency. The termination due date is extended due to the mine cannot beaccessed due to being under a 103(k) order. Standard 57.1105l(a) was cited 1time in two years at mine 0901228 (1 to the operator, 0 to a contractor).

Citation No. 9701258 

            For the reasons which follow, the Courtfinds that the operator failed to have a designated person in charge, inviolation of 30 C.F.R.§ 57.18009. The Court also finds that, while the operatorfailed to maintain the escape route in safe, travelable condition, thecondition came about as a result of a mutual misunderstanding, for which itwould be improper to hold the operator accountable.  

**FINDINGS OF FACT**

            A hearing was held on March 22, 2023, atthe Gilmer County Superior Court in Ellijay, Georgia. Joint Stipulations wereadmitted at the outset of the hearing.[1]****TheSecretary called MSHA Inspector Christopher Codie McDowell. Tr. 22. McDowellwas at the mine on June 5, 2022, because MSHA had received a hazardousconditioncomplaint regarding two allegations: large rocks falling underground and a lotof dust and toxins in the mine atmosphere. Tr. 27. Assigned by his supervisorto investigate the complaint, McDowell and another MSHA inspector, Kevin Dycusarrived at the mine along with two MSHA trainees.[2]

            The Talona Mountain Mine produces marble.Tr. 90. The MSHA team arrived at the mine around 3 p.m. Tr. 92. 

            McDowellinformed that upon his arrival along with the other MSHA personnel, 

there were several cars in theparking lot. We went into the mine office. There was nobody in there. Checkedthe other buildings, we couldn't find anybody, and it was approximately 5 to 10minutes and a haul truck came out from underground. Because the offices aredirectly across kind of from where the mine portals are at. So a haul truckcome out from the mine portal from underground. And me and Mr. Dycus walked overto him and flagged him down. [The driver] was in a large swivel tail truck[and] he was stopping to fuel up. 

Tr. 29

 

            Thedriver informed McDowell that Nathan Hyatt was in charge. When asked by MSHAwhere Mr. Hyatt was, the driver informed “he was up the road at the other mine.Tr. 30.  McDowell then asked the driver if he could contact Hyatt, advisingthat MSHA was there to investigate a hazard complaint. The driver made severalattempts to contact Hyatt using a handheld radio which they use the radiosunderground to communicate with each other and to communicate with the surface. McDowell was present and observed the driver make a few attempts to contactHyatt but with no success. *Id.*

 

            At thetime of the driver’s attempt to call Hyatt, they were located about 80 feet fromthe mine portals and about 100 feet from the mine offices. Tr. 31. The driver,after being unable to reach Hyatt via radio, did then reach him using a cellphone. *Id.*The driver then told Hyatt that MSHA was at the site and thathe needed to come back to the Talona Mountain Mine. *Id.* Thisconversation was made in the presence of McDowell. *Id.* Hyatt then didarrive at the mine some five to ten minutes later. Tr. 32. Hyatt arrived via apickup truck, which, according to McDowell, Hyatt informed he was at the othermine site, which was a “couple of miles” from the Talona mine. Tr. 93. Thatother mine, McDowell stated, has a separate MSHA Id number. Tr. 94.

 

            WhenHyatt did arrive at the mine site, McDowell advised him that they were there ona hazard complaint, and he presented him with a printout which described theallegations in the complaint. According to McDowell,Hyatt then advised that when they (i.e., MSHA) arrived that it was theirquitting time and that the other two miners were on their way out fromunderground. By ‘quitting time,’ McDowell stated that meant it was the end ofthe shift for those miners. *Id.*

 

            McDowellinformed that on that day, no MSHA inspector went underground. Tr. 33. MSHA didrelate to Hyatt during the visit on that first day, about the allegations of rockfallsand the loud booms that miners were hearing underground, and he asked Hyatt ifhe was familiar with any of that. Hyatt affirmed that the mine had beenexperiencing some loud booms “from the ten west heading is where they [the minepersonnel] thought it was coming from. Tr. 33.  McDowell further informed thatthe mine had some large rock falls underground. Tr. 34. McDowell couldn’tremember exactly, but as best as he could recall it was the 1 South or 2 SouthMains where the rockfalls had occurred. *Id.* Thus, according toMcDowell’s testimony, Hyatt admitted being aware of the rockfalls and he wasthe person who provided their locations. *Id.*

            On theissue of Hyatt’s presence at the mine, McDowell stated that Hyatt informed that“several times a day that he would be back and forth between both places.” *Id.*This is an appropriate point for the Court to take note that it found InspectorMcDowell to be a credible witness throughout his testimony, including on thisuncontradicted statement about Hyatt’s practice of traveling away from theTalona Mountain Mine’s underground site during the day. This finding is apartfrom the fact that former mine foreman Nathan Hyatt did not testify. 

 

            Returningto the issue of the hazard complaint, MSHA interviewed the three other minerswho were at the site. Tr.35. Those miners, all of whom had been underground,were ‘mucking,’ a term referring to cleanup crew work. All three confirmed thefalls and loud booms that foreman Hyatt acknowledged. *Id.*

 

McDowell stated that he never told Hyatt that MSHA wasshutting down the mine. Tr. 36. The Court finds McDowell’s assertion to becredible. McDowell also stated that neither he nor fellow inspector Dycus shut downthe mine down on June 21st. Tr. 36-37. There is no documentaryevidence to contradict this.[3]

 

            InspectorMcDowell identified Citation No.9701256 as the citation he issued. Thatcitation reflects June 21, 2022, because that is the date the violationoccurred, but it was served the following day to the mine’s operations manager,Joey Weaver. Tr. 44. McDowell confirmed that when the MSHA inspectors arrived onthat first day, all three miners present that day were underground; no one wason the surface. Subsequently, upon a haul truck driver exiting from undergroundat the mine site, McDowell learned from that driver that Mr. Hyatt was theperson in charge but that he was not present at the mine as he was up the roadat the other mine. The inspector then asked the driver to contact Hyatt. Tr.42-43 and Ex. P 1. The driver made several attempts to contact Hyatt *viaradio*, but he was unsuccessful. Tr. 43. Following those failures to contactHyatt, the truck driver was able to reach Hyatt via cell phone. McDowell statedthat cell phones do not have reception underground, so for purposes ofcontacting miners the radio is the only viable option. Tr. 45. This was alsonot contradicted. 

 

            McDowellstated that he issued the citation because the standard requires that “acompetent person designated by the mine operator has to be in attendance totake charge in the event of an emergency.” Tr.44. In this instance there werethree men working underground and Hyatt was the designated person in charge.Tr. 44-45. Here, he noted that if there was an event underground, there wouldbe no communication available as they would have no communication with anyoneon the surface because there was nobody on the surface of the mine, because thedesignated person in charge was up the road at the other mine. Tr. 45. Theinspector believed that the other mine up the road is the Ellijay Mine. *Id.*

* *

**McDowell markedthe citation as “significant and substantial” because: 

 

in the event of an emergency andhistory shows that with underground mining that that can be a variety ofthings. Even down to just a medical emergency of someone having a heart attack,diabetic, whatever. That in the case of an emergency, they would have hadnobody to contact for help. So it would have just been on the three minersworking underground, and in a situation where they could possibly be trapped oranything like that, they have no contact with anybody to take charge in theevent of that emergency. 

 

Tr. 46. 

 

He marked thegravity as reasonably likely to result in a fatality because:

 

if in the event of a mine emergency,if there's nobody to take charge or no contact with anybody for them to garnerhelp if they needed it, which would be the designated person in charge is whothey would contact. If there's nobody for them to contact, it's reasonablylikely that - that injury or illness would occur because in any emergency,especially a mine emergency, time is of the essence. So if they're having tosit around and just wait until he gets in radio range to where they can contacthim via radio, then that, to me, makes it reasonably likely. ...[he elaboratedthat] in the event of a mine emergency. So if just for a example, if somebodyhad a heart attack or stroke underground and they were needing to get ahold of Mr.Hyatt on the surface to call an ambulance or a helicopter or make medicalarrangements for that person and they're unable to get ahold of him. I mean,it's -- it's proven the longer you wait on something like that the less likelythe rate of survival.

 

Tr. 48-49. 

 

            Theinspector continued that the potential hazard would include that which was allegedin the hazard complaint – rock falls. *Id.* For this mine, as he recalled,the mine’s height was 28 to 35 feet. This meant that even a small rock fallingfrom that height could be a hazard. The hazard complaint, which prompted theMSHA inspectors to be at the mine in the first place, asserted that some of therocks that were falling were up to the size of a large front end loader bucket.Tr. 50. McDowell listed the negligence as high. This was based on the operatorbeing well-aware of the requirement to have a designated person in charge atthe mine site. Based on the MSHA interviews “with Mr. Hyatt and the otherminers that it was common practice for him several times a day to be travelingback and forth between the Talona Mountain Mine, and [the other mine] ... [heconcluded] if he's traveling back and forth between the two mine sites that isa common practice.” Tr. 51.

 

 

            InspectorsMcDowell and Dycus returned the next day to investigate the hazard complaints.Tr. 53. Company representatives on that day were Mr. Weaver, Hyatt, and KevinColeman, the mine supervisor, and Eddie Styles. *Id.*On that second day, MSHA informed that they needed to go underground toinvestigate the hazard complaints. Tr. 54. Then they proceeded to travelunderground using two mine operator pickup trucks. *Id.* and Tr. 55. 

 

            McDowellwas in the front, or lead, truck. Tr. 59. The mine has two levels and the grouptraveled through level one and then traveled to level two. However, accordingto McDowell, when they arrived at the bottom of level two, they came upon alarge amount of water at the bottom of the slope. He described the water level asup to about the hood of the truck, adding that it was deep enough so that theinspector could not see the roadway bottom. Tr. 55-56. The inspector consideredthat depth to be significant because in the event of an emergency, which would haveto include the possibility of escaping on foot, travel would be unsafe. Thiswater was in the primary escapeway. The group traveled part way through thewater via the truck towards their intended destination – the 10-west heading,as that was the area where miners had complained to MSHA of rock falls. Tr. 56.However, Inspector McDowell then decided it was unsafe to continue to theirintended destination because of the water and that it was best to not proceedfurther. The trucks then turned around, returning to the surface. Tr. 57. The MSHAdecision to not proceed further was based on the risk of mechanical problemsfor the trucks moving through the water. Also, the water depth was such thatone couldn’t see what was below it, and therefore one could encounter rocks orother material. Tr. 62. This risk would be present if one was on foot as well,presenting tripping hazards. Tr. 63. Though theoretically miners could alsoescape through the secondary escapeway, the “whole level two of the mine wasflooded.” Tr. 63. The Court asked the inspector if he could see if the waterended but the inspector responded that it continued as far as he could see. *Id.*Elaborating, he stated that the water was present as far as the truck’sheadlights could extend. Tr. 58. He could not tell about the water depth ahead,stating there could be deep and shallow portions. Tr. 58. To say the least, acharacteristic of this mine was that large amounts of water comes from itsroof. Tr. 65-66. 

 

            Nomine operator representative in the group objected to the decision to retreat,but McDowell stated that there was a comment that the reason the water was presentwas because the pumps had not been operating on the prior shift. Tr. 60-61. Theinspector asked why the pumps had not been operating and was told it wasbecause they had not worked, meaning they were not operating, on that shift,which is to say the night before the inspectors arrived. Tr. 61-62. 

 

            Aswith the other citation, the inspector also marked this violation assignificant and substantial. Tr. 66. His rationale was: 

 

in the event of an emergency if theminers had to escape the mine, [he] felt it was reasonably likely that injuryor illness could occur traveling through that large amount of water. Because ofyour slip, trip, and fall hazards just where you would not be able to see themine floor when you're traveling. You would[n’t] be able to see where you'restepping; you wouldn't know if there was holes or rocks or material or anythinglike that on the mine floor. Which, in turn, in that amount of water a slip,trip, and fall if someone is unable to swim or ... fell down and hit their headand knocked unconscious or anything like that, then would -- would bring intoeffect, drowning. 

*Id.*

* *

            McDowelllisted the negligence as moderate because the primary means of travel in themine is via vehicles, not on foot. Tr.67. However, he considered the likelyinjury to be fatal because his training informed that escape routes must bemaintained even for foot travel. He reasoned that if a miner slipped and felldrowning was possible. *Id.*

 

            Cross-examinationof the inspector began with questions about the depth of the water McDowell encountered,which he stated was 30 inches or perhaps somewhat less. Tr. 97. The inspectoragreed that, while no order had been issued initially, he did expect that theminers would not go underground and that he expected they would remain on thesurface until MSHA came back to the site. Tr. 99. However, McDowell did notagree that the mine could not pump as a result of that expectation that theywould not go underground, stating that the MSHA team “never stated that tothem.” Tr. 99. McDowell asserted that the miners could have gone backunderground and done work while the MSHA team was conferring with MSHAsupervisory personnel. *Id.*  The MSHA team conducted that conference, viaWi-Fi, at a local restaurant. McDowell asserted that he “expected [the mine]would stay as is, but there was nothing restricting them from going undergroundand doing work.” Tr. 100. 

 

            McDowellstated that when they went underground the next day there was no mining goingon. Tr. 100. Once they proceeded to go underground that second day, he did exitfrom the pickup truck at a location he considered to be at level 2.  Thelocation was at the bottom of the slope from level 1 to level 2. Tr. 101. 

 

            Uponcross-examination, Counsel for the Respondent suggested that perhaps theinability to reach Hyatt was simply that the wrong channel was being used onthe radio. Tr. 104. The Court rejects this claim because the key determinationis that Hyatt was not at the mine site. Therefore, the wrong channel suggestionis of no moment. Even if the claim, unsubstantiated as it was, was established,that would not overcome the violation of the standard for a basic reason: Hyattwas not at the mine site. Accordingly, McDowell’s remark [at Tr. 104]responding to a question, that he has never seen a prep plant and anunderground mine on the same mine ID is irrelevant in this matter. 

 

            McDowelldid confirm that upon meeting Hyatt on the first day at the mine, MSHA advisedthey would return the next morning to start their investigation regarding thehazard complaint. Tr. 105. However, McDowell had a different recollection ofthe conversation. By his account, “Hyatt told [the MSHA team that] it was theend of their shift, and we [i.e. MSHA] were actually wanting to go undergroundthat afternoon, [but Hyatt] said it was the end of their shift, and [MSHA] agreedto come back in the morning. Tr. 105. McDowell said it was important fromMSHA’s view to go underground but he maintained that the mine didn’t want to doit at that time, again because it was the end of the shift. Tr. 106. McDowell denied knowing that there would be a productioncrew coming on for the night shift under normal operations at the mine. He onlylearned that later. Tr. 106. He didn’t think that any work would be done afterMSHA left on that first day. *Id.*

 

            Interms of McDowell marking the citation as S&S and fatal, he admitted thathe considered the allegations of rock falls in part in making thatdetermination. Tr. 107. At that time, the area of concern had been bermed off. Tr.108.While he agreed, in part, that the water hadaccumulated on level 2 because the pumps hadn’t been running, he couldn’t knowhow much water would have accumulated even with the pumps operating. Tr. 109. Hedid concede however that after the pumps resumed only a minimal amount of waterremained. *Id.*And, that being the case, he terminated the citation,as it was then safe to travel. *Id.* Inspector McDowell’s testimony endsat Tr. 110.

 

            TheSecretary then called MSHA Mine Inspector Kevin Dycus.As noted, he was at the mine on June 21, 2022 with Inspector McDowell.[4] Tr. 116. Dycuswas there for the same reason – the complaint about rock falls.*Id.* InspectorDycus’ testimony was consistent with that of Inspector McDowell: 

 

            Whenwe arrived, nobody was there. And they had like a little -- couple of littlebuildings up there. And we was up there at the buildings. And you could see themine portal, and then it had like a fuel tank down there and some stuff. Welooked around. Could not find nobody, so, you know, we stayed there for alittle bit. I don't know how long it was. But we finally had the guy come outof the mine, like, it was a truck driver, haul truck. Codie got with them andasked him who was in charge and then that's when the process started of tryingto get a hold of Nathan Hyatt. They said he was in charge, and he was at theother mine. And he called two or three times, and they finally used the cellphone to get a hold of him. He come up there.

Tr. 117.

 

                        Dycusconfirmed that Mr. Hyatt was not at the mine on that first day. Also, he metJoey Weaver on the second day of MSHA’s visit to the mine. Tr. 118. He alsoconfirmed that Hyatt was reached only by a cell phone. *Id.* Hyatt arrivedat the mine site about 30 minutes after MSHA’s arrival. Dycus affirmed thatminers were underground at the time MSHA arrived. *Id.*

He then recounted that McDowell spoke with Hyatt aboutthe allegations and that McDowell interviewed miners about the issue of rocksfalling and then McDowell spoke again with Hyatt about the information from theminers. Then, according to Dycus, Hyatt informed that,as it was late in the day, *Hyatt made the decision*to lock the gates andthat everyone would come back in the morning to continue the matter. Tr. 119-120.*He told MSHA that the night crew would not be arriving that evening*. Tr.120. Dycus informed that Hyatt advised that he would “wouldlock the gate and come -- we'd come back inthe morning asked, if that would be allright, and we said, yeah.” Tr. 120. Dycus confirmed thatinspector McDowell gave Hyatt a copy of the allegations about rocks falling thatbrought MSHA to the mine site. Tr. 120-121.

 

            MSHA did not issue any citations on thatfirst day. Tr. 123. Dycus confirmed that he went underground on the MSHA’ssecond day at the mine. Tr. 124. Dycus stated that onthe first day MSHA did not close the mine down. Tr. 124. Hyatt closed the mine,not MSHA*. Id.*

 

            On the second day of MSHA’s visit to themine, the two inspectors arrived along with the two MSHA trainees. Severalemployees of the mine were there on that second day. Eddie Styles was one ofthose named by Dycus, along with Hyatt. The second day’s visit was toinvestigate the allegations of the complaint to see if there was any validityto them. Tr. 125. Though they went underground, using two trucks supplied bythe mine for access to the area to be investigated, MSHA never made it to thearea involving the allegations, because of the water they encountered. Tr. 126.Dycus stated that as they proceeded underground they came upon “water [ ]almost up coming in the truck.” He described the water as ‘deep,’ and that theythen stopped at a high spot. They then decided that it was too risky to proceedfurther to the area of concern.”[5]

            Dycus described the quantity of water theyencountered as significant “Well, you're talking about up to the bottom of thetruck where your feet is; you're probably talking some 20 inches maybe, or so.It's a pretty good -- maybe more than that. It's -- it's just a lot of water.You couldn't see, you know --if the bottom -- you know, when you were driving.It was so dark in there that it could drop off. And but it's pretty deep.” Tr.127. 

 

            InspectorDycus then described the problem presented by the water for miners needing touse the escapeway: 

 

it goes back to the deal they gotta-- if they have to walk out, it would be the same hazard. You got unevenground, and you can't see it. And then if you hit a rock or it drops off andyou fall and hit head your head, you pass out. Or if you're driving the vehicleand if it, you know, goes out there and drops off, you know, you're under water.You -- I mean, it's just-- you can't see the road where -- where it's at.

 

Tr. 130.

 

            Heelaborated about the safety hazards presented by the water when asked by theSecretary’s attorney “If miners ... are trying to escape ... from the mine in case ofa mine emergency [and if] they are traveling by foot, based upon the conditionsthat you observed, what, if anything, could possibly happen?” Tr. 132 

 

Slip, trip, and fall because youcan't see where you're walking in the water, you know, if you get overbalanceda little bit and your feet don't, you know, they're not moving as good becausethere's so much water there; you can trip, fall. You can hit rocks, bust yourhead open. Knock yourself out, cut your arm. Now, I'm going by my pastexperience on floors and walkways; they're not as smooth as concrete. They'reoff -- they're a little bit uneven. So and then there could be rocks downthere, you know, loose rocks. So you can't see that, and when you're walking,if you turn your ankle, then you can fall and hit the water. If you pass out,if it's in deep enough water, you can drown. It's a lot of things can happen ifyou have to walk out because you just can't see what's going on. What's --what's underneath you.

 

*Id.*

 

            Dycus addedthat a vehicle using the escapeway under those conditions could also haveproblems.

 

Well, I mean, if it gets deepenough of water, you can stall the engine out, and then you got to get out andwalk. The water could come up inside. Again, you can go the wrong way and go intoo deep, just a dropoff and you can cover the whole truck up if it's deepenough. You know, we did not see no areas, but we didn't go farther than justwhere we went. It might have been deeper areas in there than what we saw. Wedon't know.

 

Tr. 133. 

 

            TheCourt then asked for Dycus’ reaction if, hypothetically, the foreman hadasserted upon encountering the water underground: 

 

yeah, there's water here, butthat's only because when you guys were here last evening, and the shift ended,we -- we shut her down and -- and so we didn't have a night crew. So that's thehypothetical. In other words, he's explained to you why you've encountered thiswater. Do you still, based on your 10 years of experience, do you still issue acitation ...for the escapeway impassible issue? 

 

Tr. 134. 

 

            Thethrust of Dycus’ answer was that the mine had enormous water issues. Somethingon the order of 8 million gallons entering the mine a day, and that EddieStyles treated it as a common everyday issue at the mine:

 

We're talking about, you know,there's a big number, like, 8 million gallons a day that comes in there. So,that's -- that's unheard of in our mining industry. That much water coming in.So by that, and then you going in there, we have no -- and then act like theguy that was with me, Eddie. I think that was -- I'm almost 100 percent surethat was him. He acted like this was a common practice, these escape ways beingthis deep. It wasn't like this all -- they did not tell us or tell me -- we wasin two different vehicles. I wasn't told that, like, hey, this is why all thiswater is because of what happened to the pumps. They act like this was aeveryday occurrence with this much water in the mine.

 

Tr. 135.

Dycus’ bottom line[6]was that he would still issue the citation because the water was a routine andcommon occurrence at this mine. Tr. 136. The inspector’s answer was the same ifthe water was not a common experience because the standard requires that theescapeway be maintained. Tr. 136. In such a situation, the key is to haveeveryone get out of the mine until is safe again. Tr. 136-137.

 

            Uponcross-examination, Dycus agreed that when MSHA arrivedat the mine on the second day, no mining was going on. Tr. 137. He also agreedthat the mine had been closed at the end of the first day – “they closed thegates.” Tr. 138. Further, it was his expectationthat no one would be entering the mine until the next day when MSHA arrived toperform their inspection. Tr. 139.  Dycus then agreed that the pre-shiftoccurred as they entered the mine on that second day. *Id.* He also knewthat there would normally be a night crew underground at the mine, though hedid not know if it would be a production crew. Tr.141. He agreed that it wasMSHA’s expectation that no work would be done between the time MSHA left at theend of the first day until they returned the next day. Tr. 147. 

 

            TheSecretary then called Joey Weaver, the operations manager of the Carmeuse Mine.Mr. Weaver was designated as an adverse witness. Tr. 152. He informed thatNathan Hyatt was the foreman on June 21, 2022, but that Hyatt is no longeremployed with Carmeuse. *Id.* Weaver was not at the mine on the first dayof MSHA’s visit, June 21, 2022. Tr. 153. However, he agreed that the mine wasopen on that date and that miners were working underground on that date aswell. *Id.* Further, he agreed that Hyatt was working at the Talona mineon that date. *Id.* As Weaver was not there on that date, he did not knowif Hyatt was underground that day, but he knew Hyatt was at the mine because hecalled him that day. Tr. 154. All Weaver knew about that day is what Hyatt toldhim over the phone. *Id.*Further, on that dayWeaver did not speak with the MSHA inspectors. Tr. 155. Not being presentthat day, he did not personally observe any of the conditions at the mine theneither. *Id.*

* *

            Weaverwas at the mine on the second day. Tr. 156. He was a participant on that secondday, and he was in one of the two trucks that went underground then. *Id.* He agreed that there was water on the mine floor on June 22, 2022, and thatthey were there to investigate a hazard complaint. Tr.157. The group did notmake it to the location of the alleged hazard, as MSHA had the trucks stop atthe 15/16 crosscut. *Id.*Weaver stated that he questioned inspector Dycusover the decision to exit from underground, but he did not voice an objectionto the decision, nor did he tell MSHA that they should keep going forward tothe asserted hazard location. Tr. 158. However, when asked by counsel for theRespondent, Weaver stated that MSHA makes the determination about where aninspection will proceed. Tr. 160. He acknowledged that he did see the hazardcomplaint and the allegation of large rocks falling from the roof. Tr. 159. 

 

            Whenthe Respondent began its formal direct exam of Weaver, he informed that he isthe operations manager for Carmeuse. Weaver has extensive mining experience. Tr.163. His present position entails two mine sites in Virginia and six sites inNorth Georgia, with the subject mine, Talona Mountain, (“Talona”) being one ofthose under his responsibility. Tr. 160-161. Weaver is also responsible for theMarble Hill mine which is also known as the “Ellijay Mine.” Tr. 161. Weaver’soffice is based some 45 miles from the Talona Mine. Weaver has several minemanagers under him. Hyatt did not report to Weaver, instead he reported to themine manager, Kevin Coleman, who was in charge of the Talona, the Marble Hilland the Cisco Mines.  Tr. 162. However, if Coleman was not available Hyattcould contact Weaver. Tr. 162-163. 

 

            Regardingthe Carmeuse Mine, Weaver informed that it has two shifts, a day and anevening. Tr. 164. Travel in the underground mine is by pickup truck. *Id.*Weaver agreed that the Talona mine, which started in 2014, was intended toreplace the Marble Hill/Ellijay Mine, because that mine was running out ofreserves. *Id.* The distance between the two mines is slightly less thantwo (2) miles. Tr. 164-165. The mines are on the same road. Tr. 165. **BeforeTalona began operations, the following were part of the Ellijay Mine: theunderground portions of the Ellijay mine, the preparation plant, crushingfacility, and the -- the maintenance shop was all on that***Id**.******* Weaver stated that when Talona began operations, the company includedparts from Ellijay on the Talona mine ID, adding the plant, the shop (wherethey service local equipment) and the crushing facility. He described the plantas a facility that “that crushes the stone that's mined out the Talona Mine,and ... a mill that also mills the stone down to pow[d]er for carbon business.”Tr. 166.  These were added to the same Mine ID as the Talona. Tr. 165. Thisoccurred at a time when the Ellijay was idled. *Id.*

 

            Weaverstated that when MSHA inspects the Talona Mountain Mine it includes the shopand plant. Tr. 167.  The Ellijay Mine had been idled, but it is presentlyoperational. Tr. 167.   In June of 2022, the Ellijay was not operating. Tr.168. Weaver stated that when MSHA inspects the Ellijay, they do not inspect theshop and plant for Ellijay. Tr. 168. Weaver also stated that when Talona cameonline, the company established communication between that mine and the shopand the plant. This was through a “leaky feeder-type system with an antennae onthe surface that picks up at the shop and the plant.” *Id.*When a signalcomes to the surface it is relayed by an antenna over the shop, but the systemonly works on channel 1, even though there are 9 or 10 channels on the radio.Tr. 168-169. Weaver maintained that there has never been a problemcommunicating between the underground mine and the shop and the plant. Tr. 169.

The Court wouldnote that, plainly, from this incident, there has been at least one suchinstance of a problem communicating. 

 

            Weaverhedged when asked if, as part of the miners’ training, they are made aware ofthe communication system between the underground mine and the shop and theplant, that they are all part of the Talona mine ID, responding, “When we dothe tours, we tour all the facility and tell them this is a part of the mine, butto designate the difference, I'm not sure of that.” Tr.169-170. But he assertedthe miners are aware that the shop and plant are part of the Talona operation. 

 

            On thefirst day in issue for this matter, Mr. Coleman was the mine manager in chargeat the Talona Mine. Tr. 170. However, he was not there for the entire day.After he departed, mine foreman Nathan Hyatt was then in charge. At that point,Weaver’s version of the events of that day were very different from that ofMSHA’s, as Weaver stated that, in talking with Hyatt, Hyattinformed that “MSHA was there on a complaint, and they're asking us to lock theportals until they can come back tomorrow and inspect.” Tr. 171. Weavercontinued that he told Hyatt “that would be fine, but [to] let them [i.e. MSHA]know that once the pumps run out of fuel, we will begin to flood.”[7]*Id.* Accordingto Weaver, Hyatt then asked him to hold their conversation and when he cameback to the call, Weaver stated that Hyatt told him “that was okay.” Tr. 172. 

 

            Weavercontinued that Hyatt told him during their conversation that day that he(Hyatt) was at the shop, checking a piece of equipment. *Id.* According toWeaver, the Ellijay mine was not operating that day. *Id.*Weaver maintained that after his conversation with Hyatt,his expectation was that the mine would flood. *Id.* In fact, Weaverstated that they would come across the roadway flooded the next day. *Id.*His plan was that they would then start the pumps to dewater the mine. Tr. 173.

 

Inspeaking further about the pumps, Weaver informed that the “pumps are dieselfuel pumps, and they have to be fueled within every 8 hours.” *Id.* Normallythey are fueled at 4:00 p.m., quitting time for day shift, then at midnight andonce again in the morning. Thus, the day shift fuels them twice; night shiftfuels them once. *Id.*

 

            Thepumps work by having the water pumped from level 2 to level 1 and then to asump pump and from there to the surface. There are electric pumps too, but theycannot keep up with the water. Weaver stated that ifthe evening crew had worked that night, they would have fueled the diesel pumpsand they would have kept the mine dewatered. Tr. 174. Accordingly, based on hisconversation with Hyatt, it was MSHA’s idea to close the gates and allow thepumps to run out of fuel. Tr. 174-175. Weaver, based on his conversation withHyatt, believed that MSHA knew the mine would “be starting to flood that [next]morning.” Tr. 175.  Weaver estimated that it would take less than two hoursfor the pumps to remove the excess water. *Id.*

 

Turning to the events of the next day, Weaver was then atthe mine for MSHA’s second visit. He arrived about 5:30 that morning. Despitehis statement that the mine had been gated the previous night, when he arrived“-- the mine manager was there, ... Mr. Styles, the supervisor, was there, andthe night shift and day shift crew was there.” Tr. 176. Thus, he admitted thatthe night shift crew *was there. They came to work that night. Id.* However,Weaver maintained that they did not go underground that night. Instead, theyspent the night washing equipment. *Id.*

* *

            Regardingthe second day of MSHA’s visit, Weaver stated that he did go underground withthe inspection group that day. According to his recounting, they “went down --we went onto level 1, across level 1, down the ramp to level 2, and then turnedand come about halfway out level 2.” Tr. 177. Ex. R-2 and Ex. R 2-1. That exhibit, R2, is a mine map of level 2 and the downramps from the level 1 to level 2, as it appeared on June 22, 2022. Tr. 179. Atthe entrance to that level, he observed water at the intersection at crosscut18. *Id.* He took no water measurements at that location, but he estimatedit to be 15 to 20 inches maybe. Tr.180. The pickup trucks drove through thiswater accumulation. *Id.* The two pickups then proceeded down to level 2,which is south to the entrance. *Id.* Once past the location where Weavermarked a ‘B’ with a circle on the exhibit, he maintained no water wasencountered, stating that aside from some mudholes, it was fairly dry. Tr. 181.They then proceeded down South 2, and he contended that they were not drivingthrough water there. *Id.* Weaver stated that at the area where the trucksstopped at crosscut 15 there was no water. Tr. 182. He confirmed that thetrucks went no further from that point. Tr. 183. He stated that MSHA gave noreason for returning to the surface at that time but when on the surface Dycusinformed that the mine would have to come up with a plan to prevent water fromcoming in the mine. He added that MSHA would not allow pumping until the minehad a plan. Tr. 184. Weaver reiterated that there was no water at the locationwhere the trucks stopped and that even in the direction where the trucks hadbeen heading, which was uphill at that location, there was little water ahead,perhaps 4 to 5 inches. Tr. 186. Weaver asserted that, if the pumps had beenworking, the water issue would not have been present. Tr. 188.

 

            Ultimately,in the wake of a 103(k) order, a plan for removal of the water issue wassubmitted to MSHA and the mine resumed pumping on June 23rd. Tr.190. It then took about two hours to pump the water down on level 2. *Id.*Weaver was then directed to his notes for the second day at the mine, June 22nd.Those notes reflected “drove level 2 water high in 18 crosscut.” Tr. 192.Annotated map and letter B. 

 

Upon cross-examination by the Secretary, Weaver was again directedto his notes for June 21, wherein he wrote “asked about blocking portals until theycould get back in the morning to start investigating complaint." Tr.193-194.Weaver confirmed he wrote that and that he did not seek any confirmation fromto verify with MSHA that it made that request. Tr. 194. 

 

            Regardingthe underground visit on the second day, Weaver reasserted that the groupturned around at crosscut 15. Tr. 196. When then directed to Ex. R 1, page 2,Weaver read from his notes which reflect “due to level 2 water height, crosscut18 at north fork, drove around to the crosscut up level 2 and got out. Theylooked at the water coming through and said let's go outside.” Tr. 197.  Askedif the group actually turned around at crosscut 16, Weaver agreed that hisnotes reflected that it was at 16 that the group turned around. Tr. 197-198. However,Weaver stated that, despite his notes, the group actually turned around atcrosscut 15. Tr. 198. Thus, he stated that his notes were incorrect about that.At crosscut 18, Weaver acknowledged that the water was ‘a little bit’ highthere. *Id.*Further, Weaver said that at crosscut18 the water was low, but that was after it had been pumped out. Tr. 199. Headmitted that the water level was high at crosscut 18. Tr. 199-200. At thatlocation, Weaver stated that the water was 15 to 20 inches high. Tr. 200.  Itshould be noted that the hazard complaint involving the allegation of rocksfalling was located at crosscut 10. Tr. 200.

 

            TheCourt asked about the escape route, Weaver confirmed that if one were atcrosscut 8, the only way to exit the mine if one was at crosscut 8 or 11, wouldbe either through where it's marked South 1 or South 2. Those are the twoescapeways. Tr. 205. There is no escape route below crosscut 8. *Id.*

 

            Infurther examination, the Secretary’s attorney asked about and Weaver confirmedthat regarding the Talona Mine, there is a shop area and the shop area is thesame as for the Ellijay mine and the shop is adjacent to the mine. They areseparate buildings about 200 yards apart. The shop services both Talona andEllijay. Tr. 209-210.

 

            TheCourt then asked for clarification about the two mines, Talona and Ellijay.Weaver agreed that the first mine was the Elijah *and then at some point intime there was a plant and a shop, and that they were all connected with the Elijah*.Tr. 212. Continuing from the past to the present day, the Talona mine was latercreated. *Id.* Accordingly, Weaver agreed there was no Talona mine when theElijah and the plant and the shop were first created. Tr. 213. Weaver alsoinformed that **the Talona mine opened*****some 15 plus years, possibly20 years*, after Elijah began its operations.***Id.*

 

            TheCourt also inquired about Ex. R1, at page 2 and focused on the remark inWeaver’s notes ‘interviewed hourly crew and ‘big bump yesterday.’ Tr. 213-214. Thesenotes, he informed, were made at the time of those events. Tr. 214. His notesthen remarked, “small and big rocks. Big rocks fell; size of loader buckets.Small ones; size of desk.”  The information he wrote in his notes about this camefrom MSHA. Tr. 215. His notes then remarked, ‘need ground control plan’ andWeaver explained that was something asked for from MSHA. *Id.* The same istrue about the remark in his notes that “employee saying common practice thatrocks are falling all the time," that this was also something MSHA relayedto Weaver. 

** **

**Analysis of thealleged violation of 30 C.F.R. § 57.18009**; failure to have a competentperson designated by the mine operator in attendance to take charge in case ofan emergency when persons are working at the mine.

** **

****The****Secretarynotes that “[o]n June 21, 2022, when inspectors traveled to Talona mine, theydiscovered that miners were underground working, but there was not a competentperson present to take charge in case of an emergency.” Sec’s Br. at 11. Thoughthe Respondent asserts that the Talona Mine was under the same identificationnumber as the Ellijay Mine, the fact remains that the designated person incharge, Mr. Hyatt, was at the Elijah Mine, not the Talona Mine, and as such,Hyatt was not in attendance at Talona. Employing the plain language definitionof ‘in attendance’ those words mean “‘to be present at,’ ‘to take charge’ or ‘toremain ready to serve, wait.’” *Id.*[8]. 

 

            TheCourt agrees with the Secretary’s statement that “it is clear by the intent ofthe language that the standard anticipated the designated person be on site andimmediately available to make decisions and activate emergency plans in theevent of a mine emergency.”[9]*Id.*

            It isundisputed, as the Secretary notes, that factually Hyatt was approximately two(2) miles away from the Talona Mine and that when MSHA arrived on that firstday miners were underground. It also undisputed that Hyatt could not be reachedvia the mine’s radio, that it took a cell phone to reach him and that it tookabout 30 minutes for Hyatt to arrive at the Talona Mine. *Id.* at 12. 

 

            On theissue of whether the Secretary’s take as to whether the violation wassignificant and substantial, the Court subscribes to the testimony fromInspector McDowell that “history shows that with underground mining there canbe many things that create a mine emergency and [in this instance] if there wasa mine emergency the miners would not have [had] anyone to take charge.” *Id.*at 13. Though it is true, as the Secretary also notes, that the Inspectorbelieved that it was reasonably likely “that an injury or illness would occurthat would be fatal,” *Id.*

 

            TheCourt would observe that an injury need not be fatal to qualify as significantand substantial. 

 

            Thus,the Court finds that, under the measure of continued normal mining operations,there was an inherent risk of an injurious event and a resulting injury whenminers are working underground. And, applying the cited standard, one is topresume that the hazard has occurred in assessing the reasonably likelihood ofan injury. Perforce, not having a person in attendance at the underground site,with miners underground as here, necessitates a finding that the violation wassignificant and substantial. 

 

            TheCourt also agrees with the Secretary that high negligence was amplydemonstrated in this matter. In this regard, the Secretary points to theunrefuted testimony that “it was customary practice for Foreman Hyatt to travelback and forth between the Talona Mountain Mine and the Ellijay mine severaltimes a day [and ] ... that the operator was aware that a designated person incharge had to be on site . *Id.* at 14.  The Respondent’s assertion thathigh negligence is inappropriate fails, as it rests upon the argument thatHyatt could be at either the maintenance shop, some two miles away from theunderground mine, or the underground mine, and meet the standard on the claimthat the two locations were “functionally integrated.” R’s Br. at 16.    TheCourt rejects this legerdemain both factually and legally. Recall thatfactually the shop  was in existence decades before there ever was a Talonamine. Further, the reality of being “in attendance” some two miles down theroad does transmogrify into attendance at the Talona underground mine. 

****Respondent assertsthat the requirement of 30 C.F.R. §57.18009, that “[w]hen persons are workingat the mine, a competent person designated by the mine operator shall be inattendance to take charge in case of an emergency,” was not violated. R’s Br.at 11. The assertion is without merit. Respondent contends that “Mr. Hyatt wasthe competent person designated to be in charge at Talona when the MSHApersonnel arrived on June 21, 2022 [because] [h]e was present at themaintenance shop.” *Id.* In Respondent’s telling of the events on thatday, “[t]he miner who initially met the MSHA personnel knew that Mr. Hyatt wasthe competent person in charge, knew he was at the maintenance shop andcontacted him to speak with the MSHA representative upon their arrival ... Suchconstitutes compliance with the cited standard.” *Id.* at 12. The firsttwo assertions do not speak to the requirement of the standard and the last,that the miner “contacted [Hyatt] to speak with the MSHA representative upontheir arrival” is a half-truth. The facts are that Hyatt was not *inattendance* at the underground mine site, and he was not able to becontacted using the mine’s radio system. 

 

            Respondent’stheory is that Hyatt was in attendance by his presence at the maintenance shopsome two miles from the underground mine location. The Respondent contends thatas the maintenance shop is part of the Talona mine ID and that MSHA inspectsthat shop when it conducts its regular inspection, there was compliance. *Id.*

 

            In theevent the Respondent’s assertion that the standard was satisfied is rejected,the Respondent alternatively contends that the violation was not significantand substantial,[10]not reasonably likely to occur and that the gravity of any injury should not bedeemed as ‘fatal.’ *Id.* at 13.  Respondent argues that the purportedhazard was the alleged rock falls made in the hazard complaint which broughtMSHA to the site. Respondent maintains that, as the claimed hazardous area inthe 10 West heading had been bermed off when MSHA arrived on that first day,there no longer was any hazard. Under that telling, “that hazard no longercould have existed by the time that Mr. Hyatt’s presence at the maintenanceshop was called into question.” *Id.* at 15. 

 

            Suchan argument comes up short, because it rests on the idea that the onlypotential hazard had been addressed. The standard is not so limited. The plainpurpose of the standard does not evaporate when a particular hazard isallegedly addressed. Instead, the purpose is to have one in attendance to takecharge in the event of *any* emergency. Further, in attendance, does notmean ‘nearby.’ 

 

            Respondentis also too generous in its description that “the miner [the MSHA inspector]initially met had difficulty contacting Mr. Hyatt by radio.” *Id.* On thatscore, apart from the fact that Hyatt was not in attendance, the reality isthat Hyatt was *not*able to be contacted using the mine’s radio system. Contactwas achieved by using a cell phone. 

 

            On thesubject of the mine operator’s negligence, the Respondent contends that theinspector’s ‘high negligence’ designation was unwarranted.  Respondent assertsthat the degree of negligence should be measured by considering “the totalityof the circumstances holistically,” citing *Lehigh Anthracite Coal, LLC,*40 FMSHRC 273, 279 (April 2018), quoting *Brody Mining LLC*, 37 FMSHRC1687, 1702 (Aug. 2015). Here too, the Respondent raises the points it made whencontending that there was no violation, namely that the maintenance shop sharesthe same mine ID as Talona and is ‘functionally integrated’ with Talona’smining process. *Id.* at 16. 

 

            Ratherboldly, the Respondent also highlights that the mine had a communication systembetween the shop and the underground mine and that the miners were trained onthat system.  As the Respondent put it, high negligence is inappropriatebecause the mine “provided a communication system between the shop andunderground mine and trained miners on the interrelation between themaintenance shop and underground mine.” *Id.*This ignores that the mineand the shop were miles apart, that the same shop existed at the Elijah Minelong before there ever was a Talona Mine, that foreman Hyatt was not at theTalona underground mine and, by the way, the communication system, touted bythe Respondent, with the miner training on it and all, did not work and thatcontact had to resort to using a cell phone to reach Mr. Hyatt. 

 

            TheCourt adopts the rationale of Inspector McDowell with his conclusion that theviolation involved high negligence.[11]****The Court finds that foreman Hyatt traveled back and forth between theEllijay and Talona mines several times a day and that it was a common practicefor him. 

            TheCourt, applying the totality of the circumstances approach, and relying uponthe credible testimony of MSHA Inspectors McDowell and Dycus, finds that highnegligence was established. 

 

            Regardingthe gravity for the failure to be in attendance violation and the inspector’sevaluation that an injury was reasonably likely to occur, and that such injurywas reasonably likely to be fatal and whether, by extension, the violation was“significant and substantial,” the Court finds that Inspector McDowell’s evaluationis supported by the record, and was correct.in each of those aspects.[12]

 

 

 

 

**The allegedviolation of Section 57.11051(a): the maintenance of escape routes beingmaintained in safe, travelable condition.**

** **

****As noted above,per Citation No. 9701258, this citation involves the requirement that, “[e]scapewayroutes shall be [i]nspected at regular intervals and maintained in safe,travelable conditions.” 

 

            Respondentraises two arguments in support of its claim that there was no violation of thecited standard: “[a]t times relevant to this matter, the escapeway remained in ‘safe,travelable condition;’ [and that] Carmeuse ‘maintained’ its escapeway in such propercondition. R’s Br. at 17. Alternatively, Respondent contends that “to theextent that the escapeways were not in such condition at times relevant to thismatter, this was due to facilitation of the MSHA inspection.” *Id.*

 

            Insupport of its contentions, the Respondent asserts that, despite the water accumulationsin the escapeway, the pickup trucks could travel the underground areas withoutproblem.[13]Putting aside for the moment the contention that the pickup trucks could travelwithout any problem, that assertion does not speak to the obstacles the watercould present if foot travel were required during an escape. As the Respondentnotes, the water “was approximately 15-20 inches in depth.” *Id.* TheCourt does not consider this to be an insignificant amount. Without decidingthe exact extent of the water accumulation nor its depth, the Respondent’sassertion that “the water did not significantly continue past crosscut 18,” issufficient to establish its presence, at least to that extent. This, coupledwith the testimony of both MSHA inspectors about the depth of the water and thehazards it would present in the event of an escape is sufficient to establishthat the escapeway was not then “maintained in a safe, travelable condition,”per 30 C.F.R. § 57.11051(a). That the Respondent should be held responsible forthat accumulation is a different question. 

 

            Thereal basis of the Respondent’s defense to this violation is that MSHA broughtit about by closing the mine on the first day. As the Respondent expresses it,the citation should be vacated because “Carmeuse maintained the escapewaythrough consistent pumping and *the development of the water in this instancewas due to the facilitation of MSHA’s inspection.**Id.* at 19(emphasis added). A problem with this contention is that MSHA did not close themine on that first day. There is no competing factual basis to support theassertion that MSHA closed the mine that day. Clearly, it did not. No closureorder was issued. 

 

            Alternatively,should the Court determine that the standard was violated, Respondent contendsthat the significant and substantial (“S&S”) and “reasonably likely” and“fatal” gravity findings are inappropriate. *Id.* at 20. In support ofthis, Respondent revives its claim that the pickup trucks were able to “travel[] in and out of Level 2 twice during that inspection, meaning that theescapeway was traversed four times through the water without issue.” *Id.*at 21. The record does not establish on way or the other whether the truckswould be impeded by the water. The only finding that can be made on that issueis that the MSHA inspectors, encountering water as they proceeded to the siteof the hazard complaint, decided it was ill-advised to proceed further and forthat reason the trip to the site was aborted. 

 

            Continuingwith its position that MSHA created the water accumulation in the escapeway,the Respondent asserts that MSHA’s actions interfered with normal miningoperations. As the Respondent expressed it “[b]ut for the MSHA inspection, [thedewatering] would have occurred on June 21-22. Both [the] night shift on June21 and [the] day shift on June 22 were held out of the mine to facilitate theMSHA inspection ... [n]o mining activities were occurring underground at the timeof the inspection on June 22 [and] [a]ssuming continued normal miningoperations, the pumps would have been fueled and activated and the minedewatered before mining operations were to resume. Therefore, miners performingnormal mining operations would not have been exposed to these conditions.” *Id.*at 22. Respondent concludes that “[u]nder these circumstances, the S&S andgravity findings are inappropriate.” *Id.*

So too, Respondentadds, moderate negligence is also excessive. *Id.*

 

****The Secretary notesthat on the second day of MSHA’s presence, the parties endeavored to travel tothe underground location identified in the hazard complaint as the area offalling rocks. There is no dispute that, in attempting to reach that location,the parties, traveling in two pickup trucks encountered water in the escapeway.While the amount of water was disputed, it is true that the MSHA inspectorsdecided to abort the trip to the alleged hazard location because of that waterand their decision that it was not safe to proceed further. The Court findsthat the credible evidence is that McDowell acted prudently in making thedecision to turn around and return to the surface. He described the concerns heheld which led to that conclusion, as the Secretary notes: 

 

McDowell was concerned about thedepth of the water because a vehicle traveling in it could become stalled andnot be able to navigate the water which would require the miners to get out ofthe vehicles and navigate the water on foot He explained that a miner wouldhave to travel the primary escapeway to exit the mine. He testified that aminer could travel the secondary escapeway; but the entire level two wasflooded and both escapeways had the same situation. Inspector McDowelltestified that there were substantial amounts of water coming from the mineroof and it was like standing outside in a rain shower. 

 

Sec’s Br. at 15,citing Tr. at 63. 

 

**Analysis of the allegedescapeway maintenance violation**

** **

****On the first dayof MSHA’s appearance at the mine to investigate the hazard complaint, Hyattinformed the MSHA inspectors that it was near quitting time for the mine. MSHAthen agreed to postpone its underground inspection regarding the alleged hazarduntil the following day. While it is undeniable that no closure order wasissued, Inspector McDowell acknowledged that he expected that the mine wouldstay as is and that it was MSHA’s expectation that miners would not gounderground until they returned the next day. McDowell confirmed that when MSHAdid return the next day there was no mining going on. He also agreed that, atleast to some degree, water had accumulated overnight because the pumps had notbeen running. He also agreed that after the pumps resumed functioning only aminimal amount of water remained. 

 

            MSHAInspector Dycus’s testimony was consistent with that of Inspector McDowell, ashe confirmed that Hyatt made the decision to lock the gates and that everyone wouldcome back in the morning to continue the matter. He agreed that it was MSHA’sexpectation that no work would be done between the time MSHA left at the end ofthe first day until they returned the next day and he affirmed that, when MSHAarrived on day 2, no mining was going on. 

****

            Basedon the credible testimony, although the Court finds that escape routes were notbeing maintained in a safe, travelable condition, as explained below, that doesnot resolve whether there was a violation. In the Court’s estimation, theexpression “a pox on both your houses” applies. This view comes about becauseit was incumbent on both sides to communicate better on the issue of the mine’sinherent characteristic of significant and chronic water inundation. ThoughMSHA did not issue a closure order, formal or otherwise, when the first daycame to an end it was clear that the mine would not be in a production modethat evening. 

 

            Carmeusehad a responsibility to fully inform the MSHA inspectors that failure to fuelthe pump generators would result in flooding underground overnight. MSHA inturn had the responsibility of making sure the operator understood that it wasnot precluding the mine from all activity. It seems clear that MSHA’soverriding concern was that underground *mining* was not to continue untilit had an opportunity to assess the hazard complaint. With both sides failingto adequately communicate and it being clear that the accumulation encounteredthe next day was attributable to the failure to keep the pumps running overnight,the Court can hardly find that the operator violated the standard under suchunique circumstances. There was no *credible* testimony to support theidea that escapeway flooding was a common condition at the mine. All theevidence points to the conclusion that, at least for purposes of this matter,the escapeway would have been maintained in safe, travelable, condition but forthe mutual miscommunication. 

 

 

**CONCLUSION**

 

            Asdiscussed above, **the Court finds that the Respondent violated 30 C.F.R.§ 57.18009,and as such, Citation No. 9701256 is AFFIRMED**. The violation was reasonablylikely to occur and reasonably likely to result in a reasonably serious injuryand accordingly was a significant and substantial violation. The violation waseattributable to high negligence.   **The Court imposes a civil penalty in theamount of $3,022.00 for this violation**. In arriving at this penalty, theCourt considered each of the other statutory factors, including the size of theoperator, the history of violations, which was zero, the ability to continue inbusiness and the good faith in abating the violation. Appendix and Exhibit “A.”

 

**Further,for the reasons set forth above, Citation No. 9701258 is VACATED**. 

 

 

**ORDER**

** **

****For the****reasonsset forth above, the Respondent is **ORDERED TO PAY the sum of $3,022.00 forthe violation of Citation No. 9701256**within 40days of the date of this decision.[14]

 

 

 

 

/s/ William B.Moran

William B. Moran

Administrative LawJudge

 

 

Distribution:

* *

C. Renita Hollins,Esq., Office of Solicitor, U.S. Department of Labor, 61 Forsyth, S.W., Room7T10, Atlanta, GA 30303 hollins.cordelia.r@dol.gov

 

Arthur Wolfson, Esq., Partner, Fisher & PhillipsLLP, Six PPG Place, Suite 830, Pittsburgh, PA 15222 awolfson@fisherphillips.com

~~ ~~

~~ ~~

~~ ~~

**APPENDIX**

The parties entered joint stipulations before thehearing. The parties stipulated to the following: 

(1) Jurisdiction exists because Carmeuse Lime,(“Respondent”) is an operator of a mine as defined in section 3(d) of the MineAct, 30 U.S.C. § 802(d), and the products of the subject mine entered thestream of commerce or the operations or products thereof affected commercewithin the meaning and scope of section 4 of the Mine Act, 30 U.S.C. § 803; 

(2) Respondent is a “mine” as defined in § 3 (h) ofthe Mine Act, 30 U.S.C. § 802(h); 

(3) Operations of the Respondent at the mine at whichCitations 9701256 and 9701258 were issued were subject to the jurisdiction ofthe Mine Act;

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

(5) Respondent is the operator of Talona Mountain Mine(Mine ID No. 09-01228), which is subject to the Federal Mine Safety and Health Actof 1977 (the “Mine Act”) as amended; 

(6) Respondent was the operator of Talona MountainMine at all times relevant to this matter beginning June 21, 2022; 

(7) Payment of the total proposed penalty of $3,931.00for the two citations in this matter will not affect the Respondent’s abilityto continue in business; 

(8) The individual whose name appears in Block 22 ofthe Citation in contest was acting in an official capacity and as an authorizedrepresentative of the Secretary of Labor when the Citations were issued; 

(9) Citation Nos. 9701256 and 9701258 were issued andserved by a duly authorized representative of the Secretary of Labor upon anagent of Respondent at the date, time and place stated in the Citation asrequired by the Act; 

(10) Exhibit “A” attached to the Secretary’s Petitionin Docket SE 2022-0196 contains authentic copies of the Citations with allmodifications or abatements, if any. 

Finally, the exhibits offered by the Secretary and theRespondent were stipulated as authentic, but no stipulation was made as totheir relevance or to the truth of the matters asserted.

 

----

[1] The JointStipulations are set forth in the Appendix

 

[2]The MSHA traineeswere Justin Vincent and Erastus Cardwell.

[3] There was somequestioning by Counsel for the Secretary about the mine management’s evaluationof the falls and booms on the day before the events in issue. Respondent’sCounsel objected to the questioning on the basis that it was nor relevant tothe issues in this matter. However, the Court overruled the objection,informing that it “might have some relevance tangentially to the issue of thepotential hazard of having men underground without a person on the surface. ...it's of some relevance to [the Court] contextually.” Tr. 41. The Court standsby its ruling on this issue. 

[4] InspectorMcDowell is also referred to as “Christopher” and “Codie.” Tr. 116

[5] TheCourt finds that MSHA’s decision to retreat was wise. As Dycus described the conditionsMSHA encountered at that time, MSHA “decided tostop on a place wherethere wasn't very much water, and we got out, and we talked, and we could hearsomuchwater coming in we decided to go back out -did not -- because we already beentold rocks as bigasbuckets -- load buckets and then small rocks,like desks was falling. And when yougot that muchwatercoming in, it will eat out a cavity and that -- we was afraid that more rockswould be falling. So we went back out.” Tr. 126. 

[6] While Dycus wasat the mine both days, and was therefore able to answer some questions, overallhe was second to Codie [ ] in this matter and was unable to answer severalquestions such as whether the mine asked for permission to start the pumps. Tr.145. As he put it, “Codie was in charge.” Tr. 145. 

[7] Weaver repeatedthe claim that he told Hyatt “that would be fine to lock the gates, but oncethe pumps run out of fuel, the mine will start to flood.” Tr. 173. 

[8] Citing *TheAmerican Heritage Dictionary*, Second College Edition 439 (1982).

 

[9] Secondarily, theCourt also agrees with the Secretary’s statement that “it is wellestablished that the Secretary’s interpretation of her own regulations in thecomplex scheme of mine health and safety is entitled to a high level ofdeference and must be accepted if it is logically consistent with the languageof the regulation and serves a permissible regulatory function.” *Id.* at12, citing *Island Creek Coal Co.,* 20 FMSHRC 14 (January 1998); *Kerr-McGeeCoal Corp*. v. FMSHRC, 40 F.3d 1257, 121261-62 (D.C.Cir. 1994), cert denied,115 S.C.t 2611 (1995).

[10] In making thatclaim, the Respondent concedes, and the Court agrees, that whether a particularviolation is S&S must be based on the particular facts surrounding theviolation and that an evaluation of the reasonable likelihood of an injuryshould be made assuming continued normal mining operations, citing *Texasgulf,Inc*., 10 FMSHRC 498, 501 (April 1988), and *U.S. Steel Mining Co*., 7FMSHRC 1125, 1130 (Aug. 1985). *Id.* at 14. 

[11] An obviousmisstatement, the Secretary incorrectly states that the inspector evaluated thenegligence as moderate. Sec. Br. at 9. The inspector listed the negligence as‘high.’ In contrast, the inspector listed the negligence as ‘moderate’ for thealleged escapeway maintenance violation. In the Secretary’s Reply Brief, thaterror was corrected, there listing the negligence as ‘high.’ Sec. Reply at 4-5.

 

[12] In this regardthe Court notes that the Secretary states the following in this regard: “TheCommission’s decision in *Mathies Coal Co.*, 6 FMSHRC 1 (Jan. 1984), setsforth four elements in determining whether a violation is S&S; the secondelement is the existence of “a discrete safety hazard -- that is, a measure ofdanger to safety -- contributed to by the violation.” *Mathies*, 6 FMSHRCat 3. However, in *Newtown Energy, Inc.*, 38 FMSHRC 2033, 2036-40 &n.13 (Aug. 2016), the Commission reformulated step two of the *Mathies*test. The Commission determined that, at step two of the *Mathies* test,the Secretary must demonstrate that the violation was reasonably likely toresult in a hazard given continued normal mining operations. *Newtown*, 38FMSHRC at 2038 (emphasis added). In *Peabody Midwest Mining, LLC*, theCommission “integrated” this new requirement into *Mathies* and held thatstep two requires proof that “the violation was reasonably likely to cause theoccurrence of the discrete safety hazard against which the standard isdirected....” 42 FMSHRC 379, 383 (June 2020).

The*Newtown/Peabody* reformulation is inconsistent with the Mine Act’sdefinition of S&S, which focuses on violations that could significantly andsubstantially contribute to a hazard. 30 U.S.C. § 814(d)(1). This aspect issatisfied if the violation “could” contribute to the hazard. Section 104(d)(1)of the Mine Act expressly uses the term “could,” and the Fourth and SeventhCircuits have rejected the idea that step two requires proof of reasonable likelihood.*See Knox Creek Coal Corp. v. Sec’y of Lab.*, 811 F.3d 148, 164 (4th Cir.2016) (noting that at step two, “the Secretary must establish that theviolation contributes to a discrete safety hazard,” and at steps three andfour, “that the hazard is reasonably likely to result in a serious injury”); *PeabodyMidwest Mining, LLC v. FMSHRC*, 762 F.3d 611, 616 (7th Cir. 2014) (“thequestion is not whether it is likely that the hazard . . . would have occurred;instead, the ALJ had to determine only whether, if the hazard occurred(regardless of the likelihood), it was reasonably likely that a reasonablyserious injury would result”). The legislative history of the Mine Act also“suggests that Congress intended all except ‘technical violations’ of mandatorystandards to be considered significant and substantial.” *Consolidation CoalCo. v. FMSHRC*, 824 F.2d 1071, 1085 (D.C. Cir. 1987); accord *Knox Creek*,811 F.3d at 163 (“Congress did not intend for the S & S determination to bea particularly burdensome threshold for the Secretary to meet”). In addition,this analysis is consistent with the Commission’s own understanding of step twoof the *Mathies* test up until *Newtown*. *See, e.g.,**MusserEng’g, Inc.*, 32 FMSHRC 1257, 1280 (2010)**(stating that, at step two,“[t]here is no requirement of ‘reasonable likelihood’”).” Sec’s Br. at 6-7.

 

TheCourt has determined that there is no need to resolve this conflict in thisinstance as it finds that under both tests, the gravity evaluations and thesignificant and substantial determination by the inspector were supported bythe substantial evidence provided by his testimony. Further, the inherentnature of underground mining and the attendant ubiquitous hazards thatenvironment involves supports this Court’s determination. 

 

[13] An odd defense,Respondent contends that “[t]he appreciable accumulations of water was [sic] confinedto the entrance to Level 2 at Crosscut No. 18. *Id.* at 17. There is nolimitation in the standard’s scope that excuses compliance to confined areas ofan escapeway.

[14] Penalties may bepaid electronically at Pay.Gov, a service of the U.S. Department of theTreasury, at https://www.pay.gov/public/form/start/67564508. Alternatively,send payment (check or money order) to: U.S. Department of Treasury, MineSafety and Health Administration, P.O. Box 790390, St. Louis, MO 63179-0390. 

Itis vital to include Docket and A.C. Numbers when remitting payments.