**FEDERAL MINE SAFETY AND HEALTH REVIEWCOMMISSION**

OFFICE OF ADMINISTRATIVELAW JUDGES

721 19th ST.SUITE 443

DENVER, CO 80202-2500

TELEPHONE:303-844-5266 / FAX: 303-844-5268

 

 
| SECRETARY OF LABOR,

MINE SAFETY AND HEALTH        

ADMINISTRATION (MSHA),

             Petitioner,

 

             v.

 

MORTON SALT INC,

              Respondent.                                             |   |   | CIVIL PENALTY PROCEEDING

 

Docket No. CENT 2022-0176

A.C. No. 16-00970-554937

 

 

 

Mine: Weeks Island Mine and  Mill |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------|

** **

**DECISION ANDORDER**

** **

 

Appearances:  Tyler Nash and Josh Bernstein, U.S. Departmentof Labor, Office of the Solicitor,

525 S. GriffinStreet, Suite 501, Dallas, TX 75202, for Petitioner

 

Donna Vetrano Pryor, HuschBlackwell LLP, 1801 Wewatta Street, Suite 1000, Denver, CO 80202, forRespondent 

 

Before:                        Judge Simonton 

 

**I.     ****INTRODUCTION**

 

This case is before me upon apetition for assessment of civil penalty filed by the Secretary of Labor,acting through the Mine Safety and Health Administration (MSHA), against MortonSalt Inc (“Morton Salt” or “Respondent”) pursuant to the Federal Mine Safetyand Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine Act”). This docketcontains 14 citations and orders issued to Morton Salt, seven of which weresettled before hearing. The parties presented testimony and evidence at ahearing held in Lafayette, Louisiana on January 24-25, 2023, and subsequentlysubmitted post-hearing briefs.[1]For the reasons discussed below, I affirm Citation No. 9649679 as written,affirm Citations Nos. 9649663 and 9649667 with modifications, and vacate the fourremaining citations and orders. I assess a total penalty of $12,161.00 for theseven citations and orders that were litigated. 

**II.  ****STIPULATIONS OF FACT**

** **

1.     Respondentis an operator within the meaning of the Mine Act.

2.     MortonSalt, Weeks Island Mine and Mill, Mine I.D. No. 16-00970, is subject to thejurisdiction of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801et seq.

3.     TheAdministrative Law Judge has jurisdiction in this matter.

4.     The totalproposed penalty of $40,786.00 for Docket No. CENT 2020-0176 will not affectRespondent’s ability to continue in business.

5.     Thecitations were properly served by a duly authorized representative of theSecretary upon an agent of Morton Salt, on the date and place stated therein,and may be admitted into evidence for the purpose of establishing its issuance,and not for the truthfulness or relevancy of any statements asserted therein.

6.     Respondentis engaged in mining activities, and its mining operations affect interstatecommerce.

7.     Theparties have settled Citations Nos. 9647379, 9647388, 9649660, 9649668,9649670, 9649672, and 9649680.

**III.****FINDINGS OF FACT AND CONCLUSIONS OF LAW**

 

Morton Salt operates the WeeksIsland Mine and Mill, a large underground salt mine located near Lafayette,Louisiana. Morton Salt miners descend over one thousand feet underground toaccess and extract salt from a subterranean rock formation known as a saltdome. Tr. 81. The Weeks Island mine is a “gassy” mine with a history of liberatingmethane from pockets of gas embedded within the salt dome. Tr. 81. MSHAcategorizes the Weeks Island mine as a Subcategory II-A mine due to itsdocumented history of methane outbursts. Tr. 198; *see* 30 C.F.R. § 57.22003.

 

In March of 2022, MSHA personnelarrived at the Weeks Island mine to conduct a quarterly safety and healthinspection pursuant to 30 U.S.C. § 813(a). The citations and orders discussedbelow were among the actions issued during this quarterly inspection. MortonSalt contested these citations and orders on June 9, 2022. 

 

**A.   ****Training(Orders Nos. 9649653, 9649654, and 9649655)**

 

Three of the actions at issue inthis case involve Morton Salt’s training practices. Specifically, these threeorders allege that Morton Salt failed to properly train its miners with regardto its Femco phone communication system. 

 

 

 

i.              Factual Background for Orders Nos. 9649653, 9649654, and 9649655

 

Femco phones are a basic means ofcommunication underground in the Weeks Island mine. They operate on a separatepower supply to ensure that they continue to function even if the mine’sprimary power supply fails. Ex. R-R1.[2]The phones may be used as a means of two-way communication or as an intercom. TheFemco phones at the Weeks Island mine also have orange or amber lightsinstalled above them. Mine management uses these lights and the Femco intercomfeature to warn miners in the case of an emergency. Tr. 119, 489. 

 

MSHA Inspector Brandon Olivierissued three orders on March 10, 2022, with regard to the Femco lights. InspectorOlivier testified that, on that date, he was conducting his inspection on the1500-foot level of the mine while accompanied by miner representative ClassieCharles and Morton Salt safety specialist Kellie Munger. He noticed an orangelight flashing above a Femco phone and asked three nearby miners—Larry Welch,Kennedy Tauriac, and Randy Jackson, Jr.—if they knew what the flashing lightsignified. Tr. 201-02. Welch and Tauriac said that they did not know. Jackson saidthat the light signified a dead battery. Tr. 204-05. 

 

Later, Inspector Olivier encounteredminers Kelly Huval and Doug Freeman and asked them if they knew the meaning ofthe flashing Femco light. At hearing, Huval testified that he had learned inhis new miner training that the flashing light could signify a methane ornon-methane emergency. Tr. 352, 363. Huval noticed the flashing light earlierin his shift and asked the more-experienced miner Jackson whether the light signaledan emergency. Jackson told him no, that someone on the previous shift hadrelayed that the flashing light simply indicated a dead battery. Huval tookJackson’s word for it and answered Inspector Olivier’s question by saying thatthe flashing Femco light signified a dead battery.[3]Tr. 225. Freeman told Inspector Olivier that he did not know the significanceof the flashing light. Tr. 225. 

 

Inspector Olivier then met withseveral experienced miners. Among the miners, Inspector Olivier determined thatWendell Brown, Bryson Ford, and Ryan Lovett did not know that a flashing lightsignified a mine emergency, even though all three miners had just receivedtraining the previous day. Tr. 230. Brown told Inspector Olivier that the flashinglight signified a dead battery after learning this from a veteran miner earlierin the day. Tr. 30, 230. Brown testified that in all previous evacuationdrills, there was always an audible alarm or audible direction to evacuate themine emanating from the Femco phone, repeated over and over again. Tr. 41. 

 

Inspector Olivier withdrew theseeight miners from the mine, and Morton Salt immediately began retraining theminers on the Femco system to terminate the order. Landon Olivier, mine safetytrainer, testified that he questioned the cited miners when they came to thesurface about the meaning of the light and “as a group, it was blurted out,‘Well, it depends. It’s methane, emergency, evacuation. It could mean a numberof things.’” Tr. 485. 

 

At hearing, Morton Salt offeredevidence of its training program. Landon Olivier testified that Morton Salttrains all of its miners regarding the Femco phones and their role in themine’s emergency protocol. He pointed to the mine’s safety handbook, which expresslyoutlines that the “evacuation alarm” consists of either a “loss of electricalpower in conjunction with flashing lights and an audible alarm from all Femcophones” or “[f]lashing lights and an audible alarm from all Femco phoneswithout a loss of electrical power.” Ex. R-A at 2; Tr. 481-82. Landon Olivierverbally reviews this portion of the handbook with all new miners andexperienced miners, and for refresher training. Tr. 481; *see* Ex. R-A (videoexhibit marked Morton 00050). Morton also presents a site-specific video forall miners that explains the Femco system and reviews the evacuation procedure:“In the event that it becomes necessary to evacuate the mine, there will be anemergency sounding of sirens and the flashing of amber lights. Upon hearing andseeing the signal or in the event of a power failure, everyone must evacuatethe mine immediately.” Ex. R-R1. 

 

Landon Olivier testified thatMorton Salt also provides hands-on training. Training officials have adisconnected Femco phone that is used to demonstrate how to use the undergroundcommunication system. Tr. 477. He said that Morton Salt provides “step-by-stephands-on training” in the field when giving mine tours to miners. Tr. 482. 

 

ii.             Fact of Violation (Order No. 9649653) 

 

Order No. 9649653 alleges aviolation of 30 C.F.R. § 48.8(b)(2), which requires in relevant part that anoperator’s “annual refresher training program for all miners shall include . .. instruction on . . . the use of the mine communication systems [and] warningsignals.” The order describes a violation of section 48.8(b)(2) as follows:

 

Three miners workingin the mine have not received adequate annual refresher training on thecommunication systems. The course shall include instruction on the proceduresand the use of the mine communication systems, and warning signals. Refreshertraining was last given to these miners in October 2021. The training that theminers received on the escape and evacuation plan was inadequate. The mineoperator was aware of the training requirements. The operator is hereby orderedto withdraw the 3 miners from the mine until they have received the requiredtraining. The Federal Mine Safety and Health Act of 1977 declares that anuntrained miner is a hazard to himself and to others.

 

Pet. for Assessment of Civ. Penalty at 19 (hereinafter“Pet.”). Inspector Olivier found that the operator’s inadequate refreshertraining regarding the Femco phones was reasonably likely to produce an injuryor illness that could be expected to be fatal. Pet. 19. He designated thisorder as significant and substantial (“S&S”) and moderate negligence. Pet.19. 

 

The Secretary acknowledges thatMorton Salt provided refresher training, and that the training involvedinformation on the Femco phones. This training is well documented. *See*Ex. R-A at 5-16. The Secretary argues, however, that the training wasinadequate because “it did not ensure Larry Welch, Kennedy Tauriac, and RandyJackson [Jr.] knew the flashing [F]emco lights signaled an evacuation.” Sec’yBr. at 15. 

 

The Secretary’s argument faltersfor two reasons. First, the Secretary’s finding of inadequate training restsentirely upon the inspector’s conversations with miners. According to InspectorOlivier, eight of the roughly thirteen miners that he polled failed to identifythat flashing Femco lights could signal an emergency. This method (an informalpolling of miners) is not an ironclad way to determine the adequacy of minertraining. As Judge Miller notes in a similar case, “there is not sufficientevidence for me to determine whether the miners initially received adequatetraining, but simply did not recall the training when asked” days or monthslater by the inspector. *Foothill Materials*, 35 FMSHRC 495, 499 (Feb.2013) (ALJ). A miner’s response may also be influenced by other factors, suchas his subjective feelings toward the inspector or toward MSHA in general. Forinstance, Huval testified that his response to Inspector Olivier was affectedby the inspector’s admonishment of Huval’s miner representative. Tr. 361-62. Answersgleaned from polling miners are “not dispositive” of training adequacy, *FoothillMaterials* at 498, and the Secretary has failed to adduce any furtherevidence or testimony to show that Morton Salt’s training was insufficient. 

 

Second, and more crucially, theSecretary has failed to show by a preponderance of the evidence that a flashingFemco light, by itself, signals an emergency. Testimony from experienced minersagrees with the mine’s written policy: a mine emergency is signaled by thecombination of flashing Femco lights and an audible alarm. Tr. 127, 147, 461,470, 489-90, 543; Ex. R-A at 23-24. A flashing Femco light by itself canindicate a dead battery—a fact that Inspector Olivier only learned afterissuing the three training orders. Tr. 281-82. The inspector admitted thatthere was no actual emergency on the date of inspection. Tr. 278. The orderswere therefore issued under a false understanding of the Femco lights and theirfunctionality. 

 

The Secretary argues that minersshould recognize the flashing lights, alone, as a signal of an emergencybecause the audible component of the Femco phones has previously failed at theWeeks Island mine. *See* Sec’y Br. at 20; *see also* Tr. 213-14(Inspector Olivier’s testimony about previous Femco phone failures). Thispoint, while well-taken, seems to find flaw more in the mine’s emergencyprotocol rather than its training protocol. The written procedure at the WeeksIsland mine is that an emergency is signaled by flashing lights with an audiblealarm, and the miners were trained on this procedure. *See* Ex. R-A (videoexhibit marked Morton 00050); Ex. R-A at 2.[4]If the Secretary finds this emergency procedure to be deficient, she can citeMorton Salt under the appropriate standard. *See, e.g*., 30 C.F.R. §§ 57.4360,57.11053.  But she cannot shoehorn a substantive critique of Morton Salt’semergency procedures into this alleged training violation. 

 

Ultimately, the Secretary bears theburden of proving this alleged training violation by a preponderance of theevidence. *See**RAG Cumberland Resource Corp.,*22 FMSHRC 1066, 1070(Sep. 2000).  The evidence before me shows that Morton Salt provided adequaterefresher training for the three miners in question. Morton Salt has adducedevidence of its training manual which details the Femco phone system and theemergency warning system. The company has also presented a video showing thetraining director discussing the emergency warning protocol in a trainingsession. Morton Salt’s training plan was submitted to, and approved by, MSHApursuant to 30 C.F.R. § 48.4. *See* Tr. 508; Ex. R-T. The Secretary has notintroduced enough evidence to prove that the training was in any wayinadequate. The Secretary has therefore failed to satisfy her burden of proof,and Order No. 9649653 is **VACATED**. 

 

iii.           Fact of Violation (Order No. 9649654) 

 

Order No. 9649654 alleges aviolation of 30 C.F.R. § 48.5(b)(3), which requires that mine operators providenew miners with training that “shall include instruction on . . . the use ofthe mine communication systems [and] warning signals.” The order describes aviolation as follows:

 

Two miners workingin the mine have not received adequate new miner training on the communicationsystems. The course shall include instruction on the procedures and the use ofthe mine communication systems, and warning signals. New Miner training waslast given to these miners in February 2022. The training that the minersreceived on the escape and evacuation plan was inadequate. The mine operatorwas aware of the training requirements. The operator is hereby ordered towithdraw the 2 miners from the mine until they have received the required training.The Federal Mine Safety and Health Act of 1977 declares that an untrained mineris a hazard to himself and to others. Entering and leaving the mine;transportation; communications.

 

Pet. 20. Inspector Olivier found a violation of thisstandard that was reasonably likely to cause a fatal injury, and he marked thealleged violation as S&S and moderate negligence. Morton Salt terminatedthe order one day after its issuance by providing “additional training on theFemco, Communication and lighting procedures.” Pet. 20. 

 

            The Secretary again admits that Morton Salt didprovide the relevant training. She alleges, however, that the training providedwas inadequate, “because it did not ensure Doug Freeman and Kelly Huvalunderstood that the flashing [F]emco light signaled an evacuation.” Sec’y Br.at 16. This argument fails for the same reasons outlined in the section above.[5]The claim of inadequate training rests exclusively on polling miners about theflashing Femco light, and the Secretary has not proven that a flashing Femcolight alone actually signals an emergency. In this case, the flashing lightsignaled a battery or wiring issue. Tr. 281. Meanwhile, the Respondent hasintroduced evidence that Freeman and Huval did receive new miner training onthe topics of mine communication systems and warning signs. *See* Ex. R-B.Further, Huval testified that he received training on the flashing Femco lightand knew that it was part of the emergency protocol, but that he did notcommunicate this information to the inspector for contextual reasons. *Seesupra*, Section III.A.ii. Aside from the inspector’s informal polling, theSecretary has submitted no further evidence showing that the training wasinadequate. The Secretary has failed to show by a preponderance of the evidencethat Morton Salt has violated section 48.5(b)(3). Accordingly, Order No.9649654 is **VACATED**. 

 

iv.           Fact of Violation (Order No. 9649655) 

 

Order No. 9649655 alleges aviolation of 30 C.F.R. § 48.6(b)(4), which requires an operator to providetraining for experienced miners that “shall include instruction in . . . theuse of the mine communication systems [and] warning signals.” The orderdescribes a violation as follows:

 

Three miners workingin the mine have not received adequate experienced miner training on thecommunication systems. The course shall include instruction on the proceduresand the use of the mine communication systems, and warning signals. Experiencedminer training was last given to these miners in March 2022. The training thatthe miners received on the escape and evacuation plan was inadequate. The mineoperator was aware of the training requirements. The operator is hereby orderedto withdraw the 3 miners from the mine until they have received the requiredtraining. The Federal Mine Safety and Health Act of 1977 declares that anuntrained miner is a hazard to himself and to others.

 

Pet. 21. Inspector Olivier determined that the violation ofthis standard was reasonably likely to produce an injury that could be expectedto be fatal. He marked the order as S&S and moderate negligence. MortonSalt terminated the order on the date of issuance by providing the three minerswith additional training. Pet. 21.

 

Once again, the Secretary admitsthat Morton Salt provided the relevant training but claims that the trainingwas inadequate because the miners polled did not know that a flashing Femcolight signaled an evacuation. Sec’y Br. at 16. And once again, I disagree.[6]The Respondent has introduced documentary and testimonial evidence showing thatthe three miners did receive training on mine communication systems and warningsignals. *See* Ex. R-C. Wendell Brown acknowledged at hearing that hereceived these trainings. Tr. 44-48. A miner’s remark that, “I think we couldhave gotten a little bit more training on it,” does not prove that the trainingwas inadequate. There is simply more evidence in the record supporting theadequacy of the training than showing its inadequacy. I find that the Secretaryhas again failed to establish a violation by the preponderance of the evidence.Order No. 9649655 is **VACATED**. 

 

**B.   ****VentilationDoors (Citation No. 9647382)**

 

On March 16, 2022, MSHA InspectorO’Neal Robertson issued Citation No. 9647382 alleging a violation of 30 C.F.R.§ 57.8531(c), which requires that “[v]entilation doors shall be . . .[m]aintained in good condition.” The citation describes a violation as follows:

 

The large door toaccess the #3 shaft station on the 1400’ level was found not fully constructedall the way to re-establish normal ventilation to the working places. The doorwhen closed allowed air to pass through the cracks. This condition exposesminers working in the mining areas to bad air or the lack of. Miners accessthis area as needed.

 

Pet. 16. Inspector Robertson designated the allegedviolation of this standard as non-S&S and moderate negligence. He foundthat the cited conduct was unlikely to cause an injury or illness that couldcause lost workdays or restricted duty. Pet. 16. 

 

i.              Factual Background 

 

Inspector Robertson issued thecitation after conducting an inspection on the 1400-foot level of the WeeksIsland mine. During the inspection, Inspector Robertson referenced the mine mapprovided by Morton Salt. Tr. 173. Morton Salt had last updated this mine map onDecember 20, 2021. *See* Ex. S-5 at 1. The map showed a door near the No.3 Production Shaft that was labelled “D/R.” Ex. S-5 at 1. The map’s legendindicated that “D” signified a “Door Airlock” and “R” signified a “Regulator.” Ex.S-5 at 1. These two different types of doors—an airlock and a regulator—performopposite functions. An airlock door is designed to completely seal a doorwaywhen closed, and a regulator door is designed to permit some airflow whendesired. Tr. 419. 

 

Inspector Robertson examined thedoor at this location and determined that, contrary to the mine map, the doornear the No. 3 Production Shaft was not an airlock door. Accordingly, he issuedCitation No. 9647382. Within two days of this citation’s issuance, Morton Saltterminated the action by issuing a new mine map that indicated this door on themap only as “D” and changed the legend to indicate that “D” represented a “Door.”Pet. 17; Ex. R-E at 2; Tr. 179-80. No physical modifications to the door wererequired to terminate the citation. Tr. 188. 

 

Eric Gaudreau, mine engineer,testified that the door in question was installed next to the No. 3 shaft,which is on the exhaust side of the mine. Morton Salt installed the door foruse as a regulator to control air flow through the area. Tr. 419. The door wasspecifically designed with extra slots to allow air to travel through. Tr. 421;*see also* Ex. S-3 at 1. Gaudreau testified that the door was in goodcondition at the time of inspection and that it has not been physically changedor modified after issuance of the citation. Tr. 422. Gaudreau admitted that thedoor was mislabeled as an airlock door on the map. Tr. 420. 

 

ii.             Fact of Violation 

 

The Secretary argues that the citedstandard “requires operators to maintain ventilation doors according to theirdesignation within a ventilation plan.” Sec’y Br. at 11. I disagree. Section57.8531 is entitled “Construction and maintenance of ventilation doors.” Thetext of the standard, excepted above, requires in full that:

 

Ventilation doorsshall be—(a) Substantially constructed; (b) Covered with fire-retardantmaterial, if constructed of wood; (c) Maintained in good condition; (d) Self-closing, if manually operated; and (e) Equipped with audible or visualwarning devices, if mechanically operated.

 

30 C.F.R. § 57.8531. Clearly, this standard governs thephysical construction and maintenance of mine ventilation doors. Nowhere doesthe standard reference a ventilation plan or require that the door’sconstruction match the plan’s designation. The standard is not ambiguous, andit therefore cannot accommodate the Secretary’s far-reaching interpretation.[7]

 

The Secretary has alleged aviolation of section 57.8531(c) but has failed to introduce any evidence thatthe door was maintained in poor condition. The door was simply mislabeled onthe mine map. This error has nothing to do with the maintenance of the door. TheSecretary has therefore failed to prove a violation under the cited standard. Accordingly,Citation No. 9647382 is **VACATED**. 

 

**C.   ****GroundConditions (Citation No. 9649663)**

 

On March 16, 2022, InspectorOlivier issued Citation No. 9649663, which alleges a violation of 30 C.F.R. §57.3200. The cited standard requires that, “[g]round conditions that create ahazard to personsshall be taken down or supported before other work ortravel is permitted in the affected area” and that, “[u]ntil corrective work iscompleted, the area shall be posted with a warning against entry and, when leftunattended, a barrier shall be installed to impede unauthorized entry.” 30C.F.R. § 57.3200. The citation described the violation of the standard asfollows: 

 

There was looseground found along the north rib behind the [E]lectrical equipment in 11C. Thearea had caution tape up with 2 tags identifying the scales. One tag was datedJanuary 2021 and the other dated June 2021. It is evident from the footprintsin the area that the miners were still traveling around the caution tape intothe hazardous area. This condition exposes miners to serious injuries if thescales were to fall while the miners are in the area. Standard 57.3200 wascited 52 times in two years at mine 1600970 (52 to the operator, 0 to acontractor).

 

Pet. 23. Inspector Olivier found that the cited conduct wasreasonably likely to produce an injury that could reasonably expected to befatal. He marked it as S&S and high negligence. 

 

i.              Factual Background

 

The area in question is adjacent tothe MCC, which is a control room containing the breakers and power controls forthe equipment in the screen plant. Tr. 87. Two miners staff the MCC buildingduring each shift. Tr. 87. The MCC is accessed via the mine roadway. Tr. 165. Justdown the road, the mine had constructed a berm to protect against a steepdrop-off. Tr. 139. Between the berm and the MCC sat a freestanding transformerbox and a wooden storage box. Tr. 139, 245. 

 

Inspector Olivier testified that heobserved “loose ground”[8]on the wall behind the transformer and the wooden storage box. Tr. 239. Hedocumented a 20’x20’ slab of salt that had separated from the wall. Tr. 243, 309;Ex. S-10. At least two sides of the slab were “not intact.” Tr. 309. InspectorOlivier testified that, in general, scale needs to be taken down when it isbroken or cracked on more than one side because the cracking could impact itsstability. Tr. 241. According to Inspector Olivier, certain conditions such asthe looseness of the material might contribute to a scale falling, but suchevents are often unpredictable. Tr. 241.

 

Inspector Olivier also testifiedthat the area near this scale was not fully barricaded and had been recentlyaccessed by miners. About “half” of the area between the berm and the MCC wastaped off, according to Inspector Olivier. Tr. 239. The other half remainedunbarricaded. Tr. 239. During his inspection, Inspector Olivier encounteredfootprints leading from the roadway to the area behind the MCC, near a tableand storage box. Tr. 244.  He also documented evidence showing that a miner hadrecently urinated in the area near the storage box. Tr. 249; Ex. S-12. InspectorOlivier testified that the urine mark was “pretty much right under where thescales was located.” Tr. 249-50. He opined that if the scale had fallen, thearea marked by footprints and urine would have been within the “zone of danger”presented by the ground conditions. Tr. 252. Further, he testified that thetransformer box was roughly 15 feet from the edge of the scale and also fellwithin the zone of danger. Tr. 252. 

 

Lee Franks, the mine’s safetysupervisor, testified that the area had been barricaded due to the presence of scaledating back to January 2021. Tr. 95-96. Franks identified two separate “substantialscales” in the area. Tr. 95. Franks described the scale closer to the MCCbuilding as a “substantial bulge” with a “crack on one side of the scale.” Tr.96. He said “[t]here was no crack on top of the other side” of this firstscale. Tr. 96. The second scale was located closer to the berm. Tr. 95. 

 

According to Franks, Morton Saltidentified the “potential scales” at least fourteen months before the citationwas written. Tr. 96. Morton Salt did not descale the area immediately due tothe presence of the transformer. The company’s electricians did not typicallywork on this transformer, and so Morton Salt needed to hire outside contractorsto move the transformer before the descaling work could be done. Tr. 96. Frankstestified that during the COVID-19 pandemic, it became very difficult to get anoutside contractor to perform the necessary work. So, Franks testified, MortonSalt decided to close off the area until the contract work could be procured. Tr.96-101. Morton Salt used “red danger tape” to effectuate the closure and hung atag indicating the “actual hazard” in the area. Tr. 101, 158. The tape ran fromthe berm area to a small table between the berm and the MCC. Tr. 160; ex. R-R2.Franks testified that roughly 8 to 10 feet of area remained unbarricadedbecause it was “easiest” to secure the end of the tape to the table. Tr. 159-160.

 

Franks accompanied InspectorOlivier as he inspected the scales. Tr. 86. He witnessed the footprints and theurine mark documented during the inspection. Tr. 109, 137. Franks testifiedthat the urine mark was approximately 40-45 feet from the scale closest to theberm and 25 feet from the scale closest to the MCC. Tr. 140-41. He alsotestified that no miner should need to access the transformer or anything elsein the area unless there was a major electrical issue with the “whole minepower,” because “any electrical work they would have done to get anything inthe screen plant running again would have been done in the MCC.” Tr. 146. 

 

            Franks also described the subsequent descalingefforts in the area. In order to terminate Citation No. 9649663, Morton Saltremoved the transformer from the area so that the scales could be addressed. Tr.144. Franks testified that the scale closest to the MCC was “bar tight,”meaning that no material was loosened from the wall when he tried to pry it offwith a 6-foot or 12-foot scaling bar. Tr. 143; *see also* Tr. 133. Franksand his team had to scrape the material off with a mechanical scaler. Tr. 145. Accordingto Franks, descaling resulted in about “two, two and a half buckets” of saltbeing loosened from the wall. Tr. 144.

 

ii.             Fact of Violation

 

            In order to prove a ground control violation,the Secretary must prove by a preponderance of the evidence (1) that a groundcontrol hazard existed and (2) that the operator failed to address the hazardby taking it down, supporting it, or posting it against entry and barricadingit while unattended. *See* 30 C.F.R. §57.3200. I find that the Secretaryhas successfully made such a showing here. 

 

            First, I find that the Secretary has shown theexistence of a hazard. Inspector Olivier testified that he encountered a20’x20’ slab of scale that was separating from the wall on at least two sides.[9]Tr. 243, 309; Ex. S-10. This is supported by photographic evidence. Ex. S-13. InInspector Olivier’s professional opinion, scale that is separating or crackedon more than one side presents a hazard and should be removed. Tr. 241. InspectorOlivier further testified that blasting, which takes place three to five timesa week, could shake rock loose and thus contribute to the hazard. Tr. 241-42. InspectorOlivier has conducted over 500 inspections, including over 50 at the WeeksIsland mine, during his 13 years as an inspector with MSHA. Tr. 195-97. Beforejoining MSHA, he worked in production at another underground salt mine. Tr.195. An experienced MSHA inspector’s opinion that a hazard exists is entitledto substantial weight. *Buck Creek Coal Inc. v. MSHA*, 52 F.3d 133, 135(7th Cir. 1999); *Harland Cumberland Coal Co.*, 20 FMSHRC 1275, 1278-79(Dec. 1998). Accordingly, I credit Inspector Olivier’s testimony. 

 

Morton Salt argues that no hazardexisted because there was no loose rock, as evidenced by Lee Franks’ testimonythat the scale was “bar tight.” Resp. Br. at 43. While I find Franks’ testimonyto be largely credible, I do not believe an operator’s plain statement that thematerial was “bar tight” can defeat the inspector’s hazard determination. Franksadmitted that “there [were] two scales that[] I would consider substantialscales.” Tr. 95. Morton Salt’s own training materials recognize that the “inabilityto predict when they may fall makes scales one of the most serious hazards inmining.” Ex. S-41 at 7. This comports with Inspector Olivier’s testimonyregarding the unpredictability of scales in a salt mine. Tr. 241. Given thepresence of scales and the unpredictable nature of salt scales, it is possiblefor a hazard to exist even when the operator alleges the scale was “bar tight.”

 

The inspector relied on objectiveindicators of looseness (the number of cracked sides) and documented the hazardto the extent possible. In my analysis, I have considered the “visiblefractures” and the “operating experience of the mine” to determine whether theground conditions are hazardous. *Asarco, Inc.*, 14 FMSHRC 941, 952 (June1992). This mine has been cited 52 times in two years for hazardous groundconditions, and the scale here was fractured in two places which, in theinspector’s experience, was unsafe. I therefore find that the ground conditionswere indeed hazardous. 

 

Second, I find that Morton Salt failedto install a sufficient barrier to impede unauthorized entry to the hazardousarea. It is undisputed that Morton Salt failed to barricade at least 8-10 feetof the area and that miners were traveling in the area. A miner could (and atleast one miner did) freely walk into the section of the mine that featuredhazardous ground conditions. Therefore, the second prong of the test has beenmet. Citation No. 9649663 is **AFFIRMED** as modified below. 

 

iii.           Gravity and S&S

 

Inspector Olivier determined thatthe mine’s failure to barricade the hazardous condition was reasonably likelyto cause an injury, and that the injury could be expected to be fatal. Hemarked the citation as S&S. 

 

I affirm the finding that theexpected injury would be fatal. Inspector Olivier testified that the scale wascomprised of a 20’x20’ slab of rock. Lee Franks testified that two and a halfbuckets worth of material fell when the area was descaled. Miners had beentraveling in the zone of danger in the event that the scale fell, according toInspector Olivier. If multiple buckets of salt fell on an individual, the anticipatedinjury is reasonably categorized as fatal. 

 

However, I disclaim the inspector’slikelihood finding. There are too many factors showing the remoteness of thepossible injury. Miners did not regularly access the area for their work. Tr. 146.Some of the area was barricaded, making miner ingress less likely. Tr. 100. Althoughat least one miner chose to relieve himself in this area, there was a portabletoilet nearby that could have been used instead. Tr. 146, 165. According toFranks’ testimony, the scaled salt needed to be loosened by a mechanicalscaler. Tr. 144. In view of all of this evidence, I find that a fatal or evenserious injury was unlikely.

 

In order to establish that aviolation of a mandatory safety standard is S&S, the Secretary of Labormust prove: (1) the underlying violation of a mandatory safety standard; (2)the violation was reasonably likely to cause the occurrence of the discretesafety hazard against which the standard is directed; (3) the occurrence ofthat hazard would be reasonably likely to cause an injury; and (4) there wouldbe a reasonable likelihood that the injury in question would be of a reasonablyserious nature. *Peabody Midwest Mining, LLC*, 42 FMSHRC 379, 383 (June2020). The Commission has explained that “the proper focus of the second stepof the [S&S] test [is] the likelihood of the occurrence of the hazard thecited standard is designed to prevent.” *Newtown Energy, Inc*., 38 FMSHRC2033, 2037 n.8 (Aug. 2016). 

 

The Secretary has established aviolation and therefore satisfies step 1. But the Secretary has failed tosatisfy step 2 because she has not shown that the occurrence of a loose-groundhazard is reasonably likely. The danger to miners presented by the scales remainedrelatively remote given the facts discussed above. Accordingly, theground-control violation was not S&S. 

 

iv.           Negligence

 

Under the Mine Act, operators areheld to a high standard of care and must “be on the alert for conditions andpractices in the mine that affect the safety or health of miners and to takesteps necessary to correct or prevent hazardous conditions or practices.” 30C.F.R. § 100.3(d). The Commission and its judges determine whether an operatorhas met its duty of care using a traditional negligence analysis, consideringthe “totality of the circumstances holistically,” including “what actions wouldhave been taken under the same circumstances by a reasonably prudent personfamiliar with the mining industry, the relevant facts, and the protectivepurpose of the regulation.” *Brody Mining, LLC*, 37 FMSHRC 1687, 1702(Aug. 2015). 

 

Inspector Olivier determined thatthis violation was due to Morton Salt’s high negligence because “the scale wasidentified two times over [one] year [and] the company did not take any stepsor measures to eliminate people from entering this area.” Tr. 257.

 

The mine operator clearly recognizeda possible hazard in the area. It erected partial barricades over a year beforethe citation was issued. However, Morton Salt never completed the barricadeduring the fourteen months of its existence, due to the inconvenience ofextending the tape a few more yards. Tr. 160. I find that Morton Salt was awareof the hazard, and that its reasons for not adequately barricading the hazardare weak and unavailing. I affirm the inspector’s finding of high negligence. 

 

**D.   ****EvacuationPlan (Citation No. 9649667)**

 

On March 17, 2022, InspectorOlivier issued Citation No. 9649667 alleging a violation of 30 C.F.R. §57.11053(c). The cited standard requires that a mine operator maintain “anescape plan for each working area in the mine [that] include[s] instructionsshowing how each working area should be evacuated” and mandates that “[e]achsuch plan shall be posted at appropriate shaft stations and elsewhere inworking areas where persons congregate.” 30 C.F.R. § 57.11053(c). The citationdescribes a violation as follows:

 

The posted escapeand evacuation plan is not accurate. The primary and secondary routes for the1200’ level is not accessible. Miners are still accessing the crusher area andthe road to ladder is berm[ed] and #3 shaft is not accessible for escape.Miners do not have an escape route pass #4 shaft. This condition exposes minersto serious injuries if they have to escape in an emergency. Standard57.11053(c) was cited 1 time in two years at mine 1600970 (1 to the operator, 0to a contractor).

 

Pet. 24. Inspector Olivier determined that the cited conductwas reasonably likely to cause an injury, and that the resultant injury couldbe expected to be fatal. He found that the operator was highly negligent andthat the violation was S&S. 

 

i.              Factual Background 

 

Inspector Olivier performed aninspection of the 1200-foot level of the Weeks Island mine on March 17. Productionhad ceased on this level of the mine years before the date of the inspection,according to Inspector Olivier. Tr. 269. He nevertheless inspected this levelbecause it was still utilized for escape purposes and accessed by miners on aregular basis. Tr. 265. Inspector Olivier testified that miners accessed the1200-foot level “weekly” or “at least three times a month” in order to conductmethane readings, to control ventilation for the 1000-foot level, and toinspect escape routes. Tr. 265. 

 

Inspector Olivier reviewed themine’s posted evacuation plan step-by-step and discovered that portions of thedesignated escapeways were “not travelable.” Tr. 259. Inspector Olivier readthe written plan for the primary escape route, which directed miners located atthe stockpile/crusher area to “proceed up the ramp along No. 6 Belt to thecrusher, turn left and continue along No. 2 and No. 1 Belts to the No. 3exhaust shaft.” Ex. S-17 at 2. His inspection revealed that the ramp was closedand that an escaping miner would not be able to proceed up the ramp and turnleft as instructed. Tr. 263. Inspector Olivier also read the written plan forthe secondary escape route, which instructed miners to “proceed to the ladderopposite the stockpile.” Ex. S-17 at 2. His inspection revealed the presence ofa berm that prevented access to the ladder. Tr. 261. Inspector Olivier did notfind fault with escape maps posted by Morton Salt, only the writteninstructions. Tr. 312. 

 

Lee Franks, mine safety supervisor,accompanied Inspector Olivier during his inspection and agreed that the writtenevacuation instructions were incorrect. Tr. 116. Franks testified that a bermprevented access to the ladder indicated on the secondary escapeway. Tr. 115. Hesaid that miners “wouldn’t normally be on the 1200-foot level” since there was“no running equipment in that area anymore” since the stockpile fell out of usein 2019. Tr. 118-19. Franks admitted the level may be accessed by electriciansor mechanics performing maintenance or by supervisors performing roads andgrounds inspections. Tr. 118. 

 

Franks testified that the mapattached to the evacuation plan was accurate. Tr. 152. He did not expect minersto read the 18-page written plan in an emergency. Tr. 154. Miners receivehands-on mine evacuation training where management physically drives themthrough the mine and shows the miners the proper escape routes. Tr. 150. Frankscalled this the “best” way for miners to learn the escape routes because “a lotof people remember things they do more than [what] they read.” Tr. 150. Franksidentified at least three other ways for miners to exit the 1200-foot levelduring an emergency and said that miners would “know where to go” during anevacuation. Tr. 154-55. 

 

Eric Gaudreau, mine engineer, alsoagreed that the “wording was incorrect” on the written escape plan in March2022. Tr. 427. Gaudreau explained, however, that there were at least threeviable escapeways from the mine at the time the citation was issued. Theprimary route would be to access the No. 4 shaft on the 1200-foot level, whichis in fresh intake air. Tr. 429. The secondary route would be to descend to the1500-foot level to evacuate out of the No. 3 exhaust shaft. Tr. 429. (Both ofthese options were listed on the post-citation evacuation plan. Tr. 429). Athird route would be to ascend to the 1000-foot level and access the No. 4shaft from there. Tr. 430.  Gaudreau testified that few miners accessed the1200-foot level aside from him, who would perform inspections or pass throughthe level to access the 1000-foot level. Tr. 437. 

 

Gaudreau testified that he beganhis position as mine engineer in 2020, and that it would have been the previousmine engineer’s job to update the plan after the stockpile was closed in 2019. Tr.438. He explained that he would only make changes to the plans upon a change inmining operations, and said that he “would not look at” the wording for the1200-foot level since there was no active production on that level. Tr. 443. Gaudreautestified that he “had not seen” the evacuation plan for the 1200-foot level atthe time the citation was written. Tr. 444.

 

ii.             Fact of Violation

Morton Salt does not dispute thefact of violation in its brief. Its witnesses admitted at hearing that the mineescape plan did not give miners accurate “instructions showing how each workingarea should be evacuated,” as required by 30 C.F.R. § 57.11053(c). TheSecretary has therefore proven a violation of the cited standard, and CitationNo. 9649667 is **AFFIRMED** as modified below. 

 

iii.           Gravity and S&S

 

Inspector Olivier found that thecited conduct was reasonably likely to cause an injury that could be expectedto be fatal, and that the violation was S&S. I affirm his finding regardinga fatal injury. An inexperienced miner on the 1200-foot level would be requiredto rely on the evacuation plan if an emergency occurred. The time wastedfollowing incorrect directions could be the difference between life anddeath—especially because no correct escape route was laid out in the document. 

 

However, such an injury is notlikely. The witnesses agreed that miners rarely accessed the 1200-foot level. Sincethere was no ongoing work there, the visits to the level would have beeninfrequent and short. It is therefore unlikely that a miner—let alone aninexperienced miner that lacked sophisticated knowledge of mine exits—would becaught on the 1200-foot level during an emergency. 

 

When determining whether aviolation of an emergency standard is S&S, a judge must assume theexistence of an emergency. *See**Cumberland Coal Res*., LP, 33FMSHRC 2357, 2367 (Oct. 2011), *aff'd* 717 F.3d 1020 (D.C. Cir. 2013); *SavageZinc, Inc.*, 17 FMSHRC 279, 290 (Feb. 1995) (in the context ofmetal/nonmetal mines). But this violation cannot be S&S because, evenassuming the emergency, it is unlikely that a hazard would occur. Miners wererarely on this level. Alternate escapeways existed and were known byexperienced miners, they were simply not described adequately on the evacuationplan. Tr. 117, 429. It is unlikely that a novice miner would find himself onthe 1200-foot level during an emergency and would have to rely upon the 18-pagewritten escape plan for guidance. Therefore, the Secretary has failed to provestep 2 of the S&S standard. 

 

iv.           Negligence

 

Inspector Olivier found that MortonSalt was highly negligent for its faulty escape plan. I affirm the finding ofhigh negligence. Franks and Gaudreau both admit that the escape plan was notupdated after the stockpile on the 1200-foot level was decommissioned in themiddle of 2019. Tr. 115, 427. The error in the plan therefore persisted fornearly three years. Gaudreau, the mine engineer, testified that he had not evenseen the evacuation plan before Morton Salt was cited for it. Tr. 444. This isa massive and unjustifiable oversight. MSHA mandates that operators inspecttheir escape routes on a regular basis, *see* 30 C.F.R. § 57.11051, and MortonSalt therefore should have caught its error much earlier than it did. I findthat the company was highly negligent for allowing this error to persist foryears. 

 

**E.   ****MaterialsStorage (Citation No. 9649679)**

 

Inspector Olivier issued CitationNo. 9649679 alleging a violation of 30 C.F.R. § 57.16001, which mandates that“[s]upplies shall not be stacked or stored in a manner which creates trippingor fall-of-material hazards.” The citation describes the violation as follows: 

 

There were severalboxes of filters stacked on the overhead bin in the storeroom that were aboutto fall down. The boxes were approximately 10ft high and had already slid tothe edge of the bin where miners travel daily. The boxes were stored here abouta week ago. This condition exposes the miners to injuries if the filters wereto fall on miners while traveling in the area. Standard 57.16001 was cited 1time in two years at mine 1600970 (1 to the operator, 0 to a contractor).

 

Pet. 32. Inspector Olivier alleged that this conduct wasreasonably likely to injure a miner and cause lost workdays or restricted duty.He designated the citation as moderate negligence and S&S. Morton Saltterminated the citation on the date of issuance by restacking the filters andeliminating the fall hazard. Pet 32. 

 

i.              Factual Background 

 

On March 23, 2023, InspectorOlivier conducted his inspection of the mine’s surface supply room, which is alarge warehouse-type room typically staffed by an attendant and a supervisor. Tr.61-62. During the inspection, Inspector Olivier noticed that several metalcanister filters were haphazardly stacked atop a supply shelf. Tr. 271-272; Ex.S-24. Inspector Olivier photographed the condition. *See* Ex. S-24. Hetestified that, subsequently, a Morton Salt representative called the supplyroom attendant over to re-stack the boxes and that as “soon as [the attendant]put his hand on a box, the box fell right where we had just passed.” Tr. 271. InspectorOlivier testified that he saw “several people” come through the supply roomduring his inspection. Tr. 272. He said that storeroom attendants wouldsometimes walk with the miners through the aisles of the storeroom to locatethe parts they were seeking. Tr. 272. 

 

Tommy Viator, general foreman ofsurface maintenance, accompanied Inspector Olivier during his inspection of thesupply room. Viator testified that he and Inspector Olivier walked past the stackedmetal canister filters without noticing them, and that Inspector Olivier onlycaught sight of the filters as the two men were talking near the exit of thesupply room. Tr. 393. Viator testified that he measured the height of theshelf, 8 feet, and the weight of each filter, 9.5 pounds, after the citationwas issued. Tr. 392. On cross examination, Viator admitted that the stackedboxes rose higher than 8 feet since they were stacked on top of each other. Tr.413. But Viator opined that the filter box would not have fallen if thestoreroom attendant had not nudged it. Tr. 393-394. In his 15 years ofoverseeing the supply room, Viator has had no knowledge of another box fallingfrom a shelf. Tr. 397. 

 

Viator also provided testimonyabout who may access the storeroom.  He said that a total of three people workedin the supply room at any given time. Tr. 394. According to Viator, the supplyroom requires badge access and that “the only people authorized are thestoreroom attendant and managers.” Tr. 395. If someone without badge accessneeds to come in, a storeroom attendant will escort the individual through thesupply room. Tr. 395. All employees are required to wear hardhats, steel-toeboots, and safety glasses in the supply room. Tr. 395. Viator also testified tothe training provided to miners regarding housekeeping matters and thediscipline administered for violations of the company’s housekeeping policies. Tr.397-402.

 

Beau Landry, surface miner andunion representative, also accompanied Inspector Olivier during his supply roominspection. Landry testified that he witnessed the metal canister filtersstacked on the top shelf in the supply room as indicated in the photographtaken by the inspector. *See* Ex. S-24. Landry witnessed the storeroomattendant inadvertently knock a box down when rearranging the stacked filters. Tr.65. He testified that the shelf was roughly 8 feet tall. Tr. 72-73.

 

Landry testified that the storeroomattendants would sometimes walk with the miners and together find the partsneeded on the shelves. Tr. 62. In his experience, miners on Landry’s teamtypically needed to visit the supply room once daily. Tr. 60. According toLandry, the shelf in question abutted a passageway that is typically traveledby miners who enter the supply room. Tr. 73.

 

ii.             Fact of Violation 

 

Morton Salt does not dispute thefact of violation in its brief. The testimony and photographic evidence in thiscase indicates that the stacked filters caused a fall-of-material hazard. Accordingly,the Secretary has proven a violation of 30 C.F.R. § 57.16001, and Citation No.9649679 is **AFFIRMED**. 

 

 

 

 

iii.           Gravity and S&S

 

Inspector Olivier found that thisviolation was reasonably likely to cause an injury that could be expected tocause lost workdays or restricted duty. I affirm the inspector’s findings. Thephotographic evidence clearly demonstrates a fall risk. Ex. S-24. One of thefilters did in fact fall when touched by the storeroom attendant. Tr. 271. Further,based on that photograph, it is not hard to imagine three or four of thesefilters falling. If a nearby miner or equipment accidentally nudged the shelf,the filters could cascade onto the miner and—while each individual filter onlyweighs 9.5 pounds, Tr. 392—the collective impact could be thirty or fortypounds falling from 8-10 feet. The impact from one or several filters falling evenwith the use of a hard hat and steel toed boots could cause injury to a miner’sshoulders, back, head, arms, or legs. See Tr. 275. It could further cause atrip hazard. Tr. 275. Given that storeroom staff regularly walk down theseaisles and other miners sometimes accompany them, I find these risks reasonablylikely, and the anticipated injury could certainly cause lost workdays. 

 

I also affirm the inspector’s S&Sfinding. First, I have affirmed a violation of section 57.16001. Second, theviolation was reasonably likely to cause a fall of material, the hazard againstwhich the regulation is directed. *See* 30 C.F.R. § 57.16001 (“Suppliesshall not be stacked or stored in a manner which creates *tripping or**fall-of-materialhazards*.”) Third, falling metal canister boxes are reasonably likely tocause an injury to miners’ shoulders, backs, heads, arms, or legs especiallygiven the location and frequency of miners passing below. And finally, there isa reasonable likelihood that the injury would be serious, given the fact that multipleboxes of filters may fall. The Secretary has therefore satisfied all elementsof the *Peabody Midwest* standard and has proven that the violation isS&S. *See* 42 FMSHRC at 38.

 

iv.           Negligence

 

Further, I find that Morton Saltwas moderately negligent for allowing this condition to persist. The hazard wasobvious, as shown in the photograph, and it was located at the end of an aisleand visible from at least two directions. It should have been addressed beforethe inspection. However, the supply room itself was otherwise in goodcondition, and Inspector Olivier had not encountered issues there previously. Additionally,maintenance supervisor Viator credibly testified as to the training anddisciplinary policies on housekeeping, further mitigating the negligence. Moderatenegligence is appropriate. 

 

**IV.****PENALTY**

 

Commissionjudges assess de novo civil penalties for violations of the Mine Act. *SellersburgStone Co.*, 5 FMSHRC 287, 291 (Mar. 1983). The Act requires that judgesconsider six statutory criteria when assessing a penalty:

(1) the operator’s history of previousviolations, (2) the appropriateness of such penalty to the size of the businessof the operator charged, (3) whether the operator was negligent, (4) the effecton the operator’s ability to continue in business, (5) the gravity of theviolation, and (6) the demonstrated good faith of the person charged inattempting to achieve rapid compliance after notification of a violation.

30 U.S.C. § 820(i).

** **

****For Citation No.9649663, the Secretary proposed a regularly assessed penalty of $17,565.00. Pet.7. Morton Salt has an extensive history of ground control violations, including52 violations of this standard in the past two years. Morton Salt stipulatesthat the total proposed penalty of $40,786.00 will not affect its ability tocontinue in business. Jt. Stip. ¶ 4. This non-S&S violation of section57.3200 was unlikely to cause fatal injury, but it was avoidable and was causedby Morton Salt’s high negligence. Morton Salt did correct the violation in areasonable amount of time after the citation was issued. Based on thesefactors, I assess a penalty of $9,500.00. 

 

For Citation No.9649667, the Secretary proposed a regularly assessed penalty of $7,285.00. Pet.7. This standard has only been cited once in the previous two years. Thepenalty will not affect Morton Salt’s ability to continue in business. Jt.Stip. ¶ 4. This is another non-S&S violation that was unlikely to causefatal injury, but again was avoidable and caused by Morton Salt’s highnegligence. Morton Salt did swiftly correct the violation. Based on all ofthese factors, I assess a penalty of $2,000.00. 

 

            For Citation No. 9649679, theSecretary proposed an assessment of $661.00. Pet. 7. Morton Salt had no otherhousekeeping violations cited in the two years before this citation. This is anS&S violation that was reasonably likely to cause lost workdays, and it wascaused by Morton Salt’s moderate negligence. The assessed penalty would notaffect the company’s ability to stay in business. Jt. Stip. ¶ 4. I thereforeassess a penalty of $661.00.  

 

**V.   ****PARTIAL SETTLEMENT**

The partieshave filed a motion to approve partial settlement regarding the seven settledcitations. The originally assessed amount for these seven actions was $6,283.00and the settlement amount is $2,888.00. The settlement includes:

| 9647379   | $1,593.00     | $1,593.00     | Affirm as Issued                                                                                                                                                                          |
|-----------|---------------|---------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| 9647388   | $133.00       | $0.00         | Vacate                                                                                                                                                                                    |
| 9649660   | $1,188.00     | $0.00         | Vacate                                                                                                                                                                                    |
| 9649668   | $133.00       | $133.00       | Affirm as Issued                                                                                                                                                                          |
| 9649670   | $909.00       | $909.00       | Affirm as Issued                                                                                                                                                                          |
| 9649672   | $2,194.00     | $120.00       | Modify gravity from “Reasonably Likely” to “Unlikely,”  modify negligence from “High” to “Moderate,” and modify Significant and  Substantial from “Yes” to “No”                         |
| 9649680   | $133.00       | $133.00       | Affirm as Issued                                                                                                                                                                          |
| **TOTAL** | **$6,283.00** | **$2,888.00** |                                                                                                                                                                                      |

 

The partieshave submitted facts in support of the proposed changes. I have considered therepresentations and documentation submitted and I conclude that the proposedsettlement is appropriate under the criteria set forth in section 110(i) of theAct. The motion to approve partial settlement is **GRANTED**, the citationscontained in this docket are **MODIFIED** as set forth above. 

**VI.****ORDER**

 

It is hereby **ORDERED** thatCitation No. 9649663 is **AFFIRMED**, as modified to reduce the likelihoodof injury or illness to “Unlikely” and to remove the S&S designation; thatCitation No. 9649667 is **AFFIRMED**, as modified to reduce the likelihoodof injury or illness to “Unlikely” and to remove the S&S designation; thatCitation No. 9649679 is **AFFIRMED** as issued; and that Orders Nos.9649653, 9649654, and 9649655 and Citation No. 9647382 are **VACATED**. Respondentis **ORDERED** to pay the Secretary $12,161.00 within 40 days of this order.

 

The Secretary’s motion to approvepartial settlement is **GRANTED**. It is further **ORDERED** that theRespondent pay an additional $2,888.00 within 40 days of this order. A grandtotal of $15,049.00 is due to the Secretary. 

 

 

 

 

/s/David P. Simonton

David P. Simonton

Administrative Law Judge

 

 

Distribution: (Electronic and Certified Mail)

 

Tyler Nash, U.S. Department of Labor, Office of theSolicitor, 525 S. Griffin Street, Suite 501, Dallas, TX 75202, nash.william.t@dol.gov

 

Josh Bernstein, U.S. Department of Labor, Office of theSolicitor, 525 S. Griffin Street, Suite 501, Dallas, TX 75202, bernstein.josh@dol.gov

 

Donna Vetrano Pryor, Husch Blackwell LLP, 1801 WewattaStreet, Suite 1000, Denver, CO 80202, donna.pryor@huschblackwell.com

 

----

[1] In this decision,the joint stipulations, transcript, Secretary’s exhibits, Respondent’s exhibits,Secretary’s post-hearing brief, and the Respondent’s post-hearing brief areabbreviated as “Jt. Stip.,” “Tr.,” “Ex. S–#,” “Ex. R–#,” “Sec’y Br.,” and“Resp. Br.,” respectively. Respondent’s rebuttal exhibits are abbreviated as“Ex. R-R#”.

[2]Ex R-R1 denotes arebuttal exhibit.

[3] Huval alsotestified that after Inspector Olivier told him that the light did not signifya dead battery, Huval was about to tell him it could signify an emergency whenhis miner’s representative jumped in and said that the light signified methane.Inspector Olivier quickly told the representative, “No, you can’t tell him.” Huvalfelt nervous after that and did not offer any further comments. Tr. 361-62. 

[4] Aprinted version of Respondent’s safety handbook is in the record referenced asEx. R-O.

[5] The facts,analysis, and findings discussed *supra* in sections III.A.i and III.A.iiare incorporated by reference here.

[6]The facts,analysis, and findings discussed *supra* in sections III.A.i, III.A.ii,and III.A.iii are incorporated by reference here.

[7] To the extentthat the Secretary seeks deference for her interpretation of this standard, Ifind that it is not warranted. The text of the standard is not “genuinelyambiguous” and therefore does not merit deference. *See Kisor v. Wilkie*, 139S.Ct. 2400, 2415 (2019). 

[8] The courtreporter erroneously transcribed this phrase as “lose ground.” Tr. 239.

[9] Franks testifiedthat the scale was only cracked on one side. Tr. 96. The photographic evidencetends to support the inspector’s contention that the scale was separating fromthe wall on at least two sides. Ex. S-13. I credit the inspector’s testimony onthis point.