Secretary of Labor v. Superior Silica Sands, LLC

Plain-English summary

A newly hired electrician with no railcar experience was fatally injured after two uncoupled railcars began rolling and he attempted to set a handbrake on a moving car. Judge Margaret Miller found that Superior Silica Sands had not adequately trained him on railcar hazards, braking, communication, supervised practice, or the instruction to let a runaway car go. She also found that management failed to set or verify the brakes on the two parked cars before uncoupling them; both violations were S&S, high negligence, and unwarrantable failures. A third order involved a railcar whose brakes had remained damaged since an earlier derailment while the car stayed coupled within the active string; that violation was S&S and high negligence, but the judge removed the unwarrantable-failure designation because the evidence showed some attempted precautions and no prior notice that greater efforts were required. The judge assessed $18,846 for inadequate task training, $20,940 for failing to secure the parked cars, and $5,000 for the defective-brake railcar, totaling $44,786.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 46.7(a), 56.14217, and 56.14102
• Outcome: All three violations were affirmed; the defective-brake order was modified to remove unwarrantable failure, and total penalties were set at $44,786.
• Key point: Railcar task training must cover the full safe-work process and emergency response, and parked or defective railcars must be physically secured or removed from service.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

721 19TH STREET, SUITE
443

DENVER, CO 80202-2500

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

January 23, 2020

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION,
(MSHA),

Petitioner,

v.

SUPERIOR
SILICA SANDS LLC,

Respondent.

CIVIL
PENALTY PROCEEDINGS

Docket
No. CENT 2019-0133

A.C.
No. 41-01126-482167

Docket
No. CENT 2019-0171

A.C.
No. 41-01126-484042

Mine:
Superior Silica Sands San Antonio

Plant

DECISION AND
ORDER

Appearances:   Lindsay
A. Wofford and Phillip Marquez, U.S. Department of Labor, Office of the
Solicitor, Dallas, Texas, for Petitioner;

Joseph
A. Fisher, III and Benjamin Rhem, Jackson Walker LLP, Houston, Texas and Austin,
Texas, for Respondent.

Before:                        Judge
Miller

These cases are
before me upon petitions for assessment of a civil penalty filed by the
Secretary of Labor pursuant to Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d) (“the Act”). These cases involve one
citation and two orders issued pursuant to Section 104(d)(1), with a total
proposed penalty of $49,195.00. The parties presented testimony and evidence
regarding the citations at a hearing held in San Antonio, TX commencing on November
6, 2019.

The
Superior Silica Sands San Antonio Plant is an open pit, surface sand mine
located in Bexar County, Texas. The parties have stipulated that Superior
Silica is an “operator” as defined in Section 3(d) of the Mine Act, 30 U.S.C. §
803(d), and that the mine is subject to the provisions of the Mine Act and the
jurisdiction of the Commission. Tr. 6–7; Sec’y Amend. Prehearing Submissions at
para. 4.a­–g.

I.       
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

The citation and two orders at issue in
this proceeding involve railcars on the south section of the company owned rail
spur at the Superior Silica Sands San Antonio Plant. On June 23, 2018, a fatal accident
occurred at the mine when Rodney Fernandez, a 46-year-old electrician, was
struck by two uncoupled railcars after attempting to set the manual handbrake. Fernandez
had no previous mining experience and had been employed at Superior for about
ten weeks. The accident occurred when Fernandez climbed on a set of moving
railcars after they began to roll down the track while he was helping Plant
Manager Chad Thomsen uncouple and move railcars from the south spur to the
north spur. The parties agree that most of the facts in this case are not in
dispute. There is, however, a dispute regarding the time on the day of the
accident and what occurred between Thomsen and Fernandez leading up to the
accident. At hearing, the parties agreed that the diagram taken from the MSHA accident
investigation report and labeled as Joint Exhibit 1, would be used to
facilitate testimony regarding the railcars and the rail spurs. The diagram
labels the cars from one to six on the south spur, with a track mobile, also
referred to as a Rail King, at the front of Railcar #1. The north spur shows a
car labeled “spare”. The cars are shown in the photographs in Secretary’s Exhibit
2. 

The problem with the railcars began on
March 2, 2018, when railcar TILX 338713 (Railcar #4 on Joint Exhibit 1), was
involved in an accident in the area of the south spur of the Superior rail
line. The car derailed, and as a result, the brakes and underside of the car
suffered significant damage. The mine hired a contractor to set the car back on
the rail, and subsequently moved it into place on the south spur between Railcars

3 and #5, both of which had functioning brakes. The three cars were coupled

together and signs were placed on Railcar #4 that read “DO NOT FILL.” Sec’y Ex.
2, 9. The railcars are leased and at the time of the accident in June, no
repairs had been made to Railcar #4.  

Superior operated an old plant and a
new plant. The mined product was moved by railcar at times from the old plant
and onto a portable conveyor, which in turn was used to load material onto
trucks. At times, material is loaded first onto the rail cars. The railcars
operate on the rail spur, as seen on the second page of Secretary’s Exhibit 2, to
a load out area to be filled with sand and are then returned to the south spur
until the sand is needed. When sand is needed, the portable conveyor is moved to
the railcar to empty it by opening the bottom of the car, and loading material
onto a conveyor that moves the sand from the railcar to a truck for transport
out of the mine. There is conflicting evidence about the use of Railcar #4 from
the time the brakes were damaged in March until the accident in June. The car
was not filled and the mine asserts that the car had not been moved at all, but
several witnesses indicated that the string of cars was moved on a weekly basis
in order to take on sand for storage. Nonetheless, Railcar #4 remained in the
string of cars and coupled to Railcars #3 and #5 on the rail spur from March
until the accident in June.

Emilio Gonzales works as a team leader,
primarily in the dryer, and sometimes loaded the railcars by opening a valve at
the end of the silo’s load out arm shown in Exhibit 2. Once loaded with sand,
the railcars were moved back to the spur to wait unloading onto the trucks for
transport out of the mine.  Gonzales did not move the railcars and, in his
view, that was done only by the veteran employees who knew the procedure and
had moved them in the past.

After the derailment of Railcar #4 in
March, but before the accident in June 2018, the mine provided railcar training
to some of the miners at the old plant. Adian Amador-Doss attended the training
for the full twenty hours over several days. Amador worked as a field mechanic
and plant operator at Superior. Amador had been asked at one time to help move
the railcars, but he refused, not only because he did not know how, but also
because he believed it was not a good idea without the proper training. In May
2018, railcar training was given to Amador and five others, and included class
time with videos and a number of handouts. Sec’y Ex. 21. The videos explained
how the railcars operated and the hazards associated with working around them. After
time in the classroom, the miners spent time around the railcars with
demonstrations and hands-on training. Amador explained that at least three
miners must be present when a train moves, each with a radio for communication.
The training emphasized that trains can fail, and, in the case of a runaway
train, miners were told “to let it go.” Fernandez did not attend the railcar training.

On Saturday, June 23, 2018, Fernandez
reported to work just before seven a.m. He spoke with Amador and Gonzales, and
spent time with his immediate supervisor, Taft. Fernandez was the main
electrician on site, but also performed general repairs. After discussing the
tasks for the day, Taft and Fernandez went to the control room to inspect items
that needed repair. Around 8:30 or 9:00 a.m., Taft was called away to look at a
conveyor at the old plant, and he told Fernandez to stay at the control room to
see if he could find the problem there.

Gonzales, who was working at the dryer that
Saturday, greeted Fernandez when he arrived and then went back to work. Just
before 9:00 a.m., Gonzales left the control room to change filters and saw
Fernandez standing by the railcars. He did not see Thomsen. Gonzales changed
the filters, collected a sample of sand, and walked back towards the new plant.
As he was on the control room stairs, he looked out and saw Fernandez on the back
of moving Railcar #6. At hearing, Gonzales said that one moment he said hello
to Fernandez and the next thing he knew, Fernandez was on the moving rail cars.
He explained that “Rodney was on the moving train, cranking on the manual brake
as it was moving.” He also described that Railcars #5 and #6, which were
coupled to each other, began “rolling pretty good,” and Gonzales could not
believe that Fernandez would try to stop them. Fernandez was cranking on the
wheel to set the brake as the train was headed for the spur where it would
derail. Gonzales saw Fernandez attempt to jump off, and ran toward the cars
while calling on the radio for help. Taft heard the radio call, called 911, and
shut down the plant. A call went into the paramedics at 9:26 a.m. Sec’y Ex. 15. 

According to the evidence gathered by
the MSHA inspectors, Fernandez had been in the control room until close to 9:00
a.m. He then left, walked out to the railcar area, and spoke with Thomsen, the
plant manager. Thomsen’s plan was to first move a spare car coupled to the Rail
King from the south spur to the north spur. Next, he planned to move the
damaged Railcar #4, from its position with the five other cars on the south
spur to the north spur, where it would be coupled with the spare car. Thomsen next
planned to move the remaining five cars and offload the sand from Railcars #1
and #2 onto the conveyor. Tr.269. Although Thomsen was working earlier with a
partner, he was alone at the railcars when he agreed that Fernandez could help.
A few witnesses explained that Fernandez may have left the control room and arrived
at the railcars as early as 8:40 a.m. to start the tasks with Thomsen, but the
inspector concluded that he left around 9:00. Although not all witnesses agreed,
there is evidence to show that Fernandez may have been with Thomsen for up to
45 minutes, or as little as 25 minutes prior to the fatal accident.

Fernandez had no prior mining experience
and had worked as an electrician at the mine for ten weeks. He had never worked
with or around railcars, so he had to be task trained prior to completing the
work with Thomsen. Thomsen explained that Fernandez was intelligent and caught
on quickly. Shortly after Fernandez arrived, Thomsen started up the Rail King,
the engine that would pull the cars from the south spur to the north spur. The
Rail King had the spare car connected and Thomsen described the process to
Fernandez, and then moved the Rail King with the spare car coupled down the south
track. Fernandez was responsible for throwing the switch to change the tracks
once the cars were in position. Thomsen backed the Rail King onto the north
spur and the spare car was uncoupled. Then, the process was reversed, with Fernandez
on the ground, changing the tracks as necessary. Next, the Rail King was backed
onto the south spur and coupled with Railcar #1 to begin the process of moving Railcar

4 out of the line of cars. The plan was to uncouple Railcar #4 from Railcar #5,

and move Railcars #1–4 down the south spur. Then, switch tracks and deliver Railcar

4 to the north spur to couple it with the spare car, and return with Railcars

1–3 to the south spur to couple with Railcar #5. Fernandez was tasked with

uncoupling Railcar #4 from #5 to initiate the process.  

The mine’s maintenance supervisor, Taft,
explained the process for moving the railcars as contemplated by Thomsen. Tr. 99–109.
The process typically involves two people: an engineer and a ground person. The
two miners communicate either by radio or by hand signals. The miners first complete
a walk around or a visual check of each of the cars, set the air brakes from
inside the Rail King, set the manual or mechanical brake on each car if not
already set, and then ascertain that all cars are coupled or uncoupled, based
upon what must be moved. It is the duty of the engineer to set the air brakes
from inside the Rail King, and the ground person is tasked with setting the manual
or park brake on each car by climbing onto an affixed ladder and turning the
wheel until it can no longer move. See Sec’y Ex. 2, 22.

The process contemplated by Thomsen should
have followed the scheme described by Taft, and, after completing a walk around
inspection of the cars, setting each mechanical brake, starting at the back of Railcar

6, moving forward, before any cars were uncoupled or moved. The air brakes

should have also been set and then Railcar #4 could have been uncoupled from Railcar

5 so that only Railcars #1–4 were moved with the Rail King.  According to the

testimony, coupling and uncoupling of cars does not take much time. Setting the
manual brake is a longer task, as the miner on the ground must climb a ladder
onto the back of each car and turn the wheel until it stops. 

Following the move of the spare car, Fernandez
and Thomsen began the process of moving the damaged Railcar #4 to the north
spur. [1]
In addition to learning the operation of the switch, Fernandez had to learn how
to complete a walk around inspection of the cars, couple and uncouple the cars,
set the mechanical brake, and communicate with Thomsen. Thomsen, who had task
trained miners in the past, explained that he had confidence in Fernandez after
working with him for several weeks because Fernandez was intelligent and caught
on quickly. At the time the two were coupling the Rail King to Railcar #1,
Thomsen explained the tasks and demonstrated how to climb on the back of the
car to set the brake. There is some dispute in the testimony at this point. Thomsen
agrees that he did not observe Fernandez set a brake after he demonstrated the
action, but he remembers that he did tell Fernandez to set the brakes. Inspector
Barrick recalls his conversation with Thomsen differently; twice he was told
that Thomsen did not tell Fernandez to set the brakes, but instead assumed
Fernandez knew it should be done. Thomsen believed that the brakes on Railcars

5 and #6 were set, but could not explain why the cars began to roll away once

uncoupled from Railcar #4.  There is no disagreement that the manual brakes on
both railcars #5 and #6 were not set when Thomsen began to move the first four
cars forward.

Thomsen had a conversation with Fernandez
about the process of moving the cars, then walked up the spur to the Rail King
and climbed in, leaving Fernandez to uncouple Railcar #5 from Railcar #4. The
Rail King was approximately 250 feet away from where Fernandez was uncoupling
Railcar #5. Once Fernandez had uncoupled Railcar #5 from Railcar #4, he
signaled to Thomsen to begin pulling the four railcars. As Thomsen began to
pull the railcars, he looked out of the side window and saw Railcars #5 and #6,
which were coupled to each other, rolling down the spur. Thomsen could not see
Fernandez, so he stopped the train, ran down the track, and found Railcar #6
derailed and Fernandez lying between the tracks.

As
a result of the accident, one citation and two orders were issued to Superior
Silica on December 6, 2018. Citation No. 8660296 was issued for failure to
properly task train a miner. Order Nos. 8660297 and 8660298 were issued for
failure to effectively secure parked Railcars #5 and #6 by blocks or brakes,
and for failure to maintain the braking system on Railcar #4 in functional
condition, respectively.

A.     CENT 2019-0171

Citation No. 8860296

Ten minutes after the accident occurred,
MSHA was notified and Inspectors Lance Miller and David Tijerina, along with
Lead Investigator Brett Barrick, were dispatched to the mine. As a result of
the investigation into the accident, Inspector Barrick issued Citation No.
8860296 to the mine.

The citation states that:

An
accident occurred on this mine site on 6/23/18, at approximately 9:20 am, when
a miner was fatally injured while assisting in relocating a rail car. The miner
uncoupled the last two rail cars and they began to roll away. The miner then
ran to the moving cars and attempted to set the manual handbrake. The miner
fell from the moving cars and was run over. The miner had not received adequate
task training nor did he have any prior experience in this task. The Federal
Mine Safety and Health Act of 1977 states that an untrained miner is a hazard
to himself and to others. Management engaged in aggravated conduct constituting
more than ordinary negligence in that it failed to instruct or ensure that the
miner set the manual handbrakes or block the two cars from movement. This is an
unwarrantable failure to comply with a mandatory standard.

The citation was designated as S&S and an
unwarrantable failure, and the Secretary proposed a penalty of $18,846.00 for
this violation. The Secretary alleges that the operator violated 30 C.F.R. §
46.7(a), new task training, which requires that:

You
must provide any miner who is reassigned to a new task in which he or she has
no previous work experience with training in the health and safety aspects of
the task to be assigned, including the safe work procedures of such task …This
training must be provided before the miner performs the new task.

30 C.F.R. § 46.7(a). The Secretary argues that
Fernandez, who had never worked around railcars and had been at the mine only
10 weeks, needed further and more extensive task training; more than the 25-40
minutes provided by the plant manager, Chad Thomsen.

To
prevail on a penalty petition, the Secretary bears the burden of proving an
alleged violation by a preponderance of evidence. RAG Cumberland Res. Corp. ,
22 FMSHRC 1066, 1070 (Sept. 2000), aff’d , 272 F.3d 590 (D.C. Cir. 2001);
Jim Walter Res., Inc. , 9 FMSHRC 903, 907 (May 1987). The Secretary may
establish a violation by inference in certain situations, but only if the
inference is “inherently reasonable” and there is “a rational connection
between the evidentiary facts and the ultimate fact inferred.” Garden Creek
Pocahontas Co ., 11 FMSHRC 2148, 2152-53 (Nov. 1989).

Based upon information learned during the course of
the investigation, MSHA Inspector Barrick determined that Fernandez had not received
adequate task training. Prior to doing any work or moving any of the cars,
Thomsen was required to task train Fernandez in all aspects of the job at hand
that day. He was also required to—but did not— discuss safety hazards with
Fernandez and specifically did not instruct him on the procedure in the event
of a runaway railcar.

Barrick credibly testified that the mine had
experienced a derailment several months prior to this accident and then held a
training session in May, which lasted several days. Unfortunately Fernandez did
not attend that training. See Sec’y Ex. 21 at 2. Thus, Fernandez’s only
exposure to railcars was the training received just prior to the accident, from
Thomsen. Thomsen explained to Barrick that he only demonstrated to Fernandez
how to set the manual brake and to couple and uncouple the cars. In Barrick’s
opinion, that limited training does not meet MSHA requirements. The training
did not include any documents, manuals, or other handouts, supervised
demonstration of skills, or, crucially, an explanation of hazards associated
with the task. Even if Fernandez had the ability to learn quickly, Barrick
found it unreasonable to believe that the short amount of time was enough to
adequately train Fernandez.

MSHA provides information to mine operators
regarding its standards, including task training, which is published and mailed
to each mine. MSHA’s guidelines suggest that task training is an extensive
process that should include providing handouts to miners, maintaining a task
list in a training plan, using operator’s manuals to determine specific hazards
related to the equipment used in the task, and reviewing safety procedures. Sec’y
Ex. 28. The guidelines further provide that task training should be completed
in a non-production setting, which allows a competent trainer the time to
discuss a skill, demonstrate it, and then observe the miner safely complete the
task. Sec’y Ex. 28. Inspector Barrick explained that the training for a ground
man, working around rail cars, must involve more than uncoupling the cars. The
task training should include how to communicate or use hand signals, how to
check and set the brakes, the hazards associated with moving rail cars, the red
zone area between the cars, the ability to warn persons about moving cars, and
how to safely mount cars. Miners must also be trained in safe practices and
instructed not to mount a car when it is moving, and never attempt to stop or
jump on a runaway rail car.

Superior Silica argues that a competent person,
Plant Manager Chad Thomsen, trained Fernandez how to set the manual handbrake
and how to uncouple railcars. The mine also argues that given Fernandez’s
intelligence and prior work performance, the short duration of task training by
Thomsen was all that was needed. The mine argues that Thomsen observed
Fernandez successfully assist in moving one railcar prior to the accident by
operating the switch as Thomsen moved the spare car with the Rail King. Thomsen
believed that because Fernandez observed and asked questions prior to moving
the spare car, he understood the process. Thomsen agrees that as they began the
process, they did not conduct a walkaround inspection of the cars, and did not
connect the air brake to Railcar #4, stating, “I had noticed that the steps
were bent in. I mean, the braking mechanisms were bent…it was a bad car.” Tr.

278. Thomsen did not set the hand brakes on any of the cars prior to uncoupling
     the cars, nor is it certain that he told Fernandez to set the hand brakes. Resp’t
     Ex. G. Thomsen testified that he did not recall setting or checking the brakes
     himself, and he did not recall instructing, supervising, or verifying that
     Fernandez set the brakes, stating, “I guess I assumed he did” because “he
     looked like he was – I mean, he was more than capable of doing it.” Tr. 279;
     Tr. 283. Thomsen also testified that he did not instruct Fernandez about the
     hazards of moving a railcar and specifically how to react to runaway cars. Thomsen
     was approximately 200 feet away from Fernandez with the Rail King’s engine
     running while Fernandez performed many of these tasks for the first time. Thomsen
     did not observe Fernandez do the tasks he was assigned, and he could not
     adequately supervise him from such a distance.

Superior Silica called Carl Bradley, as an expert in
rail operations, to testify about the training required to demonstrate proper
techniques for setting hand brakes and decoupling railcars. While somewhat
familiar with MSHA regulations based on his review for this case, Bradley is
most familiar with the Federal Railroad Administration regulations. See 49
C.F.R. Ch. II. Bradley’s expert opinion, based upon visits to the mine
location, examination of the railcars, and review of statements made by
employees, is that the mine was not negligent in providing task training to
Fernandez on the day of the accident. Resp’t Ex. B. After listening to
testimony at hearing, Bradley believed that Thomsen instructed Fernandez to set
the hand brakes, but Bradley could not say why that was not done by either
Thomsen or Fernandez. Bradley described the brake wheel in Exhibit L-21,
located on the B end of Railcar #5 and agreed that the brake was not set as
evidenced by the slack chain. See Resp Ex. L-1, L-2.   

Bradley believed Thomsen was a qualified trainer and
that adequate training could have been completed in 30 minutes. Bradley
compared task training to railroad training, and he opined that Fernandez
received basic brakeman training. Bradley insists that task training in this
instance was straightforward because he saw the task as limited to “uncoupling
and setting the brakes on a car,” which he considered to be “a very simple task
to grasp and understand.” Tr. 319. Bradley assumes as part of his opinion that
Fernandez and Thomsen communicated effectively, that Thomsen was not required
to impart adequate information, and that Fernandez’s intelligence was
sufficient to compensate for any lack of instruction provided. Bradley did not
believe that training on moving equipment was required. The only hazard Bradley
considered was slipping on the ladder as Fernandez climbed up to set the brake,
but he believed Fernandez, as an experienced electrician, likely had experience
climbing ladders. Bradley’s observations and opinions do not change my view
that Fernandez was not adequately task trained. Bradley’s testimony regarding
the rail industry is inconsistent with MSHA’s requirements and practices for
task training. Bradley acknowledged when new rail workers were shown how to set
a brake, he took the time to have each of them demonstrate that they could
competently complete the task.  Finally, Bradley did not address an important
part of working with railcars, a part not explained to Fernandez: never attempt
to catch or stop a runaway train but instead “let it go.” Tr. 42-43; 114;
152-153.

Fernandez had never worked on a railcar, and he had
only been at the mine for a short time. These factors indicate that the task
training needed to be much longer and in greater detail than for an experienced
miner who had worked around railcars. Superior asserts that there is no
requirement in the regulations that a certain amount of time be spent on task
training and that the trainer can take into account the skills of the miner. Inspector
Barrick agreed that the MSHA regulations do not specify an amount of time for
task training, and the training can be done through supervised practice under a
competent trainer. The complexity of the task may be considered along with the
experience and ability of the miner being trained. Nonetheless, these are just
a few of the many considerations that go into complete task training. Notably
missing from the training and from Bradley’s testimony are the important requirements
of task training that relate to safety considerations when working around
railcars, including safety considerations when setting a brake, coupling and
uncoupling cars, throwing switches, using hand signals, and understanding
correct safety procedures in an emergency. When asked, Bradley responded that
railroad companies no longer train miners how to board moving equipment
“because there was [sic] so many injuries.” Tr. 359. Although Thomsen and
Barrick differ on whether Thomsen told Fernandez to set the brakes on Railcars

5 and #6 prior to moving the cars, it is not disputed that Fernandez failed to

do so. The fact that Fernandez did not set the brake, and Thomsen also failed
to do so, indicates that the task training was inadequate. In this instance,
either Thomsen did not remind Fernandez to set the two brakes, or Fernandez who
is described as an intelligent and thoughtful worker, disregarded Thomsen’s
direction. It was the responsibility of Thomsen, to observe Fernandez and
ascertain that he not only knew how to do a task, but when and where to do it.

The Secretary’s regulations require that a miner who
is assigned to a new task for which he has no previous work experience be
provided with training in the health and safety aspects of the task to be
assigned, including the safe work procedures of such task. 30 C.F.R. § 46.7(a).
Moreover, this training must be provided before the miner performs the new
task. Dacotah Cement , 26 FMSHRC 461, 466 (Jun. 2004) (“Subsection (d)
clearly requires that a miner be trained in recognizing hazards specific to
the assigned task before performing the task.”) (emphasis original); see
30 C.F.R. § 46.7(d). Although the Commission has indicated that a short
period of time may suffice for task training, it must include health and safety
information in addition to supervised practice or operation. See White Oak
Mining & Construct. Co. , 20 FMSHRC 1130 (Oct. 1998). Even if I find
that everything Superior Silica suggests is true, there is no dispute that
supervised practice or operation was not provided and that Fernandez was given
no training in the safe work procedures of that task. I find therefore that the
mine did not task train Fernandez as required and uphold the violation as
issued.

i.                    
Significant
and Substantial

The
Secretary further alleges that the violation was significant and substantial. A
“significant and substantial” (“S&S”) violation is described in Section
104(d)(1) of the Mine Act as a violation “of such nature as could significantly
and substantially contribute to the cause and effect of a coal or other mine
safety or health hazard.” 30 U.S.C. § 814(d)(l). A violation is properly
designated S&S “if based upon the particular facts surrounding that
violation, there exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious nature.” Cement
Div., Nat’l Gypsum Co. , 3 FMSHRC 822, 825 (Apr. 1981).

In
Mathies Coal Co. , the Commission established the standard for
determining whether a violation is S&S:

In
order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum, the Secretary of
Labor must prove: (1) the underlying violation of a mandatory safety standard;
(2) a discrete safety hazard—that is, a measure of danger to safety—contributed
to by the violation; (3) a reasonable likelihood that the hazard contributed to
will result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.

6
FMSHRC 1, 3-4 (Jan. 1984).

The second element of the Mathies test
addresses the likelihood of the occurrence of the hazard the cited standard is
designed to prevent. Newtown Energy, Inc ., 38 FMSHRC 2033, 2037-38 (Aug.
2016). The Commission has explained that “hazard” refers to the prospective
danger the cited safety standard is intended to prevent. Id. at 2038. For
example, Newtown involved a violation of a standard requiring that equipment be
locked out and tagged out while electrical work is being performed. Id. The
Commission determined that the hazard was a miner working on energized
equipment. Id. The likelihood of the hazard occurring must be evaluated
with respect to “the particular facts surrounding the violation.” Id. ; see
also McCoy Elkhorn Coal Corp. , 36 FMSHRC 1987, 1991-92 (Aug. 2014); Mathies ,
6 FMSHRC at 4. At the third step, the judge must assess whether the hazard, if
it occurred, would be reasonably likely to result in injury. Newtown , 38
FMSHRC at 2037. The existence of the hazard is assumed at this step. Id. ;
Knox Creek Coal Corp. v. Sec’y of Labor , 811 F.3d 148, 161-62 (4th Cir.
2016). As with the likelihood of occurrence of the hazard, the likelihood of
injury should be evaluated with respect to specific conditions in the mine. Newtown ,
38 FMSHRC at 2038. Finally, the Commission has found that the S&S
determination should be made assuming “continued normal mining operations.” McCoy ,
36 FMSHRC at 1990-91.

I have found a violation as discussed above, and I
find that the hazard that this standard is meant to prevent is that of an untrained
person engaging in a task without understanding the proper procedure and safety
hazards associated with the task. As Congress noted in the Mine Act, an
untrained miner is a hazard to himself and others. 30 U.S.C § 814(g). Here,
given the circumstances and conditions at the time, the hazard was likely to
occur, in that a miner who had not been adequately trained, was forced to deal
with an unsafe condition and did not know how to do that. The failure to adequately
train was likely to lead to an accident that would in turn result in serious
injuries or a fatality. Clearly, the violation here led to a fatal
injury.

The Commission has previously agreed with an ALJ
regarding the significant and substantial nature of failing to task train a
miner. In Twentymile Coal Co. , a miner fell from a ladder while
attempting to unclog a vertical rock chute. 26 FMSHRC 666 (Aug. 2004), aff’d
in part and remanded in part by Sec’y of Labor v. Twentymile Coal Co. ,
411 F.3d 256 (D.C. Cir. 2005). The Commission unanimously agreed that the
operator failed to provide task training and that the violation was S&S,
finding that the operator had assigned a group of miners to a job without any
training “to guard against hazards inherent to the task,” such as slipping and
falling around the ladder and platforms and spillage of rocks outside of the
chute. The Commission also rejected the mine’s argument that the background and
experience of miners must be reviewed in order to make an S&S determination
once a violation has been established. 26 FMSHRC at 681.

In this case, Fernandez was inexperienced and
received very little training in the new task he was performing. As a result,
the hand brakes were not set on Railcars #5 and #6, and as they were uncoupled
from Railcar #4, they began to roll down the track. In addition to not
understanding he must set the brakes on those two cars, Fernandez was not told
that he should not jump onto a moving railcar in an attempt to set the brakes
after it was in motion. Applying the S&S criteria to the circumstances
here, I find that the violation is significant and substantial.

ii.                  
Negligence

The
Secretary alleges that the violation was the result of high negligence. The
Mine Act places primary responsibility for maintaining safe and healthful
working conditions in mines on operators, and they are thus expected to set an
example for miners working under their direction. Newtown , 38 FMSHRC at
2047; Wilmot Mining Co. , 9 FMSHRC 684, 688 (Apr. 1987) (“Such
responsibility not only affirms management’s commitment to safety but also,
because of the authority of the manager, discourages other personnel from
exercising less than reasonable care.”); see also 30 U.S.C. § 801(e). The
Commission has recognized that “[e]ach mandatory standard … carries with it an
accompanying duty of care to avoid violations of the standard, and an
operator’s failure to meet the appropriate duty can lead to a finding of
negligence if a violation of the standard occurs.” A.H. Smith Stone Co. ,
5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator met its duty of
care, the judge must consider “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.” Newtown ,
38 FMSHRC at 2047; Brody Mining, LLC , 37 FMSHRC 1687, 1702 (Aug. 2015); U.S.
Steel Corp. , 6 FMSHRC 1908, 1910 (Aug. 1984). While the Secretary’s Part
100 regulations evaluate negligence based on the presence of mitigating
factors, Commission judges are not limited to that analysis. Brody , 37
FMSHRC at 1702-03. Rather, Commission judges consider “the totality of the
circumstances holistically” and may find high negligence in spite of mitigating
circumstances. Id. at 1702.

Superior Silica argues that a competent person, Chad
Thomsen, observed Fernandez successfully move one railcar prior to attempting
to move Railcar#4 to the other track. Therefore, the mine argues some training
was provided and so the negligence was not high. The Secretary alleges that
because Thomsen did not take the time required to adequately train Fernandez,
and made assumptions about his abilities, the violation was the result of high
negligence. I agree. Thomsen knew that Fernandez had no experience or prior
training on rail work and as Inspector Barrick explained Thomsen should have
either refused the help offered by Fernandez or taken the time necessary to
include all aspects of the training needed by Fernandez to do the job safely. Thomsen
was a manager with experience who should understand the risks of failing to
adequately train miners. In particular, Thomsen should have understood the
risks of an untrained miner uncoupling and moving large and heavy railcars on a
grade.

In Ky. Fuel Corp. , the Commission approved a
judge’s decision that similarly concluded that high negligence was appropriate
due largely to the operator’s failure to provide adequate training and
materials that resulted in an improper wheel blocking violation. 40 FMSHRC 28
(Feb. 2018). In this case, the supervisor made little to no effort to task
train the miner. The Secretary believes the task training was inadequate for
three reasons: (1) the mine failed to ensure that Fernandez set the manual
handbrakes or blocked the two cars prior to Thomsen attempting to decouple the
cars; (2) Thomsen should have either set the manual handbrakes on or blocked
the two railcars himself, or directly observed Fernandez set the manual
handbrakes on or block Railcars #5 and #6; and (3) the mine should have
instructed the miner that in the event of a runaway train, the miner should
allow the railcars to proceed to derailment. In failing to do any of these
three items, Thomsen was highly negligent.

iii.                
Unwarrantable
failure

Citation
No. 8860296 was designated as an unwarrantable failure to comply with a
mandatory standard. The unwarrantable failure terminology is taken from Section
104(d) of the Act, 30 U.S.C. § 814(d). The Commission has explained that
unwarrantable failure is “aggravated conduct constituting more than ordinary
negligence. [It] is characterized by conduct described as ‘reckless disregard,’
‘intentional misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable
care.’” Consol. Coal Co. , 22 FMSHRC 340, 353 (Mar. 2007) (citing Emery
Mining Corp. , 9 FMSHRC 1997, 2001-04 (Dec. 1987)) (citations omitted). In
determining whether a violation is an unwarrantable failure, the Commission has
instructed its judges to consider all of the relevant facts and circumstances
in the case and determine whether there are any aggravating or mitigating
factors. Id. Aggravating factors to be considered include:

the length of
time that the violation has existed, the extent of the violative condition,
whether the operator has been placed on notice that greater efforts were
necessary for compliance, the operator’s efforts in abating the violative
condition, whether the violation was obvious or posed a high degree of danger,
and the operator’s knowledge of the existence of the violation.

IO Coal Co. , 31 FMSHRC
1346, 1352 (Dec. 2009); see also Consol. , 22 FMSHRC at 353.

A number of the
factors outlined in IO Coal, are a basis for the unwarrantable finding
in this case, particularly that the violation was obvious, posed a high degree
of danger and the operator knew of the violation. First, there is no testimony
regarding how long the mine has failed to adequately task train its miners, and
there is also nothing to demonstrate that the mine had been placed on notice
that greater training efforts were necessary. However, the record reflects
that the violation was extensive in terms of the total failure to task train
prior to attempting to move the railcars. The extent factor is intended to
“account for the magnitude or scope of the violation” in the
unwarrantable failure analysis. Dawes Rigging & Crane Rental , 36
FMSHRC 3075, 3079 (Dec. 2014) (emphasis added). To safely work in this sort of
situation, a miner must have a breadth of understanding about the very large
equipment and the safety hazards associated with it. Yet, the mine failed to
train Fernandez on the important safety factors related to the task, and
therefore the violation was extensive in those terms.

Thomsen and
Fernandez were working on enormous pieces of machinery. The railcars at issue
are nearly 50 feet long and 15 feet high. The railcars weigh approximately
53,000 pounds when empty and are estimated to contain 200,000 pounds of sand when
full, on a track that has a grade of 2-3%. Resp Ex. F at 4, Tr. 173-177 217, 281.
Work on this equipment posed a considerable risk to miners, regardless of their
level of training or experience. The degree of danger was exacerbated by the
fact that Thomsen left Fernandez alone to perform a task that he clearly did
not have enough experience or training to do. Moreover, the fact that Thomsen
did not include any explanation regarding the safety hazards associated with
the tasks, including what to do in the event of a runaway train, made
this already dangerous activity all the more hazardous. Fernandez’s death
resulted from a reckless disregard for his safety when working under conditions
that posed an extremely high degree of danger. I find these to be aggravating
circumstances that support a finding of unwarrantable failure to comply with a
mandatory standard.

Knowledge is
also a factor in determining that the violation is an unwarrantable failure. Thomsen
was the plant manager, a supervisor with experience who had conducted task
training in the past. Thomsen knew, or at best, should have known, that given
the lack of experience in both mining and in the use of railcars, the training
he gave Fernandez was inadequate. Despite the fact that Fernandez had performed
well during his short time at the mine, Thomsen should not have assumed that
Fernandez knew what to do safely. The need for explicit and careful training
was obvious, and the operator was aware of that fact.

Abatement
efforts relevant to the unwarrantable failure analysis are those made prior to
the issuance of the citation or order. Consol , 35 FMSHRC at 2342; IO
Coal , 31 FMSHRC at 1356. In this case, Thomsen provided inadequate
instruction before leaving Fernandez to work on his own and no abatement
efforts were made.  Given that the task was inherently dangerous, that the lack
of task training was obvious, and that Thomsen should have known that more
training was needed, yet failed to do so, I find the Secretary has demonstrated
that the violation occurred as the result of the operator’s unwarrantable
failure to comply with a mandatory health or safety standard.

Order No.
8860297

On
December 6, 2018, Inspector Barrick issued a second citation as a result of the
accident. The citation states:

An
accident occurred on this mine site on 6/23/18, at approximately 9:20 am, when
a miner was fatally injured while assisting in relocating rail cars. The miner
uncoupled the last two rail cars and they began to roll away. The miner ran to
the moving cars and attempted to set the manual handbrake. The miner fell from
the moving cars and was run over. The two loaded cars at the end of the train
were not effectively secured by either of the raking systems. Management
engaged in aggravated conduct constituting more than ordinary negligence in
that it did not ensure or instruct the miner to set the manual handbrakes or
block the two cars from movement prior to uncoupling. This is an unwarrantable
failure to comply with a mandatory standard. 

The inspector
designated the order as S&S and as an unwarrantable failure, and the
Secretary proposed a penalty of $20,940.00. The Mine Act and its standards “are
to be interpreted to ensure, insofar as possible, safe and healthful working
conditions for miners.” Pittsburg & Midway Coal Mining Co. , 8 FMSHRC
4, 6 (1986). The mandatory standard at issue here, 30 C.F.R. § 56.14217,
securing parked rail cars, is part of the safety standards for equipment and is
intended to ensure miner’s safety when working around equipment such as
railcars. The standard requires that “[p]arked railcars shall be blocked
securely unless held effectively by brakes,” which is meant to “provide [p]rotection
for miners against unintended movement of railcars.” 30 C.F.R. § 56.14217; 53
Fed. Reg. 32,496 (Aug. 25, 1988).

The Section 104(d)(1) order alleges that the two
cars at the end of the train were not effectively secured by either of the
braking systems. The Secretary argues that the mine failed to set the manual
handbrakes or block the two cars prior to attempting to decouple and then move
the cars. Since the miner had never performed this task, the supervisor should
have either set the handbrakes or directly observed the miner set the
handbrakes. And if there was any indication that the brakes would not hold, the
Supervisor should have blocked the cars from movement. When the miner uncoupled
Railcar #5 from #4, and Thomsen pulled Railcars #1-4 away, Railcars #5 and #6
began rolling down the track in the opposite direction and therefore were not
secured against movement.

This citation was issued because Railcars #5 and #6
did not have the mechanical brakes set or blocked prior to uncoupling and
moving the front cars. See Jt. Ex. 1. There is no dispute that the
brakes were not set, as Fernandez tried to jump on Car #6 as it was moving and
was observed turning the wheel to set the brakes. When the cars came to a stop,
and Railcar #6 derailed, the brake was set on that car, but was not set on
Railcar #5. Inspector Barrick testified that if the brakes had been set and
were functioning, that might have stopped the train. The mechanical brakes on
both cars were required to be set, and if they were not, or did not hold, they
were required to be blocked from movement.

Superior Silica argues that the two railcars were
effectively secured because they had remained in the same position since March
2018 and until June 23, 2018, the date of the accident. I disagree, the
mandatory standard requires that the mechanical brakes be set and therefore,
relying on the brakes of attached equipment does not satisfy the requirements
of the standard.  Thomsen and Fernandez failed to set the brakes on Railcars #5
and #6 or block the cars from movement. As neither action was taken, I find
that there is a violation of the mandatory standard.

i.                    
Significant
and Substantial

The Secretary alleges that the violation occurred
and was fatal and marked the citation as significant and substantial. The
standard is designed to protect against unintended movement of the rail cars. In
the circumstances found here, uncoupling the cars resulted in an unintended
movement, which in turn resulted in the hazard the standard is designed to
avoid. The unintended movement of these two railcars resulted in two, very
heavy, 50 foot long cars moving down the track without warning, and resulted in
an injury to a miner.  The additional hazard that the standard is intended to
prevent is that of a miner trying to set the brake once the cars started to
move, in order to avoid a derailment. Both conditions and hazards would result
in an injury to a miner and the injury would be serious or fatal.  

Superior argues that the railcars had been in the
same location for months, and therefore it was unlikely that they would move. However,
the cars had been coupled to others while on the tracks and it was the
uncoupling that most likely caused the unintended movement. The Secretary
argues that even if coupled, the brakes are required to be set, if the cars are
not blocked from movement and the failure to do so creates a hazard that likely
will lead to a serious injury. I agree and find that the violation was
significant and substantial.

ii.                  
Negligence

The Secretary alleges that the violation was the
result of high negligence. Superior Silica argues that the railcars were effectively
secured because they had remained in the same position from March 2018 up until
the accident on June 23, 2018. The mine also argues that the miner was
specifically instructed to set the manual handbrakes on the two cars to prevent
movement prior to uncoupling.

The Secretary argues that the mine failed to ensure
that Fernandez had set the manual handbrakes or block the two railcars before
either of the men attempted to decouple the cars and before Thomsen began to
move the four front cars forward. Thomsen, as the supervisor and trainer, knew
that the brakes should be set prior to any movement, or even while just idle on
the tracks. He should have ascertained that all of the brakes were set and
would hold the two end rail cars before attempting to move the front cars. Given
Thomsen’s position, the Secretary contends that Thomsen should have set the
manual handbrakes or blocked the railcars himself, or that he should have
directly observed Fernandez perform the task. Thomsen did neither. Thomsen was
the plant manager and the supervisor; he should have ascertained that the
brakes were set or blocked and therefore his actions constituted more than
ordinary negligence, and I find that high negligence is appropriate.

iii.                
Unwarrantable
failure

The inspector issued the violation as an
unwarrantable failure to comply with a mandatory standard. The Secretary argues
that management engaged in aggravated conduct constituting more than ordinary
negligence because working in and around railcars poses a high degree of
danger, the supervisor made no effort to see that the brakes were set or that
the cars blocked from movement prior to uncoupling, and the supervisor was
aware of the dangers posed by railcars that were not held in place.

Superior Silica argues that there was no willful
intent to avoid setting the brakes and that Thomsen specifically instructed
Fernandez to set the manual handbrakes prior to uncoupling Railcars #5 and #6. The
testimony is disputed in this regard. Barrick asserts that Thomsen did not
instruct Fernandez to set the brake, nor did Thomsen in his statement to
Barrick believe that the brakes had already been set. Thomsen, on the other
hand, asserts that he believed the brakes had been previously set, but later
asserts that he told Fernandez to set the brakes.

Nevertheless,
as the plant manager and supervisor, it was Thomsen’s responsibility to ensure
the brakes were set prior to moving the cars. This was crucial. The brakes were
not set at the time the cars were uncoupled, resulting in a critically high
degree of danger and resulting in the death of Fernandez. Moreover, as long as
the cars were parked, the mechanical brake should have been set, and the
violation therefore was obvious and known to the mine, yet nothing was done to
abate the condition prior to the date of the accident. Since the railcars were
not used frequently, the brakes likely had not been set for some time. Therefore,
the length of time the condition existed contributes to the finding of
unwarrantability.  Although the Secretary argues that the mine was put on
notice by the derailment some months earlier, I cannot agree that the earlier
derailment would alert the mine to the type of violation cited here. I also do
not rely on how extensive the violation was in making a determination about
unwarrantable failure. However, I find the other factors compelling and as a
result find the violation was the result of an unwarrantable failure to comply
with a mandatory health or safety standard.

B.      CENT 2019-0133

Order No. 8860298

The
final order issued by Inspector Barrick on December 6, 2018 cited a railcar,
designated as Railcar #4 on Joint Exhibit 1, for not having functional brakes. The
citation alleges:

The
mine operator failed to maintain the braking system on rail car TILX 338713. The
rail car was located on the South section of the mines rail spur coupled to 6
other cars situated in the 4 position. The rail cars brake linkage had been
sheared off on March 2, 2018 when it was released down the spur and derailing
it onto its side. The car was recovered and placed back onto the spur without
repairing the braking system. Chad Thomsen, Plant Manager engaged in aggravated
conduct constituting more than ordinary negligence in that he failed to ensure
that the braking system on the TILX 338713 was maintained. This is an
unwarrantable failure to comply with a mandatory standard.

The citation is designated as S&S and
unwarrantable and the Secretary has proposed a penalty of $9,409.00. [2] The
standard cited at 30 C.F.R. § 56.14102, titled, “Brakes for rail equipment,” states
that “[b]raking systems on railroad cars and locomotives shall be maintained in
functional condition.” The standard is analogous in language to a standard dealing
with back up alarms, which are also required to be maintained in functional
condition. In Wake Stone
Corp. ,
36 FMSHRC 825, 827 (Apr. 2014), the Commission reviewed the standard for back
up alarms and decided that the plain meaning of § 56.14132(a) requires that
back up alarms and horns always be maintained in functional condition. Evidence
showed that the service horns were defective at the time of inspection and the
equipment had not been removed from service. Id. Therefore, the horns
were not being “maintained in functional condition” as required by the
regulation. Id. Applying a similar interpretation to the regulation at
issue here, the plain language of 30 C.F.R. § 56.14102 requires that braking
systems on railroad cars must always be maintained in functional condition and,
if not, the car must be removed from service. 

The Section 104(d)(1) order alleges that the mine
operator failed to maintain the braking system on Railcar #4. The Secretary
argues that the car’s brakes were severely damaged in the March 2018 derailment,
that the mine was aware the brakes were damaged, and the mine did nothing to
repair them. See Sec’y Ex. 2, 25; see also Sec’y Ex. 16, 8–15. Instead
of repairing the brakes, the mine put Railcar #4 in a string of railcars that
the mine used in normal operations. The Secretary argues that while the mine
placed a “DO NOT FILL” sign on Railcar #4, that action is not sufficient to
comply with the clear terms of the standard. As Barrick explained, if the mine
was not going to repair the brakes, the car should have been completely removed
from service. The “DO NOT FILL” sign did not effectively remove the car from
service. Tr. 226. Even though Rail Car #4 was coupled to Railcars #5 and #3, it
could not hold in place on its own and remained defective.

Superior Silica takes the position that the mine
should not have been cited for the damaged brakes. Instead, the facts and
circumstances surrounding the violation should be considered, including that
the mine contacted the owner of Railcar #4 to discuss repairs, coupled the car
to other cars to prevent use, did not load it with sand, and did not move the
car for nearly three months. The law, however, does not support the mine’s
position. Once the brakes were discovered to be non-functional and inoperative,
and the car remained in a location where it could be used, the mine was in
violation of the standard. Railcar #4 was coupled to a line of other cars, which
were on the south spur and available for use at the mine. See Wake Stone ,
36 FMSHRC at 828 (citing Ideal Basic Indus., Cement Div. , 3 FMSHRC 843,
845 (Apr. 1981) (if defective equipment affecting safety is located in a normal
work area and is fully capable of being operated, that constitutes use)). Following
its March 2018 derailment, Railcar #4 should not have been placed in the string
of cars but instead isolated in a separate area where it could not be used, as
Thomsen was attempting on the day of the accident. Thus, Railcar #4 was not out
of service as the mine alleges and I find that the Secretary has proven the
violation.

The mine has also suggested that MSHA failed to cite
the correct mandatory standard in Order No. 8860298. Superior Silica asserts
that the mine should have been cited for a violation of 30 C.F.R. § 56.14100,
which requires in part, that self-propelled mobile equipment with hazardous
defects be tagged and removed from service. The mine’s argument fails to
consider the Commission’s case law that requires the standard that is the most
specific to be cited over a more general standard. As the Commission has
consistently explained, when two regulations apply to the same condition, the more
specific regulation is the appropriate standard to cite. Western Fuels-Utah,
Inc. , 19 FMSHRC 994 (June 1997). Here, the standard cited by the inspector,
30 C.F.R. § 56.14102, deals specifically with braking systems on railroad cars
and is clearly titled “Brakes for rail equipment.” In a dispute over which
standard should apply, it is clear that 30 C.F.R. § 56.14102 is more
appropriate than the general regulation found at 30 C.F.R. § 56.14100.

i.                    
Significant
and Substantial

The citation was marked S&S and the Secretary
alleges the violation was highly likely to result in a permanently disabling
injury. The Secretary asserts that although the defective brakes did not
contribute to the June 23 accident, it was likely that the condition of the
brakes would result in an accident. Superior Silica disagrees. The operator argues
that the injury was not highly likely to occur because the mine did not use
Railcar #4, and instead placed a sign on each side of the car instructing
miners not to fill it.

Barrick believed that the condition of Railcar #4
was bad enough that any movement would cause it to derail. He explained that
any number of things could go wrong moving Railcar #4 given its severe damage. Tr.
228–29. The car had been sitting on the tracks for months and even though it
was connected to Railcars #3 and #5, the brakes were not set on Railcar #5,
thereby rendering the connection less effective. The failure to isolate Railcar

4 from the functional railcars and remove it from the south spur resulted in a

hazard. Railcar #4 was in a position and location where it was available for use
and could be moved up and down the tracks, even if not filled.  

I
have found a violation of the mandatory standard and I find further that the
standard is designed to prohibit railcars from use when the brakes are not
functioning. Using a railcar with bad brakes would likely result in an accident,
including derailment or unexpected movement, which in turn would result in a
serious injury. In this case, Railcar #4 was coupled within a line of cars and
between two that had functioning brakes. However, the evidence shows that Railcar

5, at a minimum, did not have its air or mechanical brakes set at the time of

the accident. It is not known if the mechanical brakes were set on Railcar #3,
or if they were set at any time during the several months that Railcar #4 was
on the south spur and coupled with it.

Given
that Railcar #4 had no functioning brakes, was coupled between cars in which at
least one did not have the brakes set, and was available for use, a hazard
existed. Miners using the car and anyone working or traveling in the area would
be subject to the hazard of derailment or unintended movement of a very large,
50 foot long, railcar. If left on its own, Railcar #4 would not be controlled
and would likely derail. A railcar without functioning brakes, and most
importantly the resulting runaway car, would result in injuries to anyone
working in or around the car, and those injuries would be serious and likely fatal.
Therefore the violation is S&S.

ii.                  
Negligence

The Secretary alleges that the violation was the
result of high negligence. The Secretary argues that placing signs that say “DO
NOT FILL” on a railcar with defective brakes is not sufficient to comply with
the standard. The operator does not contest that the brakes were damaged, but
argues that it took steps to make exposed miners aware of the hazard. The mine
put signs on Railcar #4 to indicate that it should not be used, coupled the
railcar to other cars with functioning brakes, and did not fill it with sand.  

As a reasonably prudent mine operator, Superior
Silica should have known its failure to repair the brakes was a violation of a
mandatory standard and that the violation posed a significant danger to the
miners. The mine’s placement of signs on Railcar #4 warning miners not to fill
the car was an ineffective effort to comply with the standard. In Newtown
Energy , 38 FMSHRC 2033 (Aug. 2016), the Commission overturned a judge’s
finding that the use of a defective lock on a cathead should be considered as an
element of mitigation for negligence purposes. “Negligence is not diminished by
a miner’s clearly ineffective effort to comply with the safety standard.” Id.
at 2048 n.21. Here, mine management was aware the brakes on the car were
defective and, given its discussion with the railcar’s owner, knew it would be
some time before repairs were made. Therefore, Railcar #4 should have been removed
from service immediately by disconnecting it from other cars and disabling its
ability to be moved. The car should have been moved to the north spur
immediately following the March 2018 derailment and blocked against any
movement. The mine’s failure to do so was the result of high negligence.

iii.                
Unwarrantable
failure

The order was issued as an unwarrantable failure to
comply with a mandatory standard. The Secretary argues a number of factors support
a finding of unwarrantable failure, including that the operator knew the brakes
were damaged on Railcar #4, yet coupled it to an active string of railcars and
left it in its defective condition for several months. Since the car lacked
functional brakes, the Secretary asserts that the violation was extensive,
obvious, and involved a high degree of danger. The Secretary argues further
that because the car derailed and was damaged, the mine was on notice that greater
efforts were necessary to correct the condition. Coupling Railcar #4 with other
cars available for use shows that the mine understood the seriousness of the
condition.  

Superior
Silica argues that the violation does not amount to unwarrantable failure
because the mine did not ignore Railcar #4’s damaged brakes. The mine contends
it could not repair the damaged brakes due to an ownership dispute. Instead, Superior
Silica took reasonable steps to limit potential harm, including not filling the
railcar, trying to isolate the railcar, and providing warning signs. The mine
also states that the railcars were used infrequently. Although I agree that the
violation was the result of high negligence, I cannot find sufficient evidence
to support a finding of unwarrantable failure.

IO Coal requires
Commission Judges to consider a number of factors in addressing an
unwarrantable failure designation. First, is length of time
that the violation has existed. Following the March 2018 derailment, Railcar #4
was placed in the string of active railcars and remained between Railcars #3
and #5 until the June 23 accident. According to the mine, Railcar #4 was not
used and the string of cars was moved infrequently during that time. As the
Commission explained in Coal River Mining, LLC , 32 FMSHRC 82, 93 (Feb.
2010), even where the record does not permit the judge to make a conclusive
finding as to the duration of the condition, “imperfect evidence of duration in
the record should be taken into account.” Here, the inspector believed that
Railcar #4 was in the string of active railcars for the several months following
its derailment and the mine has not presented any evidence to refute that
suggestion but instead suggests that the car was not moved during that time
period. Thomsen explained that he was in the process of removing Railcar #4 so
that he could empty material from the railcars, but there is no evidence to
suggest when the other railcars had been filled. Therefore, the violation did
exist for the several months Railcar #4 remained on the active track, but it
may not have been used. So while the violation existed for several months, it
cannot be said to be extensive. Railcar #4 was on the track with two
cars coupled behind it and three in front, each 50 feet in length. I credit
Barrick’s testimony that the entire railcar and the attached railcars were
affected by the damaged brakes but I cannot say that the condition was
extensive, given that one car in the string was damaged and was coupled with
other cars that were not damaged.

Next, I must consider whether the operator has been
placed on notice that greater efforts were necessary for compliance. In this
case, the Secretary did not present evidence that the mine had been told to
correct the condition of the brakes or that it had been previously cited for
similar violations. Therefore, I do not agree that the mine was on notice that
greater efforts were required for compliance. I also cannot rely on the lack of
abatement efforts to support a finding of unwarrantable failure.  A lack of
abatement efforts may be excusable if the operator had a reasonable, good faith
belief that the condition did not exist. See IO Coal , 31 FMSHRC at 1356.
Here, the mine did not believe the condition continued to exist because they
had moved the car to a location that they believed would prohibit its use.

The Secretary argues that the condition
posed a high degree of danger because Railcar #4 lacked functional brakes to
hold itself in place and could have derailed following any movement. Tr. 228. Thomsen
explained that coupling Railcar #4 in the string of railcars on the south spur
was a safe place to keep it since the car was between two cars with operative
brakes and the railcars did not move for some length of time. However, the
evidence shows that the brakes were not set on Railcar #5 and the string of
railcars was available for use, increasing the degree of danger posed by Railcar

4. Although there was a high degree of danger associated with a railcar that

had no functioning brakes, it is not sufficient, based upon the facts here, to
alone support a finding of unwarrantable failure.

In this case, the condition was obvious to the miners
and mine management. Taft, the maintenance manager at the time, testified that
he could see Railcar #4 was damaged because the springs were out, the brake
shoes were off, the axle was not sitting down on the pin, and there was body
damage to the car. Tr. 117–18. In addition, Secretary’s Exhibit 16 contains
various photographs showing the brakes sheared off of Railcar #4. Sec’y Ex. 16,
9–10, 12, 15. While the condition of the car was obvious, the violation—that is,
leaving the damaged car on the tracks without repair— was not as obvious to the
mine, since they believed they had abated the violation by placing Railcar #4
in a location that would not require the brakes to be used.   The same can be
said for the knowledge of the violation. Here, both Taft and Thomsen,
supervisors at the mine, explained that they were aware of the defective
condition of the railcar. Tr. 116, 258 . Thomsen testified that he knew the
brakes were not functional because “[t]he levers were bent up on it . . . [the]
brake mechanism was bent.” Tr. 260–61.  While the mine should have known of the
existence of the violation, the fact that they believed they had remedied the
condition is a factor in determining the knowledge.

Even though the mine was negligent in not repairing
or removing the car from service as required by the standard, there is not sufficient
evidence in the record to conclude that the violation was the result of an
unwarrantable failure to comply.

II.     PENALTY

The principles governing the authority of Commission
Administrative Law Judges to assess civil penalties de novo for violations of
the Mine Act are well established. Section 110(i) of the Mine Act delegates to
the Commission and its judges “authority to assess all civil penalties provided
in [the] Act.” 30 U.S.C. § 820(i). Commission Judges are not bound by the
Secretary’s penalty regulations. Am. Coal Co. , 38 FMSHRC 1987, 1990
(Aug. 2016). Rather, the Act requires that in assessing civil monetary
penalties, the judge must consider six statutory penalty criteria: the
operator’s history of violations, its size, whether the operator was negligent,
the effect on the operator’s ability to continue in business, the gravity of
the violation, and whether the violation was abated in good faith. 30 U.S.C. §
820(i).

The
Secretary has proposed a penalty of $18,846.00 for the violation cited in
Citation No. 8860296, which alleges a failure to provide new task training to
Fernandez. I have considered and applied the six penalty criteria found in
Section 110(i) of the Act. The history of assessed violations has been admitted
into evidence and shows 20 violations by this operator in the 15-month period
prior to the issuance of the citation, two of which involve a similar standard.
Sec’y Ex. 24. I have addressed negligence and gravity in the discussion above
and have found that the violation was S&S, and the result of high
negligence and an unwarrantable failure to comply. The mine is medium-sized and
the parties agree that the citation was abated in good faith. The mine has
raised no defense of ability to pay, but the mine has filed for bankruptcy. Therefore,
I find that the proposed penalty of $18,846.00 is appropriate.

Next,
the Secretary has proposed a penalty of $20,940.00 for the violation cited in
Order No. 8860297, which alleges that Railcars #5 and #6 were not effectively
secured by either of their braking systems. In assessing a penalty, I have
considered and applied the statutory penalty criteria. According to the history
of assessed violations, there are no similar violations for this standard in
the preceding 15-month period. Sec’y Ex. 24. Negligence and gravity are
addressed above, with findings of high negligence, unwarrantable failure, and
S&S. I have considered the operator’s good faith abatement, size, and
ability to pay, and I find that the penalty of $20,940.00 is appropriate.

Finally,
the Secretary has proposed a penalty of $9,409.00 for the violation cited in
Order No. 8860298, which alleges that Railcar #4 did not have functional
brakes. In determining a penalty, I have considered and applied the six
statutory penalty criteria. The history of assessed violations shows no similar
violations for this standard in the preceding 15-month period. Sec’y Ex. 24. Negligence
and gravity have been addressed in the discussion above, and I have found that
the violation was S&S and the result of high negligence. The designation of
unwarrantable failure has been removed. The mine’s history, size, ability to
pay, and good faith abatement have been considered. Based on these findings, I assess
a penalty of $5,000.00.

Citation
No.

Originally
Proposed Penalty

Penalty
Assessed

Docket
No. CENT 2019-0171

8860296

$18,846.00

$18,846.00

8860297

$20,940.00

$20,940.00

Docket
No. CENT 2019-0133

8860298

$9,409.00

$5,000.00

TOTAL

$49,195.00

$44,786.00

III.  ORDER

Respondent
is hereby ORDERED to pay the Secretary of Labor the sum of $44,786.00
within 30 days of the date of this decision.

/s/
Margaret A. Miller

Margaret A.
Miller

Administrative
Law Judge

Distribution: (Certified U.S. First Class Mail)

Lindsay A. Wofford, U.S. Department of Labor, Office
of the Solicitor, 525 Griffin Street, Suite 501, Dallas, TX 75202

Joseph A. Fisher III, Jackson Walker LLP, 1401
McKinney, Suite 1900, Houston, TX 77010

Benjamin Rhem, Jackson Walker LLP, 100 Congress
Avenue, Suite 1100, Austin, TX 78701

[1] . At hearing,
Thomsen explained that he and Fernandez moved the spare car to the north spur that
same day prior to the accident. Thomsen indicated that during this process,
Fernandez operated the rail switch. Barrick explained that he was not told
during the investigation that Thomsen and Fernandez had successfully moved the
spare car prior to the accident nor was that fact included in the statement
Thomsen gave to the 110(c) investigator several months after the accident. See
Resp’t Ex. G.

[2] . Order No.
8860298 was originally issued as a Section 104(d)(2) order. At hearing, the
Secretary represented that the order had been modified to a Section 104(d)(1)
order.