Secretary of Labor v. GMS Mine Repair & Maintenance, Inc.

Plain-English summary

A hook clevis broke while GMS Mine Repair employees were using a mule to move a longwall shield at Bailey Mine, sending the hook 33 feet through the air and striking a miner. MSHA cited GMS under a 2006 safeguard that had been issued in writing to mine owner Consol after a different chain failure. Judge Priscilla Rae held that the safeguard could not be enforced against GMS because MSHA had never provided the separate contractor written notice or a compliance time as the regulation requires. She also found the safeguard facially invalid because it addressed a general chain-or-cable hazard rather than a mine-specific condition, gave no specific safe-distance remedy, and fixed no effective date. Finally, the accident involved a hook and clevis rather than a chain or cable and did not involve a hoist or mantrip, so the cited facts differed fundamentally from the safeguard. The judge vacated Citation No. 9074949 and dismissed the proceeding, eliminating the proposed $22,113 penalty.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1403 and 75.1403-1(b)
• Outcome: Citation No. 9074949 was vacated and the proceeding was dismissed.
• Key point: A mine-specific safeguard binds only an operator properly served with clear written notice, a specific remedy, and a compliance time, and it must closely match the later cited condition.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

TELEPHONE: 202-434-9950
/ FAX: 202-434-9949

February 3, 2020

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH     

ADMINISTRATION
(MSHA),

Petitioner,

v.

GMS
MINE REPAIR & MAINTENANCE, INC.,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. PENN 2019-0126

A.C.
No. 36-07230-493700

Mine:
Bailey Mine

DECISION AND
ORDER

Appearances:               Ryan
C. Atkinson, Esq., Office of the Solicitor, U.S. Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner

William
C. Means, Esq., Andrew J. Ellis, Esq., GMS Mine Repair & Maintenance, Inc.,
Bruceton Mills, West Virginia, for the Respondent

Before:                        Judge
Rae

I.                   
INTRODUCTION

A.     Statement of the
Case

This case is before me upon a
petition for assessment of civil penalty filed by the Secretary of Labor
(“Secretary”) pursuant to Section 105(d) of the Federal Mine Safety and Health
Act of 1977, as amended, (“Mine Act” or “Act”), 30 U.S.C. § 815(d). At issue is
one citation issued to Respondent GMS Mine Repair & Maintenance, Inc.
(“GMS”), under Section 104(a) of the Mine Act.

A hearing was held in Morgantown,
West Virginia, on January 14, 2020, at which time testimony was taken and
documentary evidence was submitted. I have reviewed all of the evidence at
length and have cited to the testimony, exhibits, and arguments I found
critical to my analysis and ruling herein without including a detailed summary
of the testimony given.

After consideration of the evidence,
I dismiss the Section 104(a) citation for the reasons set forth below.

B.      Stipulations

1. Consol Energy (“Consol”) is the owner/operator of the Bailey
   Mine. At the time that the citation at issue in this proceeding was served,
   Respondent GMS was an independent
   contractor performing services at said mine and was therefore an “operator” at
   said mine as the term “operator” is defined in Section 3(d) of the Mine Act,
   30 U.S.C. § 802(d).

2. Bailey
   Mine is a “mine” as defined in Section 3(h) of the Mine Act, 30 U.S.C.

§ 802(h).

3. Operations of GMS at the mine at which the citation was issued are subject to the jurisdiction of the Mine Act.

4. This proceeding is subject to the jurisdiction of the Federal
   Mine Safety and Health Review Commission (“FMSHRC”) and its designated
   Administrative Law Judges (“ALJ”) pursuant to Sections 105 and 113 of the Mine
   Act.

5. Payment of the total proposed penalty of $22,113.00 in this matter
   will not affect GMS’s ability to continue in business.

6. The
   individual whose name appears in Block 22 of the citation in contest was acting
   in an official capacity and as an authorized representative of the Secretary
   when the citation was issued, provided however that this stipulation should not
   be construed as an admission by GMS of culpability regarding the subject matter
   of said citation.

7. The
   Citation contained in Docket No. PENN 2019-0126 was issued and served by a
   representative of the Secretary upon an agent of GMS at the date, time, and
   place stated in the citation.

8. Exhibit
   “A” attached to the Secretary’s Petition in Docket No. PENN 2019-0126 contains
   an authentic copy of Citation No. 9074949 with all modifications or abatements,
   if any.

9. Although
   the parties disagree as to whether the application of 30 C.F.R. § 75.1403 is
   properly limited to hoists or mantrips, the parties stipulate that no hoist or
   mantrip (as those terms are used in 30 C.F.R. § 75, Subpart O) was involved in
   the accident which gave rise to this case.

Jt.
Ex. 1. [1]

The parties have also submitted the
additional joint stipulations:

1.         The service contract between
GMS and Consol (the owner-operator of Bailey Mine) contains provisions which
contractually obligate GMS to adhere to mandatory safety and health standards.

2.         Notices to provide safeguard
are not expressly mentioned within the text of the GMS-Consol contract;
however, GMS conceded that it is not manifestly unreasonable to construe the
aforementioned contractual obligation as including a duty of GMS to Consol to
be familiar with directives laid out in those notices to provide safeguard
which the Mine Safety and Health Administration (“MSHA”) has served on Consol
at the mine(s) where GMS performs services for Consol and, to the extent that
said notices are applicable to GMS’s assigned work, to adhere to those
directives.

3.         GMS has received from Consol a
summary of thirty-five notices to provide safeguard which MSHA served upon
Consol at the Bailey Mine from 1993 to present, one of which is Notice to
Provide Safeguard No. 7068632 (“Safeguard No. 7068632”) at issue in the case at
bar.

4.         During its site-specific
safety training and/or its annual refresher safety training of GMS personnel
who perform services at Bailey Mine, GMS does include discussions of notices to
provide safeguard.

5.         On August 7, 2018, at the
Bailey Mine, GMS personnel were attempting to use a one-man-operated piece of
equipment known as a “mule” (which is neither a mantrip nor a hoist within the
meaning of 30 C.F.R. § 75, Subpart O) to move a longwall shield a short
distance away from the mine face.

6.         The mule got stuck in place,
whereupon GMS personnel attached a cable to an anchor point in the mine roof in
an attempt to get the equipment unstuck.

7.         A hook clevis on the mule—to
which the cable was attached—broke, whereupon the hook traveled 33 feet through
the air and struck a miner.

8.         Upon investigating the
foregoing accident, MSHA issued three citations to GMS.

9.         One of the three citations
alleged that the condition of the hook clevis had deteriorated and therefore,
GMS had operated a piece of equipment which was in unsafe condition. During
and/or in conjunction with a citation conference, GMS opined that the
deteriorated part of the hook clevis was blocked from view by other parts of
the equipment. Nevertheless, GMS accepted responsibility, did not further
contest the citation, and paid the assessment for the same. Accordingly, that
issue is resolved and closed.

10.       Another of the three citations
alleged that GMS had violated the roof control plan by attaching a cable to
part of the roof control system. During and/or in conjunction with a citation
conference, GMS opined that the anchor to which the cable was attached was a
supplemental roof bolt in excess of the roof-bolting requirements. Nevertheless,
GMS accepted responsibility, did not further contest the citation, and paid the
assessment for the same. Accordingly, that issue is resolved and closed.

11.       Another of the three
citations, i.e., the one citation now at issue, alleges that GMS violated a
notice to provide safeguard. The specific notice to provide safeguard is not
mentioned in the body of the citation. The specific notice to provide safeguard
has since been identified as Safeguard No. 7068632.

12.       Within the Mine Act’s
definition of the term “operator,” GMS—as a provider of services at Bailey
Mine—is “an operator” at Bailey Mine separate and distinct from owner-operator
Consol.

13.       It is undisputed that no
authorized representative of the Secretary has ever advised GMS in writing of Safeguard
No. 7068632, nor did the Secretary ever fix a time within which operator GMS
could have addressed the content or validity of that specific safeguard notice
before the Secretary’s representative served GMS with the one citation which is
still at issue in this matter.

Jt.
Ex. 2.

II.                
BACKGROUND

On August 1, 2018, an accident
occurred at the Bailey Mine—an underground coal mine in Pennsylvania that is
owned and operated by Consol. Tr. 31; Jt. Ex. 1, 2. Subsequently, MSHA
conducted an investigation of the circumstances surrounding the accident. Tr. 31.
At the time of the accident and investigation, GMS was performing services at
the Bailey Mine as an independent contractor. Jt. Ex. 1.

After the accident investigation concluded
on August 7, 2018, MSHA inspector Robert Revi [2]
issued Citation No. 9074949 [3]
to GMS on the basis that GMS violated 30 C.F.R.

§ 75.1403 [4]
by failing to adhere to the mandate of Safeguard No. 7068632. Ex. P-1; Jt. Ex.

2. Safeguard No. 7068632, which was issued to Consol on February 13, 2006,
   states:

On September 22,
2005, employees were moving a belt drive motor into location for the new 9-H
section belt. They were pulling the drive motor into place with a 3/4 inch
cable laced through two sheave wheels . . . . The chain which was attached to
the sheave at the flat car broke, and a link from the chain flew into the track
chute and struck the victim in the face causing severe facial injuries. The
victim was approximately 25 to 30 feet away from the chain when it broke.

This is a notice
to provide the following safeguard:

When using
chains and or cables to move equipment into location all workers are to be
located in a position so that they will not be injured should any portion of
the chain or cable fail.

Ex.
P-4.

III.             
LEGAL
PRINCIPLES

An operator is strictly liable for Mine
Act violations. Nally & Hamilton Enter. ,

38 FMSHRC 1644, 1650 (July 2016) (citing Sec’y of Labor v. Nat’l Cement Co.
of Cal. ,

573 F.3d 788, 795 (D.C. Cir. 2009)). The Secretary bears the burden of proving
any alleged violation “by a preponderance of the credible evidence.” In re:
Contests of Respirable Dust Alteration Citations , 17 FMSHRC 1819, 1838
(Nov. 1995), aff’d sub nom. Sec’y of Labor v. Keystone Coal Mining Corp .,
153 F.3d 1096 (D.C. Cir. 1998) (citing Garden Creek Pocahontas Co. , 11
FMSHRC 2148, 2152 (Nov. 1989)).

Section 314(b) of the Mine Act provides
for safeguards that “inform[] the mine operator about conduct that is mandated
or prohibited . . . involving transportation of miners and materials.” Pocahontas
Coal Co., LLC , 38 FMSHRC 157, 157 (Feb. 2016). The Secretary effectuates Section
314(b) “by authorizing inspectors to issue safeguards on a mine-by-mine basis.”
Oak Grove Res., LLC , 37 FMSHRC 2687, 2688 (Dec. 2015); see also Big
Ridge, Inc. ,

37 FMSHRC 213, 214 n.4 (Feb. 2015) (noting that safeguards “are[,] in effect,
mandatory safety standards issued on a mine-by-mine basis” (citation omitted)).
Inspectors, as representatives of the Secretary, issue the safeguards in
writing to the operator, and must also “indicate[] a time by which the operator
must provide and subsequently maintain that safeguard.” Oak Grove Res., LLC ,
37 FMSHRC at 2688 (citing 30 C.F.R. § 75.1403-1(b)). An inspector may then issue
a citation to that operator for safeguard noncompliance. Oak Grove Res., LLC ,
37 FMSHRC at 2688 (citing Wolf Run Mining Co. v. FMSHRC , 659 F.3d 1197,
1204 (D.C. Cir. 2011)).

IV.             
FINDINGS
OF FACT AND CONCLUSIONS OF LAW

There are three issues that must be
addressed in this matter: (1) whether an independent contractor is bound by
safeguards issued to the owner / operator of a mine; (2) whether Safeguard No.
7068632 is facially valid; and (3) whether Safeguard No. 7068632 applies to GMS
based on the instant facts. For the reasons set forth below, the answer to each
question is “no,” and, therefore, Citation No. 9074949 must be vacated.

A.     Whether an
Independent Contractor Is Bound by Safeguards Issued to the Owner / Operator of
a Mine

“When ‘a violation of a regulation
subjects private parties to criminal or civil sanctions, a regulation cannot be
construed to mean what an agency intended but did not adequately express.”’ Energy
West Mining Co. , 17 FMSHRC 1313, 1317-18 (Aug. 1995) (quoting Phelps
Dodge Corp. v. FMSHRC , 681 F.2d 1189, 1193 (9th Cir. 1982)). The language
of Section 75.1403-1(b) clearly states that “the Secretary shall in writing
advise the operator of a specific safeguard which is required pursuant
to [Section] 75.1403 and shall fix a time in which the operator shall provide
and thereafter maintain such safeguard.” 30 C.F.R. § 75.1403-1(b) (emphasis
added). It is undisputed that the Secretary neither “in writing advise[d] [GMS]
. . . of a specific safeguard,” nor fixed a time for compliance with the
safeguard. Id. ; Jt. Ex. 2.

The Secretary argued that “mine-by-mine
basis” means safeguards are perpetually enforceable against all operators
present at the mine property, not just against the operator that was served
with the safeguard in writing. Tr. 14, 27-28. Further, counsel for the
Secretary agreed that, under this interpretation, once a safeguard is issued to
an operator, that safeguard could be in effect and enforceable against all
operators present at the mine for 20, 30, 40, 50 years, or even forever. Tr.
14-15. However, the Secretary admitted that there is no legal precedent—case
law, legislative history, or prior application of this interpretation—to
support such a position. Tr. 15-16. Furthermore, the Commission has never been
confronted with such an interpretation.

I find that the Secretary’s
interpretation is incorrect. The Commission has explained that issuing
safeguards on a “mine-by-mine” basis means only that the safeguards need to “address[]
a specific transportation hazard actually determined by an inspector to be
present and in need of correction at the mine in question.” Southern Ohio
Coal Co ., 14 FMSHRC 1, 9 (Jan. 1992) (“ SOCCO II ”). An interpretation
that permanently extends the scope of “mine-by-mine” to all operators at a mine
site goes against the express language of the regulation and has no
demonstrable support. Section 75.1403-1(b) clearly indicates that the Secretary
“shall in writing advise the operator ” of the safeguard, and says
nothing about the enforcement of safeguards against other distinct and separate
operators that were not advised in writing by the Secretary.

30 C.F.R. § 75.1403-1(b) (emphasis added); see also BethEnergy Mines,
Inc. , 14 FMSHRC 17, 23-24 (Jan. 1992) (“Section 75.1403-1(b) makes clear
that the safeguard criteria are not binding on any particular operator
unless, and until, that operator is given notice, in a written safeguard from
an authorized representative of the Secretary.” (emphasis added)); SOCCO II ,
14 FMSHRC at 7.

In addition, Inspector Revi testified
that, in his experience, mine inspectors typically issue safeguards after an
operator has received several violations of the same type and the inspector puts
the operator on notice. Tr. 26-27. Such activity by an operator would then justify
the issuance of a safeguard and, subsequently, validate the issuance of citations
for violating that safeguard—should that violative condition or practice
continue. Tr. 27. Inspector Revi’s testimony underscores the fact that a specific
operator is to be put on notice and bound by a specific safeguard, not any
independent contractor on the mine property at any time after the safeguard is
issued.

The Secretary also
argued that the contractual agreement between GMS and Consol obligated GMS to
adhere to the mandate of Safeguard No. 7068632 because that agreement required GMS
to comply with the Mine Act. Tr. 9, 48; Ex. P-2. It is true that GMS was contractually
required to “comply with the provisions of the [Mine Act] and the [r]ules and
[r]egulations applicable thereto,” and it is also true that GMS admitted it was
aware of all safeguards at Bailey Mine (including Safeguard No. 7068632). Ex.
P-2 at 6; Jt. Ex. 2. However, awareness is not equivalent to the express requirement
in Section 75.1403-1(b) that the Secretary provide written, individualized
notice to GMS. A private employment contract between a mine owner and an
independent contractor does not authorize the Secretary to enforce a safeguard
that was issued to the mine owner and is otherwise unenforceable against the
contractor.

In contrast to
the Secretary’s arguments, GMS argued that the Secretary’s interpretation runs
counter to the principles of due process because GMS lacked notice that the
Secretary would enforce Safeguard No. 7068632 without first advising GMS of
said safeguard in writing. Tr. 19, 50. Although I decline to address the
constitutional argument raised by GMS, some further analysis is warranted. First,
it is important to note that Safeguard No. 7068632 is not a regulation that has
gone through the rulemaking process; it is an entirely different exercise of
authority by the Secretary. See Pocahontas Coal Co., LLC , 38 FMSHRC at
165 (“Congress chose not to subject safeguard notices to the notice-and-comment
rulemaking required for mandatory standards.” (citing Wolf Run , 659 F.3d
at 1202-03)); see also Oak Grove Res., LLC , 35 FMSHRC 2009, 2011-12
(July 2013). Here, GMS is a separate and distinct legal entity from Consol, the
operator that received Safeguard No. 7068632 in writing. Jt. Ex. 2. Furthermore,
Safeguard No. 7068632 was issued more than 10 years prior to the issuance of
Citation No. 9074949, and GMS had no official notice or opportunity to comply
with that safeguard before being issued a citation. [5]
Ex. P-4.

Neither the Act
nor the safeguard regulation by its language includes any other entities but
the operator to which the safeguard was issued as being bound by that safeguard.
The Secretary’s interpretation, a new one at that, would lead to absurd results
should each safeguard bind any and all independent contractors, subcontractors,
and their successors in interest indefinitely. Therefore, the SOL’s new
interpretation is not to be afforded deference here. The language of Section
75.1403-1(b) is not ambiguous. Even if Section 75.1403-1(b) was ambiguous in
its coverage, the Secretary’s position would still fail as an unreasonable
interpretation of that regulation. I find that the Secretary’s position—which
the Secretary admitted is unsupported by precedent and has never been advanced
before—is not the authoritative or official position of the agency, but instead
a convenient litigation position that creates unfair surprise to GMS. “Congress,
when first enacting a statute, assigns rulemaking power to an agency and thus
authorizes it to fill out the statutory scheme,” and “when new issues demanding
new policy calls come up within that scheme, Congress presumably wants the same
agency, rather than any court, to take the laboring oar.” See Kisor v.
Wilkie , 139 S.Ct. 2400, 2413 (2019). The Commission and its judges have on
numerous occasions stated in unequivocal language that the Secretary should
engage in the proper rulemaking procedures to regulate the transportation of miners
and materials in underground coal mines. See, e.g. , Wolf Run , 659
F.3d at 1203 (citing SOCCO II , 14 FMSHRC at 16); cf. Tr. 46
(describing the threat of a chain or cable breaking as a possibility “at any
mine or any industry”).

In sum, only the
operator that was advised of the safeguard in writing may be held responsible
for implementing the remedial measures prescribed by that safeguard or
penalized for failing to do so. Therefore, Safeguard No. 7068632 is not
applicable to GMS.

B.      Whether
Safeguard No. 7068632 Is Facially Valid

In addition to Safeguard No. 7068632 not
applying to GMS because GMS was never advised in writing of that safeguard,
Safeguard No. 7068632 is also facially invalid.

To be valid, a
safeguard must identify a hazardous condition and specify a remedy. See Oak
Grove Res., LLC , 38 FMSHRC 1273, 1278 (June 2016); see also Am.
Coal Co. ,

34 FMSHRC 1963, 1969 (Aug. 2012). The safeguard must articulate the hazard and “conduct
required of the operator to remedy such hazard” with specificity. Oak Grove
Res., LLC ,

35 FMSHRC at 2012 (citing Southern Ohio Coal Co ., 7 FMSHRC 509, 512
(Apr. 1985) (“ SOCCO I ”)). Because the Secretary issues safeguards
“without resort to the normally required rulemaking process,” it is essential that
“a narrow construction of the terms of the safeguard and its intended reach” is
employed. [6]
Cyprus Emerald Res. Corp. , 20 FMSHRC 790, 808 (Aug. 1998) (quoting SOCCO
I , 7 FMSHRC at 512 (internal quotation marks omitted)). This is necessary
to balance the Secretary’s “unique authority to require a safeguard” and the
operator’s right to fair notice of the conduct required under the safeguard. BethEnergy
Mines, Inc. , 14 FMSHRC at 25. Safeguard No. 7068632 purports to specify the
hazard of miners being injured “should any portion of a chain or cable fail,”
and the specific remedy that miners “be located in a position so that they will
not be injured.” Ex. P-4. However, I find that Safeguard No. 7068632 is
facially invalid for three separate reasons.

First, Safeguard
No. 7068632 is invalid because the hazard it purports to address—the danger of
a chain or cable breaking—is not based on the “consideration of the specific
conditions at the particular mine.” Cyprus Plateau Mining Corp. , 16
FMSHRC 1604, 1607 (Aug. 1994) (citing SOCCO II , 14 FMSHRC at 9)
(internal quotation marks omitted). “The hazard posed by the use of unsafe
equipment,” such as a broken chain or cable, “does not arise from conditions specific
to particular mines and thus is not properly addressed by issuance of a
safeguard.” Id. But see Oak Grove Res., LLC , 35 FMSHRC at
2013 (citing SOCCO II , 14 FMSHRC at 8) (reiterating that a safeguard is
not per se invalid “if it addresses conditions that exist in a significant
number of mines” (internal quotation marks omitted)). However, this
condition—hoisting men or materials—applies to every mine in the entire
country, which is entirely too broad to be the subject of a safeguard. The
following exchange between GMS counsel and Inspector Revi at the hearing
demonstrates why the hazard that Safeguard No. 7068632 attempts to address is too
broad to be covered by a safeguard:

GMS Counsel:            Okay.
The condition that is described in the safeguard about using chains or cables
to move equipment, does that present a hazard wherever it may be found?

Inspector Revi:            If
there’s stored energy in that cable or chain, yes. Absolutely. Anything that
has tension on it, if it breaks, it’s going to fly somewhere, but nobody knows
where.

GMS Counsel:            And
that’s true at Bailey [Mine]. Right?

Inspector Revi:            That's
true at any mine or any industry.

GMS Counsel:            At
any mine anywhere, that’s true?

Inspector Revi:            What,
that this could happen?

GMS Counsel:            Yes.

Inspector Revi:            Absolutely.

Tr. 45-46.

Second, Safeguard
No. 7068632 is invalid because it contains a nonspecific remedy that does not
adequately address how the operator must adhere to its mandate. Cf. Am. Coal
Co. ,

34 FMSHRC at 1979 n.5 (finding that a safeguard requiring equipment be mounted “in
a manner that provides ‘maximum’ clearance” was insufficiently specific and
facially invalid). Inspector Revi’s testimony makes clear that Safeguard No.
7068632 does not provide a specific remedy, as required by law. Although no
exact distance was specified in Safeguard No. 7068632, the remedial “safe”
distance that miners were to be located should have been greater than the 25 to
30 feet that the injured miner was standing during the 2006 incident. Tr. 45;
Ex. P-4. In the instant matter however, the miner that was struck was standing
33 feet away. Tr. 44-45; Ex. P-1. Again, even Inspector Revi testified that he
was unsure what distance would have been appropriate under the direction of the
safeguard and in fact stated: “I guess with hindsight . . . would 40 feet be
far enough? I don’t know.” Tr. 45.

Third, Safeguard
No. 7068632 is facially invalid because it never fixed a time for compliance. Cyprus
Emerald Res. Corp. , 20 FMSHRC at 808 (quoting SOCCO II , 14 FMSHRC at
7) (stating that “a safeguard ‘may be enforced at a mine only after the
operator is advised in writing that a specific safeguard will be required as
of a specified date ’” (emphasis added)); Jt. Ex. 2.

Consequently, Safeguard
No. 7068632 is facially invalid because it is neither sufficiently specific as
to the hazard identified, nor the specific remedy to be undertaken.

C.     Whether
Safeguard No. 7068632 Is Applicable to GMS on the Instant Facts

Finally, in
addition to the conclusions set forth above, the specific hazard envisioned by Safeguard
No. 7068632—and mandatory remedial directive—is not applicable to GMS under the
factual circumstances described in Citation No. 9074949.

A citation that
alleges a violation of a safeguard “should be vacated if the conditions ‘differ
fundamentally in nature, cause and remedy’ from those in the underlying
safeguard, such that the operator lacked notice that the cited conduct was
prohibited.” Oak Grove Res., LLC , 38 FMSHRC at 1278 (quoting BethEnergy
Mines, Inc. , 15 FMSHRC 981, 986 (June 1993)); see also SOCCO I , 7
FMSHRC at 512-13. Further, safeguards “must be strictly construed in
determining whether a violation has occurred.” Cyprus Cumberland Res. Corp. ,
19 FMSHRC at 1785 (citing SOCCO I , 7 FMSHRC at 512).

Here, the conditions
cited in Citation No. 9074949 differ fundamentally from those in Safeguard No.
7068632. The equipment that failed here, a hook and hook clevis, was part of
the 20-ton Pettito Mule, not a portion of a separate “chain or cable” that was
expressly envisioned by Safeguard No. 7068632. Tr. 8, 34, 42, 44, 53; Exs. P-1,
P-4; Jt. Ex. 2. Inspector Revi expressly testified that no chain or cable was
used during the August 2018 accident at Bailey Mine. Tr. 44. Further, Inspector
Revi testified that the root cause of the hook failure was the deterioration of
the mine road where the Pettito Mule was stuck. Tr. 8, 34, 37, 39-40. Nothing
in Safeguard No. 7068632 applies in any way to the maintenance of the mine road
or to poor road conditions. Finally, the parties stipulated that neither a
mantrip nor a hoist was involved in this accident. Jt. Ex. 2. Therefore, even
if Safeguard No. 7068632 was otherwise valid and applicable to GMS, the facts
do not support a finding that GMS violated Safeguard No. 7068632—if the
safeguard is strictly construed.

V.                
CONCLUSION

In sum, because Safeguard No. 7068632 (1)
is facially invalid, (2) differs fundamentally from the instant circumstances,
and (3) is unenforceable against GMS, Citation No. 9074949 must be vacated.

ORDER

Consistent with
this Decision, IT IS ORDERED that Citation No. 9074949 is VACATED .
Accordingly, these proceedings are DISMISSED .

/s/
Priscilla M. Rae

Priscilla M. Rae

Administrative
Law Judge

Distribution:

Ryan Atkinson,
Office of the Solicitor, U.S. Department of Labor, 170 S. Independence Mall
West, Suite 630E, Philadelphia, PA 19106

William C. Means,
Andrew J. Ellis, GMS Mine Repair & Maintenance, Inc., 224 Moyers Road,
Bruceton Mills, WV 26525

/smp

[1] In this
decision, the abbreviation “Tr.” refers to the transcript of the hearing. The
Secretary’s exhibits are numbered Ex. P-1 to P-8. In addition, the Secretary
submitted the Respondent’s assessed violation history report as Ex. P-17. The
Respondent did not file any exhibits. The joint stipulations are referred to as
Jt. Ex. 1 and Jt. Ex. 2.

[2] Revi has been an
MSHA employee for eight years and serves as a certified mine inspector. Tr. 23.
Prior to his employment with MSHA, Revi was employed by Consol for ten years, was
employed by Emerald Mine, and was employed by GMS. Tr. 24. Revi has received
training at the National Mine Health and Safety Academy in Beckley, West
Virginia—including accident investigation training—and holds various licenses
and certifications related to mining. Tr. 24. In total, Revi has approximately
20 years of coal mining experience. Tr. 24-25.

[3] The narrative
portion of Citation No. 9074949 states:

An accident occurred at Bailey Mine in
the 6J Longwall tear down between the 2/3 crosscut at spad 1+75, area on August
1st, 2018 injuring one miner. The Pettito Electric mule was being used to
recover shield from the longwall face when it got stuck in the number 3
intersection at spad # 1+75. In the process of attempting to free the mule, the
hook and hook clevis broke. The hook and hook clevis was propelled a distance
of 33 feet striking a miner in the head.

Ex.
P-1.

[4] Mirroring
Section 314(b) of the Mine Act, this regulation states “[o]ther safeguards
adequate . . . to minimize hazards with respect to transportation of men and
materials shall be provided.” 30 C.F.R. § 75.1403; see also 30 U.S.C. §
874(b).

[5] Again,
Inspector Revi’s testimony that safeguards are typically issued after an
operator has committed several violations of the same type—and the operator is
put on notice before the safeguard is issued and enforced—supports GMS’s
argument that it had no fair notice of, or chance to comply with, Safeguard No.
7068632. Tr. 26-27.

[6] The Commission
has reaffirmed this principle from SOCCO I multiple times. See Black
Beauty Coal Co. , 38 FMSHRC 1, 2 (Jan. 2016); see also Oak Grove Res., LLC ,
37 FMSHRC at 2690; Cyprus Cumberland Res. Corp. , 19 FMSHRC 1781, 1785
(Nov. 1997); United States Steel Mining Co., Inc. , 15 FMSHRC 2445, 2447
(Dec. 1993); Green River Coal Co., Inc. , 14 FMSHRC 43, 48 (Jan. 1992).