Secretary of Labor v. Bardo Mining, LLC

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Bardo Mining for loose and deteriorating roof, failure to set automatic temporary roof supports firmly against the roof, inadequate dust-control examinations and water sprays, and exposed moving machine parts. Judge Richard L. Sippel affirmed all nine litigated citations and their S&S designations. He found high negligence where Bardo continued roof bolting despite knowing its equipment could not reach and firmly support the roof, and moderate negligence on the remaining items with location, visibility, or temporary-guard mitigation. The Judge reduced several proposed penalties but assessed $65,177 for the litigated citations. He also approved a six-citation settlement, including two vacated citations, and ordered total payment of $73,799.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a), 75.220(a)(1), 75.362(a)(2), 75.370(a)(1), and 75.1722(a)
• Outcome: Nine litigated citations were affirmed, six other citations were settled, and total penalties of $73,799 were assessed.
• Key point: Existing roof bolts, straps, cribs, or makeshift guards do not satisfy the Mine Act when obvious deterioration, unsupported bolting operations, deficient dust controls, or exposed moving parts continue to endanger miners.

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: 202-233-3889
/ FAX: 202-434-9949

September 18,
2015

SECRETARY
OF LABOR,

MINE SAFETY AND HEALTH   

ADMINISTRATION (MSHA),

Petitioner,

v.

BARDO
MINING, LLC,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2008-570

A.C.
No. 15-18694-136543

Mine:
Bardo
No. 1

DECISION

Appearances:               Angele
Gregory, U.S. Department of Labor, Office of the Solicitor, Nashville,
Tennessee, for the Petitioner

LaTasha
Thomas, U.S. Department of Labor, Office of the Solicitor, Nashville,
Tennessee, for the Petitioner

Thomas
Grooms, U.S. Department of Labor, Office of the Solicitor, Nashville,
Tennessee, for the Petitioner

James Bowman,
Bowman Industries, Midway, West Virginia, for the Respondent

George Bowman, Bowman
Industries, Midway, West Virginia, for the Respondent

Before:                                    Judge
Sippel

Background

This proceeding was
commenced by the Secretary of Labor, United States Department of Labor. It
seeks civil money penalties for violations of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801, et seq. (“Mine Act”). An evidentiary hearing set
by the Federal Mine Safety and Health Commission (FMSHRC) was held in Cumberland,
Kentucky, with Administrative Law Judge Richard L. Sippel presiding.

Respondent Bardo
Mining, LLC, (“Bardo”) owns and operates underground coal mine Bardo No. 1 in
Harlan, Kentucky. The charges for decision consist of nine citations which were
issued incident to a federal mine safety inspection.[1] For the reasons
stated below, the Presiding Judge affirms all Citations, with corresponding
levels of gravity, negligence, and mitigation, and imposes civil penalties, as
modified, totaling $73,799.00.

FINDINGS
OF FACT

The Mine Safety
and Health Administration (MSHA) conducted an inspection of Bardo’s Mine No. 1 on
November 5, 2007, and thereafter. Findings of the inspection are as set forth below.

Citation
No. 7502246

Defective
Structural Supports

[T]he roof, face
and ribs of areas where persons work or travel shall be supported or otherwise controlled
to protect persons from hazards related to falls of the roof, face or ribs and
coal or rock bursts. 30 C.F.R. § 75.202(a).

On December 5, 2007,
MSHA Inspector Kevin Doan[2]
issued Citation No. 7502246. He observed and reported draw rock[3] hanging
from a roof above the track haulageway at the Bardo Mine. Tr. I at 59-60.[4] The Citation
provides:

Persons working
or traveling along the track haulage way are not protected from roof falls. Loose
and overhanging draw rock was apparent between crosscuts 4 and 6 on the track
haulage way parallel to the number 6 belt conveyor. The draw rock is from 1 to
4 inches thick and is above the travel way used by miners. The Bardo mine uses
open top type mantrips.

GX 9. This Citation designated
violations of 30 C.F.R. § 75.202(a). Inspector Doan designated the risks in this
Citation as significant and substantial, caused by Bardo’s moderate negligence,
and reasonably likely to result in lost workdays or restricted duty. GX 9.

Inspector Doan rode
a rail runner mantrip[5]
into the mine. Tr. I at 64. On the return trip, he noticed loose draw rock along
the trackway. Tr. I at 65. Doan stopped the mantrip and had the rock taken
down. Tr. I at 67. He and miners used a four-foot steel bar to scale the roof
and remove the draw rock. Tr. I at 68-69. Doan stated that he issued the Citation
because “if [this rock] hit a person, they would be injured, and it’s obviously
delaminated, separated from the overlying roof strata, so it’s just a question
of when before it actually comes all the way down.” Tr. I at 67. Inspector Doan
noted that this condition encompassed several pieces of rock “through a two
crosscut area between crosscut No. 4 and crosscut No. 6.” Id. He
estimated that the loose draw rock was spread out across an area of 120 feet along
the trackway. Tr. I at 68-69. The affected area would be traveled at least six
times a day. Tr. I at 70-71.

The Citation noted that
injury was reasonably likely to occur from this condition. Tr. I at 73; GX 9. Given
the frequency with which miners traverse the area and the amount of rock that had
already separated from the roof, Inspector Doan considered it reasonably likely
that a piece of rock could fall on someone in the mantrip and cause an injury. Tr.
I at 73. He noticed several areas in the 120-foot area of the two crosscuts
where the rock had separated and was hanging from the roof over the track. Tr.
I at 73, 81. He removed a variety of large and small rocks and estimated
that the largest rock that was pulled measured four feet by three feet and a
few inches thick. Tr. I at 80, 82, 147. He estimated that the largest rock
weighed 325 pounds, while the smallest rocks weighed five to six pounds. Tr. I
at 76, 148, 150. He characterized this condition as significant and substantial
and reasonably likely to result in lost workdays. Tr. I at 76, 148. Id.

Inspector Doan found
moderate negligence. Tr. I at 76. He overlooked the condition on his way into
the work section, but noted it as he exited:

The condition
was obvious but it could have been overlooked on the way in. For instance I
traveled under it as we discussed and that would be an extenuating
circumstance, or I thought that it . . . didn’t qualify as high negligence . .
. .

Tr. I at 76-77. He concluded that
the condition had existed for several shifts prior to his examination. Tr. I at
77, 81. He recognized that “[w]eathering of rock and the separating of
rock . . . can happen quickly, but [because] this area was quite a distance
from the face, it had been developed for some time.” Tr. I at 77. The condition
had not recently developing because there were multiple pieces of draw rock and
the breaks were not fresh. He concluded:

If you see a
piece of rock that is obviously fresh . . . and if you have fresh rock dust on
the floor and you see small pieces or flakes of rock on the floor on top of
rock dust, that would indicate that it had happened very recently.

Tr. I at 120. The mine did not
have overhead lighting, but it did have directional lighting from miners’ cap
lamps and lights on the mantrip. Tr. I at 124. Either the preshift examiner or
the section foreman who would travel out with his crew at the end of the day
should have seen the hanging rock that Inspector Doan saw as he came out. Tr. I
at 78, 84-85.

On cross-examination,
Inspector Doan agreed that the Bardo mine was not required by the terms of its
roof control plan to install straps without adverse roof conditions. Tr. I at

86. He agreed that Bardo installed five roof bolts per row, which exceeds the
    four-bolt minimum required by the plan. Tr. I at 93. Given the location of the
    roof bolts and the metal straps that secure the roof, the maximum width of a fallen
    piece of draw rock would be four feet. Tr. I at 98.

The Citation, however,
was not issued for a violation of Bardo’s roof control plan. Tr. I at 100. The
rock was cantilevered, laying atop a metal strap and supported against the roof
at one end but hanging down on the other end. Tr. I at 104-06. Inspector Doan determined
that rock would fall if those mining conditions continued. Tr. I at 105. Due to
the cantilevering, he did not notice the hanging draw rock on his way into the
work section, but he did notice it on his way out of the mine. Tr. I at 105-06.
He conceded that a supported loose roof does not need to be taken down, provided
“it’s adequately supported . . . with wire mesh or some other type of roof
support.” Tr. I at 106.

Bardo took only eight
minutes to abate the condition. Tr. I at 108-10. Inspector Doan, the Bardo Superintendent,
and the rail runner operator simply pulled down loose rock to abate the
condition. Tr. I at 115, 123. Inspector Doan believed that these conditions
existed for some time and the mine operator had opportunity to correct the
conditions. Tr. I at 113.

Superintendent Shepherd[6] testified
that he had accompanied Inspector Doan on his examination of the Bardo Mine. Tr.
I at 129. They rode the rail runner into Bardo’s work section. On their return,
Inspector Doan observed loose draw rock hanging above the track. Id. Mr.
Shepherd pointed out that the track entry was supported by fully grouted 5-foot
pins, straps, and some cribs. Tr. I at 130. Mr. Shepherd, like Inspector Doan, failed
to notice the loose draw rock while traveling into the mine. Id. Mr.
Shepherd described the size of the rocks as “little small cracks [which] wasn’t
really thick.” Tr. I at 130-31. He thought the roof was adequately supported
with the straps that were in place. Tr. I at 131.

But, Mr.
Shepherd further testified that he found it difficult to pull down the draw
rock, observing: “Some of it was hard to break loose, because that laminated
stuff is like sandstone rock.” Tr. I at 131. The rock “really wasn’t what you
would say hanging down, but you could tell it dropped down a little.” Tr. I at 133.
Estimating size, he testified: “I would say anywhere from 2 inches wide to 6
inches wide—and . . . probably 2 inches thick to maybe 4 inches thick . . . and
length maybe 2 foot, 3 foot.” Tr. I at 134. He stated that because of the
supplemental support, the roof bolts were separated by three to four feet. Id.
He estimated the smaller pieces of rock to be about two inches wide and one to three
feet long. Id.

On
cross-examination, Mr. Shepherd confirmed that he saw rock hanging from the
roof. Tr. I at 136. He testified that it was separated one inch from the roof. Id.
Incredibly, he did not believe that a rock that is three feet by four inches would
hurt someone. Tr. I at 139-40. He also thought that a rock measuring two to three
feet long, two inches thick, and two inches wide would weigh 15 to 20 pounds. Tr.
I at 141. Mr. Shepherd believed that defective roof conditions could have occurred
between the preshift examination, which occurred at 4:00 a.m., and 1:40 p.m.
when Inspector Doan issued the Citation. Tr. I at 142.

Citation
No. 7522909

Failure
to Follow Roof Control Plan

Each mine
operator shall develop and follow a roof control plan . . . that is suitable to
the prevailing geological conditions, and the mining system to be used at the
mine. Additional measures shall be taken to protect persons if unusual hazards
are encountered. 30 C.F.R. § 75.220(a)(1).

On November 6,
2007, Inspector Kenny Dixon[7]
conducted an earlier inspection at the Bardo Mine No. 1. Tr. I at 160. He
issued Citation No. 7522909, citing Bardo’s violation of its roof control plan which
is required by § 75.220(a)(1). Tr. I at 163; GX 1; GX 10. Bardo had failed to
comply with its roof control plan when its roof bolter machine installed roof
bolts without the ATRS[8]
placed firmly against the mine roof in the No. 5 heading.[9]

The Citation
resulted from an improper use and application of a twin-head roof bolter used
to install bolts in the roof of a mine. Tr. I at 163. The twin-head feature refers
to two separate heads, one on each side. Id.; see also GX 19. Each
head has a halo ring to provide temporary roof support while operators install
bolts. Tr. I at 165. In an area that has been mined and is not yet supported by
roof bolts, mine operators will use a twin-head roof bolter to provide
protection and support of the mine roof while operators are installing roof
bolts. Tr. I at 167. The halo rings are a part of an ATRS that comes into
contact with the mine roof to buttress support as the operators install roof
bolts. Tr. I at 166-68. The equipment includes a “canopy” under which the operators
stand for safety while installing. Tr. I at 168-69.

Inspector Dixon
watched a continuous miner take a cut out of the No. 5 heading. Tr. I at 171.
It was removed from the area soon after the coal was cut. Id. He then observed
the twin-head roof bolter while it was in operation. Tr. I at 172. He noticed
that the halo rings had extensions installed which allowed them to reach higher.
Id. The extensions were mounted directly on top of the halo rings. When
he came upon the pinner[10]
he saw it was equipped with 24-inch extensions. Tr. I at 173. Since this
machine only extends to a certain height that will reach and contact the roof, extensions
permit reaching higher while supporting the roof. Tr. I at 173-74.

The mine’s roof control plan calls for
the ATRS to be set firmly against the roof while bolting. The machine must also
be compatible with height needs. Tr. I at 174; GX 15. According to the Bardo
roof control plan:

During
bolting operations the ATRS shall be set firmly against the mine roof at a
distance not to exceed 5 feet from the last row of installed roof bolts . . . .
The controls to position and set the ATRS shall be located where they can only
be operated from beneath permanently supported roof and the ATRS is placed
firmly against the mine prior to drilling and installing roof bolts.

GX
15A.

Inspector Dixon noticed that the right-side
ATRS was not in contact with the mine roof. Tr. I at 177. The left-side was
able to swivel back and forth because only one part of it was contacting the
roof. Id. The extensions had four metal blocks, measuring from four to six
square inches around each ring which were the blocks that were supposed to be in
contact with the roof. Tr. I at 178. On the right side of the pinner, none of
the blocks contacted the mine roof; on the pinner’s left side, only one of the
four blocks was in contact with the mine roof: “The one block on the front of
the machine was touching the mine roof, [but] the two on the sides and one in
back were not in contact with the mine roof at all.” Tr. I at 178-79. In
addition, the roof bolter operators had 4-inch crib blocks under the stab jack[11] of the drill
head to further increase the height. Tr. I at 179.

Inspector Dixon found it to be a hazard
for the roof bolter to be in use while the pinner’s halo rings were not flush with
the roof, which exposed the roof bolter operators to an unsupported mine roof. Tr.
I at 179-80. There also was the added risk of the mine roof falling in on them.
Tr. I at 180. He ordered the miners to stop the bolting process. Id. By
this time, they had already installed two roof bolts. Id. The operator
on the left side had installed an outside bolt and was in the process of installing
his inside bolt to complete the sequence. Id. Next, Inspector Dixon took
height measurements around the pinner. Tr. I at 181. He determined that
extensions on the bolter could not reach the roof. Tr. I at 183. Bardo needed to
obtain longer extensions or ramp up[12]
equipment to effect a shorter mine height for bolting the roof. Tr. I at 183-84,
187.

Inspector Dixon noticed that ramping up
had appeared in other entries: “There [were] ridge lines along the ribs where
it appeared that they had . . . bolted and then later took that bottom layer
out. There [were] also some headings across the section . . . where they had started
ramping back up.” Tr. I at 184-85. He noticed that ramping up had occurred in
both the No. 4 and No. 2 entries, and each had roof heights where the pinner
could not have reached the roof. Tr. I at 187. The evidence in these other
areas show that there had been ramping up, which was proof that Bardo knew ATRS
could not reach the top. Id.

Inspector Dixon told Superintendent
Shepherd and Section Foreman Steve Crouch that he would be issuing a citation. Tr.
I at 188, 228. He testified that neither the No. 5 nor the No. 3 headings[13] were ever
bolted, because “the operator could not obtain extensions to put on the machine
to reach the top; therefore, they literally had to move the section out of that
area because they didn’t have anything capable of bolting that mining height.” Tr.
I at 188. Bardo tried to replace the 24-inch extensions with 30-inch extensions
to reach the roof heights, but even the 30-inch extension did not reach the
roof. Tr. I at 188-89.

The Citation was marked “reasonably
likely,” as it presented a hazard to miners traveling under the unsupported roof
that would likely result in an injury. Id. The draw rock cracks and test
holes that Dixon observed in the roof further indicated that this was a
substandard roof condition. Id. He located a test hole in the
intersection where the bolt machine was sitting, while he saw draw rock “all
over the section.”[14]
Tr. I at 190. In his notes, the Inspector recorded that he detected draw rock
cracks between two and six inches long in various test holes across the section.
Tr. I at 248. These conditions increased the danger because the “ATRS won’t
contact the roof and that [shows] the potential of this draw rock falling on
one of the roof bolter operators.” Tr. I at 190. The Inspector designated this
Citation as permanently disabling since broken bones and crushing injuries were
expected from a roof fall in this area. Tr. I at 190-91. The Citation stated
“significant and substantial,” as the condition “created a risk to miners that
would result in a significantly substantial injury to a miner.” Tr. I at
192-93. He designated the condition as “high negligence.” Ridges were left on
rib lines and the operator knew those facts or should have known that this condition
existed. Tr. I at 193. Inspector Dixon concluded that the Section Foreman
should have discovered this condition during his on-shift examination. Tr. I at

194. [15]

Inspector Dixon further explained that
the phrase “firmly against the roof” does not provide a precise definition of “firm”
as far as the degree of pressure that the ATRS should have against the mine
roof. “Tech support recommends a thousand pounds per square inch on the ATRS, but
firm does mean position affixed to the top.” Tr. I at 207. When Inspector Dixon
checks for whether an ATRS is firmly against the mine roof, he uses a bar, or will
test by hand to see if the ATRS can be moved. Tr. I at 209.

He recollected the roof being flat with
no major rolls. Tr. I at 210. It was only when he arrived in the area and saw
that the pinner was not touching the roof after three bolts had been installed,
Inspector Dixon issued the Citation. Tr. I at 240. He noted that a canopy in
use afforded some protection. Tr. I at 246.

Superintendent Shepherd
had accompanied Inspector Dixon on the inspection. Tr. I at 255. Mr. Shepherd
estimated that the height of the seam, which was a double seam, measured
between eight and nine feet high. Tr. I at 256. He testified that the mine
ramped on the bottom seam so that the bolt machine could reach the top. Tr. I
at 257. He estimated that the mine had “probably ramp[ed] up 20 inches or
better.” Tr. I at 262.

Mr. Shepherd recalled
that three of the four pegs on the extension attached to the halo ring touched the
roof. Tr. I at 259. He confirmed that both 18-inch and 24-inch extensions were
used on the ATRS. Tr. I at 258. He and Inspector Dixon disagreed. “We
had . . . a little bit of disagreement because he said it wasn’t reaching the
way it should, and it—it was touching. I thought it was touching.” Tr. I at

260. On cross-examination, Mr. Shepherd acknowledged that he did not take notes
     on the day of the inspection. Tr. I at 265. There were no photos of the condition
     presented to the Court.

Citation
Nos. 7522914, 7522917, and 7558110

The roof, face
and ribs of areas where persons work or travel shall be supported or otherwise
controlled to protect persons from hazards related to falls of the roof, face or
ribs and coal or rock bursts. 30 C.F.R. § 75.202(a).

Inspector Dixon
issued Citation Nos. 7522914, 7522917, and 7558110 on November 8, 2007. As noted,
this is a roof control standard that requires adequate support and control of
the mine roof, face, and ribs. Tr. I at 269.

Citation
No. 7522914

Inspector Dixon issued
this Citation after observing two pieces of rock hanging from the ceiling over the
No. 5 conveyor belt. Tr. I at 271-72. One measured “4 feet in length by 4 feet
in width by 8 inches thick.” The second measured “4 and a half feet in length
by 2 and a half feet in width by three inches thick.” Tr. I at 269; GX 3. Both
portions of rock had broken from the mine roof despite installation of metal
straps. Tr. I at 272-73. The bolt supporting two metal straps installed in the
area had dislodged, leaving about an eight-inch gap between a bolt plate and roof.
Tr. I at 273. Inspector Dixon observed: “[T]he material around this bolt and
these straps had broken away and actually had [fallen] out leaving this bolt
and bearing plate approximately 8 inches from the mine roof.” Tr. I at 274. Draw
rock had dislodged from the roof; only a strap catching a corner of rock was
holding it up. Id. A metal strap alone was holding up the rock. Tr. I at
275.

Inspector Dixon
determined that the portion of roof hanging between two straps was hazardous. Tr.
I at 276. The rocks hung over the No. 5 belt and extended to the belt’s off
side. Tr. I at 277.[16]
That side of the belt is traversed twice daily by an on-shift examiner. Belt
shovelers also clear coal and perform rock dusting on both sides of the belt. Id.
Mr. Dixon also reported that other portions of the roof in that area had fallen,
showing additional roof problems. Tr. I at 277-78.

The Citation was
designated significant and substantial with the notation that the condition was
reasonably likely to cause a permanently disabling injury. Moderate negligence
was found. GX 3. The condition presented a hazard that was reasonably likely to
result in severe crushing-type injuries or broken bones. Tr. I at 278. These
roof conditions should have been discovered during an on-shift examination. Tr.
I at 279. He concluded that “with the examination of the belt lines, the
operator knew or should have known that this condition existed.” Tr. I at 279-80.
To abate the Citation, Bardo installed cribbing and wooden cross collars that
were placed to hold the draw rock up. Tr. I at 280. When pressed, Mr. Dixon
recalled that some cribs may have been present during his inspection on the
walkway side of the belt against the rib. Tr. I at 284. But nothing more was
noted than a non-conclusive “may have.”

Benny Hensley, a
certified surface and underground foreman/instructor, and Superintendent Shepherd
testified for Bardo. Mr. Hensley was employed by Bardo. He worked 32 years in
the mining industry as a surface and underground foreman. Tr. I at 287-88.

Mr. Hensley
testified that when Inspector Dixon inspected the mine, Bardo was using 5 foot
resin fully grouted roof bolts, with metal strapping installed in the roof. Tr.
I at 288. Cribs were installed on the off side of the belts. Tr. I at 289. Fewer
people move along the off side, these being the belt shovelers and rock dusters.
Id. The No. 5 belt had an entry width of 18 to 20 feet, while the belt
itself was 36 inches wide. Id. Mr. Hensley built a double row of cribs
on the wide side of the belt and a single row of cribs on the off side. Tr. I
at 290. Cribs were built on four-foot centers and spaced approximately three
feet from each other. Id. He did not know how much weight the cribs
could hold but knew they were said to be very strong. Tr. I at 292.

Mr. Shepherd
accompanied Inspector Dixon at the time this Citation was issued. He recalled
the dangling roof over the top of the No. 5 belt. Tr. I at 293. He also recalled
that a bolt and a strap were holding the dangling roof. Tr. I at 294. He
confirmed that Bardo had abated the Citation by installing cross collars. Tr. I
at 293-94.

Citation
No. 7522917

Inspector Dixon also
issued Citation No. 7522917. He cited another roof control issue and charged another
violation of § 75.202(a). GX 5. A portion of the mine roof measuring 12 feet in
length by 6 feet in width, and ranging from 6 to 8 inches thick, “had busted
and fallen out from between the bolts in this area.” Tr. I at 296-97. The mine
roof in this area “had also deteriorated and there [were] several visible vertical
cracks.” Tr. I at 297. The cracks were one-eighth inch to one-half inch wide, and
loose material had fallen between the bolts. Tr. I at 297-98, 306. Inspector
Dixon noted that persons would be in this area at least twice daily and belt
shovelers would clean up there throughout the day. Tr. I at 299, 307-08.

Defects
specified were “reasonably likely” to cause a “permanently disabling” injury. Tr.
I at 299. Inspector Dixon determined “moderate negligence” because on-shift examinations
along the belt gave notice or reason to know that this condition had existed. Id.
He also considered the deterioration of the mine roof and chunking between the
bolts were a hazard. Tr. I at 300. He characterized the Citation as significant
and substantial because this condition “created a hazard to miners that could
reasonably result in a serious injury.” Id. Specific injuries that could
arise from a rock fall included broken bones and injuries resulting from being
crushed under rock. Tr. I at 301. If the threatening piece of rock (12 feet by
6 feet by 6 to 8 inches thick) were to fall on a person, Inspector Dixon would
expect fatal injuries. Id. To abate the Citation, the operator installed
wooden cribs and wooden cross collars as additional roof support. Tr. I at
301-302.

On
cross-examination, Inspector Dixon testified that even with bolt spacing in
place rocks could fall between the bolts. Tr. I at 303. He did not cite the
mine for rock that had already fallen; but fallen rock served as a warning of
problems with roof crackings. Tr. I at 305-06. Deteriorating rock was evident
throughout the entire roof in this area. Tr. I at 307.

Superintendent Shepherd
confirmed that rock had fallen on the return side[17] of the No.
2 conveyor belt. Tr. I at 311. The rock fell between the bolts and the ribs, so
a number of cribs were installed. Tr. I at 312-13. He also noticed cracks in
the roof, but did not believe that this indicated that there were problems with
the roof. Tr. I at 313. He recalled that cribs with four to five-foot centers
were installed on both sides of the No. 2 belt, and that the mine had abated
the Citation by constructing the additional cribs. Id.

Citation No. 7558110

Inspector Dixon observed
a defective roof condition. GX 8, 13; Tr. I at 315-16. The defect was at crosscut
6 of the No. 2 return entry belt that was used as an alternate escapeway. Tr. I
at 317-18.[18]
Here he took note of a roof section that was 12 feet by 4 feet ranging from 2
to 14 inches thick. It had “busted and fallen out from between the bolts on the
lifeline in this area.” Tr. I at 318. The fallen rock had pinned the lifeline[19] against
the floor. Tr. I at 318, 322. Anyone using this escapeway, would come into
contact with this roof condition. Tr. I at 318. A mine examiner walks this area
once a week, and miners participate in an emergency drill twice a year using this
escapeway. Tr. I at 319. The defect condition was only 80 feet away from a defective
condition noted in the No. 3 entry between the No. 7 and 8 crosscuts. Tr. I at
321.

The Inspector noted
here that cutters[20]
appeared between the No. 6 and 7 crosscuts along the rib. Tr. I at 322. He found
cracks, separations, and cutters in a test hole along one pillar. Tr. I at 324.
These cracks measured 14 inches and 30 inches. Id. They indicated
clearly that the roof was not adequately supported, and that a portion of beam
from the pillar block was failing. Tr. I at 325.

Inspector Dixon marked
the defect as reasonably likely to result in permanently disabling injuries. Given
the cracking in the roof, there was a reasonable likelihood that portions of roof
would fall and injure a miner, resulting in broken bones. Tr. I at 326-27. He concluded
that the weekly examiner, or anyone doing routine maintenance or rock dusting, was
at risk. Tr. I at 327. He found that the violation resulted from moderate
negligence. Deteriorating roof conditions “had been there for weeks” and therefore
an examiner or miner moving through the area would have noticed it. Tr. I at
327-28. The Inspector also viewed a portion of fallen roof at the No. 1 entry
at crosscut 6 as “an indication of deterioration that was occurring in this
area which carried over to the No. 3 entry.” Tr. I at 328. No cribbing and no metal
straps had been installed in this area at the time of the inspection. Tr. I at
339-40.

On
cross-examination, Inspector Dixon testified that cracks in the mine roof here
were similar to the condition he cited along the No. 2 belt, leading him to conclude
that the condition had existed for several weeks. Tr. I at 336-37. The
deterioration led him to conclude that there was moderate negligence. Id.

Superintendent
Shepherd confirmed that a certified foreman is required to conduct weekly
inspections of the “return air courses” and against “hazardous conditions.” Tr.
I at 341. A foreman also must record the results. Tr. I at 342. Mr. Shepherd
co-signs the report. Id. He saw that rock had fallen between the bolts
and the rib, some of which had advanced to the bolts. Tr. I at 342-43. He did
not see the rock hanging down along a pillar block which protruded toward the
ground. Tr. I at 343.

Citation
Nos. 7558107 and 7558108

Solicitor’s counsel
moved to consider Citation No. 7558107 (effective ventilation plan) together
with Citation No. 7558108 (failure to conduct shift examination). The two Citations
are related and should be taken together. Respondent had no objection and the
motion was granted. Tr. II at 20-21. The Secretary provided Government Exhibits
16 and 16A, which contain Bardo’s mine ventilation plan and a color coded diagram
of a continuous miner machine showing locations of necessary sprays, the coal
conveyor, and that all 84 sprays must be inspected prior to each lift. Tr. II
at 23-34.

Citation
No. 7558108

A person
designated by the operator shall conduct an examination to assure compliance
with the respirable dust control parameters specified in the mine ventilation
plan. . . . The examination shall include air quantities and velocities, water
pressures and flow rates, excessive leakage in the water delivery system, water
spray numbers and orientations, section ventilation and control device
placement, and any other dust suppression measures required by the ventilation
plan. 30 C.F.R. § 75.362(a)(2).

Inspector Dixon
issued Citation No. 7558108,[21]
citing an inadequate on-shift examination of dust control parameters[22] in
violation of § 75.362(a)(2). GX 7. After conducting a respirable dust survey,
Inspector Dixon found two sprays on the continuous miner that were not
functioning properly. Tr. II at 10. The dust control plan required a minimum of
60 pounds of water per square inch (PSI), but he found the water pressure level
to be only 25 PSI. Id. Also, one of the sprays was blown out, leaving an
open port in the spray block; another spray was stopped up. Id.
Inspector Dixon issued the Citation because Bardo should have discovered these conditions
during an on-shift examination. Tr. II at 10-11. The facts and circumstances
are detailed below.

Bardo’s examiners mark
the date and time of on-shift exams that are completed on a section of conveyer
belt and initial next to the date and time. Tr. II at 14-15. Inspector Dixon examined
the board for the last on-shift inspection, noting the date, time, and initials
designating completion of the examination. Tr. II at 16. He believes that be
heard verbal affirmation that the on-shift examination was completed so that he
could begin his inspection. But he could not recall who at was. Tr. II at 35,

39. Inspector Dixon recalled that Mr. Shepherd and the continuous miner operator
    were with him when he heard that the machine was ready to mine. Tr. II at 39. Neither
    Mr. Shepherd, nor the machine operator, nor anyone else in the section, had
    warned that the continuous miner was not ready to be inspected. Tr. II at 71. In
    confirming the date, time, and the initial board, Inspector Dixon testified
    that all this had indicated to him that the “continuous miner was ready to
    begin producing coal,” and therefore was ready for inspection. Tr. II at 39-40.

Inspector Dixon testified
on dust control regulations. Tr. II at 17. Miners could suffer respiratory injury
from coal dust in the form of lung diseases, monocosis, silicosis, and black
lung. Id. Citation No. 7558108 reflects conditions that are reasonably
likely to result in a permanently disabling injury that would affect the people
working in the affected area. GX 7; Tr. II at 18-19. The condition was marked as
significant and substantial with moderate negligence. Tr. II at 19. Inspector
Dixon concluded that the operator should have had knowledge that this condition
existed. Id.

Citation No. 7558107

Failure to Follow Ventilation
Plan

The
operator shall develop and follow a ventilation plan approved by the district
manager. The plan shall be suitable to the conditions and mining system at the
mine. 30 C.F.R. § 75.370(a)(1).

Inspector Dixon issued
Citation No. 7558107 for Bardo’s failure to comply with the mine’s ventilation
plan. GX 6. As noted in Citation No. 7558108, one spray on the continuous miner
was missing while another was inoperative, which were the bases for issuing
both Citations. Inspector Dixon noted that the continuous miner had a series of
sprays on it placed in a pattern across the heads of the machine. GX 16A; Tr.
II at 26. The machine contained three spray blocks designated A, B, and C. Spray
Block A was comprised of three smaller blocks running along the atop the cutting
heads of the miner, each block containing five sprays, for a total of 15
sprays. Tr. II at 26-27. Spray Block B was comprised of two blocks with five
sprays each, located under the left and right side of the head of the miner. Tr.
II at 29-30. Spray Block C had three blocks of three sprays each. GX 16A. Two
were located at the back of the pan, one on each side; the third was in the
conveyor. GX 16A. The inoperable spray was located in Spray Block C on the back
of the pan, while the missing spray was located in Spray Block A. GX 16A.

Inspector Dixon opined
that it was important for all 34 to work simultaneously because sprayed water
is the main dust suppressant. Tr. II at 32. All 34 sprays had to be functioning
prior to each “lift of coal.”[23]
Tr. II at 63. The dust control plan required that sprays operate at a minimum
water pressure of 60 PSI. Tr. II at 10. Inspector Dixon measured the miner’s water
pressure on the miner at 25 PSI. Tr. II at 33. He explained that the missing
spray caused a decrease. The decrease in water pressure was a result of water
flowing out of a port. Id.

The Citation indicated
it was reasonably likely to cause a permanently disabling injury such as lung
disease or black lung. Tr. II at 37. Inspector Dixon testified that his dust
survey on the date of this violation showed .17 milligrams, a calculation well
below the 2.0 milligram allowable limit. Tr. II at 68.[24]

He concluded
that this condition would affect five miners, the number of miners in the area
of the machine cutting coal. Tr. II at 38. He concluded that the condition was
moderate negligence since it should have been detected during on-shift examination.
Id. Bardo did abate the Citation by replacing the missing spray, fixing
the inoperable spray, and increasing the water pressure to 65 PSI. Id. Bardo
also adjusted the booster pump to insure reaching the proper pressure. Tr. II
at 67.

Bardo next called
Randall (Randy) Bowman[25]
to testify. Mr. Bowman had 25 years’ experience in mining, and he operated
continuous miners for the past 18 years. Tr. II at 74. Mr. Bowman worked at
Bardo No. 1 where he operated the continuous mining machine. Tr. II at 75. On
November 20, 2007, he was conducting dust parameters on the continuous miner
prior to Inspector Dixon’s examination. Tr. II at 79. He testified that the
continuous miner stood 150 feet from the working face. Tr. II at 77. While
operating, the sprays would emit loud hissing/spraying sounds that could be
heard from 70 feet away. Tr. II at 78. If these sprays were not working, it would
be obvious. Tr. II at 78. It would not be difficult to tell the difference
between 25 and 60 PSI of water pressure. Id.

When Inspector
Dixon arrived at the location, Mr. Bowman was conducting his on-shift
examination. Tr. II at 79. An electrician and two workers were also present. Id.
Mr. Bowman testified that he did not tell the Inspector that his inspection was
completed and that he was ready to put the machine into operation. Id. But
on cross-examination, Mr. Bowman admitted that after he completed his examination,
he told the Section Foreman that the exam was complete. Tr. II at 80. The Foreman
marked the date and time and initialed on the board provided. Id.

Superintendent Shepherd
testified that he did not hear anyone say that Bardo’s examination was
completed. Tr. II at 84. He agreed that the loud noise of the sprays’ hissing
sound was an indicator of a drop in water pressure. Tr. II at 86. When the
miner machine is 30 feet from the face, the operator turns on the sprays to wet
the approach. Tr. II at 87. While moving these 30 feet with the water pressure
on, a reduction in PSI would be obvious. Id. If such an event were to
occur, the mining machine “would be backed up and checked.” Id. He opined
that one malfunctioning spray would affect the overall operation. Tr. II at 86.

Mr. Shepherd also
confirmed that someone told Inspector Dixon that the continuous miner was ready
to run. But he was unsure who might have said that “we’re about ready.” Tr. II
at 88. Mr. Shepherd was referred to his deposition, where he testified that Trent
Waller, the third shift electrician, told Inspector Dixon they were ready, Tr.
II at 90. But Mr. Bowman, who was examining the dust parameter, still had the
spray out and was not ready: “I remember Trent saying, yeah, we were ready; but
I never remember Randall [Bowman] saying anything.” Tr. II at 90. Trent was not
designated to declare when the on-shift examination was complete. Tr. II at 91.

Citation
Nos. 7522912 and 7522915

Defective
Safeguards of Machine Parts

Gears;
sprockets; chains; drive; head; tail; and takeup pulleys; flywheels; couplings,
shafts; sawblades; fan inlets; and similar exposed moving machine parts which
may be contacted by persons, and which may cause injury to persons shall be
guarded. 30 C.F.R. § 75.1722(a).

Inspector Dixon
issued Citation No. 7522912 because a “guard that covers the discharge roller
drive and drive sprocket and shaft was missing.” Tr. II at 96; GX 2. The
discharge roller on the end of the feeder is the area where mined coal is
deposited. Tr. II at 98. A conveyor chain runs through the center of the feeder,
and a guard is installed to cover the moving parts of the shaft, sprocket, and
drive chain. Tr. II at 98-99. A valve body with control levers and a panic bar are
both located near the moving parts. Tr. II at 99-100. Inspector Dixon testified
that the control levers control the functions of the machine and the panic bar provides
an emergency shutoff switch. Tr. II at 100; see also Demonstrative
Evidence GX 20 (schematic drawing of machinery to be graded).

Inspector Dixon found
this violation to be significant and substantial and the result of moderate
negligence. GX 2. He found the violation to be reasonably likely to result in a
permanently disabling injury. GX 2. He concluded that the exposed moving parts
created an “entanglement-type” hazard that could lead to permanently disabling
injuries such as broken hands, broken bones, or dismemberment of fingers. Tr.
II at 105. Miners using the valve body controllers and the panic bar would be
in the area, as would miners performing routine maintenance and cleaning work,
such as shoveling out under the feeder. Id. He testified that “the
operator should have seen this condition. The operators must do a weekly
examination on electrical equipment. . . . [I]t should have been corrected.” Tr.
II at 108. To abate, the operator installed a guard over the cited area while
Inspector Dixon was still in the mine. Tr. II at 108-09.

On
cross-examination he admitted that the end of the shaft with six Allen bolts
was exposed, but that the sprocket itself was not visible. Tr. II at 110. He
agreed that the sprocket and the chain to the sprocket were therefore guarded. Id.
Only the end of the shaft with the six bolts was exposed. Tr. II at 110-11. He
confirmed that no miner at Bardo was assigned regular duties as the feeder
operator. Tr. II at 112. He estimated that the shaft was about four to five
feet from the ground. Id.

Roger Baker testified
for Bardo. He had 33 years’ mining experience and worked as a maintenance
foreman at Bardo. Tr. II at 115-16. Mr. Baker testified that the drive sprocket
and the sprocket chain are located behind the hub that is covered by a guard. Tr.
II at 126. He also testified that the speed of the feeder is very slow. Tr. II
at 126. The hub contains shear pins and protects the machine against damage. Tr.
II at 125. In order to be caught by the exposed bolts, a person would have to
reach over the top of the valve chest, then behind it. Tr. II at 130. He did
not believe there was a threat to injury from the operating feeder. Tr. II at
131.

Citation
No. 7522915

The final citation was
also issued for a failure to safeguard as required by 30 C.F.R. § 75.1722(a).
GX 4. Inspector Dixon observed that a portion of the guard on the oil bath[26] covering the
chain and sprocket drive box on the No. 3 head drive was missing. Tr. II at 136;
GX 4. The guard had worn away, thereby exposing the chain and sprocket drive. Id.
The head drive turns the conveyor belt. Tr. II at 136. In order to keep the
belt functioning properly, there is a pool of oil through which the chain
turning the belt passes. Id. A piece of conveyor belt had been placed
over the unguarded portion of the oil bath. Tr. II at 139. Inspector Dixon
concluded that the exposed sprocket and chain on the oil bath posed a hazard
because “they are constantly rotating while the head drive is running.” Tr. II
at 140, 141. He testified that belt examiners and miners conducting maintenance
on the head drive were routinely in the area. Tr. II at 141. Also, miners take water
for disposal from a 12-inch depth beneath the head drive, thus putting them
next to an exposed moving chain and sprocket. Id.

Inspector Dixon further
concluded that Bardo was aware of this condition since it had placed part of a conveyor
belt to “cover” the exposed area. Tr. II at 142. Exposure on the left side of the
metal frame was four inches wide. Tr. II at 143. Exposure behind the belt left
an exposed gap three and one-half inches wide. Id. The gap “tapered off
at the end of the oil bath.” Id. The violation was reasonably likely to
cause permanent disabling dismemberment-type injuries. Tr. II at 143-44. In finding
moderate negligence, at least two examinations, which occur daily, should have
discovered what was “pretty obvious.” Tr. II at 144-45. To abate the Citation, Bardo
welded pieces of metal over the exposed parts. Tr. II at 145.

On cross-examination,
Inspector Dixon testified that the area where the conveyor belt was hanging
over the oil bath was sufficiently guarded until a permanent solution was found.
Tr. II at 149. He testified that the condition was still problematic because it
could disengage. Id. While a person’s entire body would not fall into
the unguarded area, a person could come into contact with the hazard while
reaching to break a fall. Tr. II at 150.

Superintendent Shepherd
testified for Bardo. He recalled that the guard covering the drive sprocket of
the No. 3 belt drive was where “[t]he chain had rubbed a hole through the side
of the middle guard on . . . [the] oil bath. . . . It rubbed a hole where the
chain comes around the bottom of the oil bath [which] was probably a couple
inches wide.” Tr. II at 153-54. Bardo was building a new oil bath or ordering
one and the belt was used as temporary coverage. Tr. II at 154. He estimated
that the unguarded area was two to three inches wide and three feet long. Id.
He did not think that a miner would have reason to be near the exposed guard. Tr.
II at 155.

Mr. Shepherd
testified that the belt covered the exposed opening. Tr. II at 156. The
beltline only was used temporarily just before Inspector Dixon arrived. Tr. II
at 157. Apparently, less than a week had passed between the time the problem
was noticed and the problem was remedied. Tr. II at 159.

Summary
of Secretary’s Arguments

Unsupported
Roof Systems

In Citation No.
7502246 Bardo failed to comply with 30 C.F.R. § 75.202(a) in four of the roof violations
at issue. The Secretary asserts that a reasonably prudent person in the mining
industry would have immediately removed the loose draw rock that Inspector Doan
discovered. Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987); Secretary’s
Proposed Findings of Fact, Brief and Argument 20-21. Significant and
substantial applies to the draw rock spanning an area of 120 feet that is used
by miners six times each day. Sec’y’s Br. 22. Noting the deteriorating roof, Inspector
Doan’s designation of moderate negligence is convincing and will be accepted.

The Secretary argues
a similar rationale for the remaining three charges under § 75.202(a). None passed
the reasonably prudent person test; in each case, hazardous conditions reported
had a reasonable likelihood of contributing to a serious injury; and all
adverse conditions should have been detected. Citation No. 7522914 charges an
inadequate roof support was blocking two hanging rocks. Sec’y’s Br. 28-29; Tr. I
at 269. Miners and safety examiners traverse the area twice each day. Sec’y’s
Br. 29. Fallen portions of the roof indicated that this should have been
discovered during a shift examination. Id. at 30. Citation No. 7522917 charges
a life-threatening rock had fallen between roof bolts along a conveyor belt. Id.
at 31. Deteriorating roof conditions were reasonably likely to result in
serious injury and should have been discovered and corrected during a shift
examination. Id. at 32. And Citation No. 7558110 charged that a large rock
had fallen between the roof bolts and pulled a lifeline to the ground. The
fallen rock showed cracks and cutters indicating that the roof was unsafe. Id.
at 33. Such conditions were extensive, all failed the reasonably prudent person
test, all were reasonably likely to result in serious injury, and all should
have been discovered and corrected. Id. at 34-35.

Disregarded
Roof Plan

Citation No. 7522909 charged
violations of the roof control plan required by 30 C.F.R. § 75.220(a)(1),
citing Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987)
(standard for finding violation of mine plan). The Secretary presented Bardo’s
roof control plan mandating that an ATRS be set firmly against a roof. Proof was
presented that a roof bolter operator violated this provision. Sec’y’s Br.
24-25. Operation of a roof bolter without the ATRS set firmly against the mine
roof exposed operators to falling rock. Id. at 25-26. Superintendent
Shepherd agreed that a hazard was created by an unsupported roof. The Secretary
accepted Inspector Dixon’s high negligence designation because the roof bolter
was equipped with 24-inch extensions which indicated that the operator knew the
ATRS could not reach the mine roof. Id. at 26. Other areas of mine roof were
unreached by the ATRS. Id. at 27. Despite evidence of the ATRS’s inability
to reach the roofs, miners were permitted to continue to install roof bolts without
adequate protection.

Disregarded
Dust Control

Citation No.
7558107 (related to Citation No. 7558108) alleged a failure to comply with a ventilation
plan. Bardo’s failure to ensure that sprays were functioning constituted a
violation of 30 C.F.R. § 75.370(a)(1). Significant and substantial and moderate
negligence designations were warranted for reasons similar to those the
Secretary offers in support of Citation No. 7558108, which was issued for
failure to complete an examination of dust control parameters in accordance
with 30 C.F.R. § 75.362(a)(2). Sec’y’s Br. 35. Inspector Dixon gave the mine
operator an opportunity for pre-examination of all hazards before beginning his
own inspection. Still, he discovered two water sprays that were malfunctioning
and measured only 25 PSI water pressure. Id. at 36. Mr. Shepherd had not
informed Inspector Dixon that their inspection was incomplete. Id. at 37.
The situation was designated serious and significant and the failure was
reasonably likely to result in serious illness, injury, or death to miners. Id.
The moderate negligence designation was appropriate because Bardo had certified
that an examination had been conducted prior to Inspector Dixon’s exam and no
one had objected, which indicates that Bardo knew or should have known of the
hazardous condition. Id. at 38.

Unguarded
Machinery

Citation Nos. 7522912
and 7522915 charge Bardo with violations of 30 C.F.R. § 75.1722(a). Citation
No. 7522912 charges Bardo with failing to provide an adequate guard on a
Stamler Feeder. Inspector Dixon discovered that a guard cover for the discharge
roller and drive sprocket shaft was missing. A valve with control levers was located
near the exposed portion. Sec’y’s Br. 42. The hazard was designated significant
and substantial since a panic bar and valve body were in close proximity to
exposed moving parts. A miner using either device would likely make contact
with the unguarded portion and suffer serious entanglement injuries. Id.
at 43. The Citation charged moderate negligence because the Stamler Feeder has
been equipped with a guard from the manufacturer with grooves allowing the
guard to be removed. In Citation No. 7522915, the guard covering the chain and
sprocket box was missing, and moving machine parts were exposed in violation of
the designated standard. Id. The Respondent knew that the guard was
missing. The part was on order while the head drive was still being used. Id.
at 45. The significant and substantial designation with moderate negligence should
be affirmed and upheld for reasons akin to those articulated for Citation No.
7522912, supra.

Summary
of Bardo’s Reply Arguments

Positive
Roof Plan

Bardo argues that it complied
with § 75.202(a) because its miners could work safely in the cited areas. Respondent’s
Post Hearing Brief Findings of Fact and Conclusions of Law passim (collectively
“Bardo Brief”). Citation No. 7502246 does not allege the roof was
falling. While some loose rock was in the area, they were small in comparison
with larger rocks that were later pulled down. The situation was not found to
be significant and substantial because the loose rocks were small. Bardo Br. at

24. In Citation No. 7522914, the roof was supported and the rock was lying on
    supports that were to hold the roof. The “loose roof” area was not where miners
    work so there was no likelihood of injury. In Citation Nos. 7522917 and
    7558110, the roof material was found on the floor. It was in an area that was
    traveled infrequently. It did not pose a hazard because it had already fallen
    without incident. Id. at 20. The Citation was not designated significant
    and substantial because it was not reasonable to expect serious injury from a rock
    that was already fallen. Id. at 24.

Properly
Positioned ATRS

Bardo contends that
Citation No. 7522909 cannot support a penalty because Bardo had complied with §
75.220(a)(1). Bardo argues that the ATRS was properly placed. Bardo Br. 20. According
to Bardo, Inspector Dixon’s testimony was mixed and conflicted. The evidence shows
that the mining height in the No. 5 entry at 9 feet 5 inches. The ATRS could
reach up to 9 feet 11 inches. The highest measurement the Inspector took was 10
feet 2 inches. He testified that one halo ring was touching the roof and the
other was not, which indicated that there must have been some difference in
mining height. Id. at 21. Assuming the Inspector was correct in his
measurements, the ATRS would still have been within 3 inches of the roof which
would have provided canopy protection. Id.

Bardo also
contends that the ledges along the mine ribs evidenced that the operator was
ramping up to reduce the mine height so that roof bolts could be safely
installed. Id. A significant and substantial designation is unwarranted because
three roof bolts had been installed in the area. The roof was supported 6 feet
from the right rib and 3 feet from the left rib. Id. at 24. Three of five
roof bolts were installed and the halo ring was no more than three inches from
the metal strap, showing that there was no likelihood that the roof would fall.
Id. Bardo’s argument is not supported by the record.

Adequate
Maintenance and Dust Control

Bardo asserts that Citation
No. 7558107 cannot be sustained for lack of evidence of violating § 75.370(a)(1).
Miners were working to clean and repair water sprays in accordance with the
standard. Bardo Br. 21. As Bardo would have it, coal removal operations had not
yet started at the time of the Inspector’s examination. The safety standard and
the mine’s dust control plan require that the water sprays be operating before
production begins. Id. at 22. If defects are repaired prior to
production, there can be no violation. Id. That argument doesn’t fit
because the work was not completed when the Inspector began his checks of the
system. But, this is where the story becomes murky. Bardo asserts three miners
were cleaning the 34 water sprays when the Citation was issued. Id. Bardo
also asserts that there is no evidence that its designee Mr. Bowman had completed
the on-shift examination. Id. at 23. There also is no evidence that the
Foreman received a report from Mr. Bowman. Id. But convincing contrary evidence
indicates that Mr. Dixon acted reasonably in assuming he had been cleared to
begin the inspection. See Summary of Secretary’s Arguments, supra.

Adequate
Machinery Guards

Finally, as to Citation
Nos. 7522912 and 7522915, Bardo argues that it has complied with § 75.1722(a). Bardo
claims that the cited areas were guarded as required by the regulation. In
Citation No. 7522912, Inspector Dixon conceded that the discharge roller and
drive sprocket were guarded, that the end of the shaft was neutralized by its
location, and that miners could not make contact with it. Bardo Br. at 23-24. In
Citation No. 7522915, the oil bath was guarded by a one-half inch rubber belt
as a temporary guard. Id. at 24. Since the discharge roller and drive
sprocket were guarded in Citation No. 7522912, and a piece of the conveyor belt
was guarding the area cited in Citation No. 7522915, neither of these
violations justified being designated significant and substantial. Therefore, no
penalties should be assessed.

CONCLUSIONS
OF LAW

Standard
of Proof

The Secretary
has the burden of proving all elements of each alleged violation by a
preponderance of the evidence. Steadman v. S.E.C., 101 S. ct. 999, (1981) In
re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC
1819, 1838 (Nov. 1995), aff’d, Sec’y of Labor v. Keystone Coal Mining
Corp., 151 F3d 1096 (D.C. Cir. 1998); ASARCO Mining Co., 15 FMSHRC
1301, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148,
2152 (Nov. 1989); Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May
1987). The Secretary also has the burden of going forward with the evidence. U.S.
Dep’t of Labor v. Greenwich Collieries, 114 S. Ct. 2251, 2252 (1994).

Legal
Standards

Reasonable
Prudent Person

Factors that a reasonably prudent person
would know include accepted safety standard requirements that are unique to the
mining industry, and surrounding conditions at the mine. BHP Minerals Int’l,
Inc., 18 FMSHRC 1342, 1345 (Aug. 1996). The standard is used to test conclusions
reached by an objective observer with knowledge of the relevant facts. U.S.
Steel Mining Co. L.L.C., 27 FMSHRC 435, 439 (May 2005) (quoting U.S.
Steel Corp., 5 FMSHRC 3, 4-5 (1983)). The standard is always applied to the
totality of the factual conditions and circumstances involved. Id.; see
also Asarco, Inc., 14 FMSHRC 941, 948 (June 1992).

Significant
and Substantial

Section 104(d) of the Mine Act, 30
U.S.C. § 814(d), designates more serious violations as “significant and
substantial” where facts surrounding the violation show that there exists a
reasonable likelihood that the hazard to which the violation contributed will
result in an injury or illness of a reasonably serious nature. Cement Div.,
Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981).

The Commission has definitively held:

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.

Mathies Coal Co., 6 FMSHRC 1, 3 (Jan. 1984); accord
Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1995); see
also Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (adopting Mathies criteria).

Negligence

The Secretary defines
negligence as “conduct, either by commission or omission, which falls below a
standard of care established under the Mine Act to protect miners against the
risks of harm.” 30 C.F.R. § 100.3(d) (2011). Under the Mine Act a “mine
operator is required to be on the alert for conditions and practices in the
mine that affect the safety and health of miners and to take steps necessary to
correct or prevent previous hazardous conditions or practices.” Id. Moderate
negligence is found when an “operator knew or should have known of the
violative condition or practice, but there are mitigating circumstances,” while
high negligence exists when an “operator knew or should have known of the
violative condition or practice, but there are no mitigating factors.” Id.
(emphasis added).

Penalty
Assessments

The Judge determines
the appropriate penalty amounts de novo. In considering penalties, she/he
must provide a clear explanation of any substantial deviation from the Secretary’s
proposed penalties. Cantera Green, 22 FMSHRC 616, 622-23 (May 2000). However,
Commission Rule 2700.30(b) instructs that “[i]n determining the amount of
penalty, neither the Judge nor the Commission shall be bound by a penalty
proposed by the Secretary.” 29 C.F.R. § 2700.30(b). Therefore, the Judge must independently
determine an appropriate penalty.

Consideration
must be given to the following factors contained in section 110(i) of the Mine
Act: 

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

30 U.S.C. § 820(i). The
parties have stipulated under section 110(i) that (1) Bardo is a large operator,
(2) the proposed penalties are appropriate for its size, and (3) the proposed
penalties will not affect the ability of Bardo to continue in business. Tr. I
at 14. The Presiding Judge finds that Bardo has demonstrated good faith in
abating the Citations, and that there is no showing that Bardo had more or
fewer violations than would be expected of a large operator.

Analysis of
Violations

Citation
Nos. 7502246, 7522914, 7522917 and 7558110

Recognizable
Roof Hazard Conditions

Four citations were
issued for violations of the roof condition standard under § 75.202(a). It is
found that the Secretary has proven the violation of each citation. The
preponderance of the evidence shows that Bardo failed to comply with the
reasonably prudent test discussed above. Therefore, the Court upholds the violations
alleged in each citation, as well as each proposed significant and substantial
and moderate negligence finding. Evidence and arguments are discussed below.

Inspector Doan’s testimony with regard
to Citation No. 7502246 conveyed the extensiveness, obviousness, and duration
of the hazardous condition. Loose and overhanging draw rock did not occur in one
isolated place. Tr. I at 68, 70. Separated rocks found in a number of areas ranged
in weight from 6 to 325 pounds. Tr. I at 76, 148, 150. The expanse of the
condition indicated that it existed for a substantial period of time. Inspector
Doan and Superintendent Shepherd noticed this hazard simultaneously. Immediate
action to abate was taken without objection. Attempts by Mr. Shepherd to downplay
the extensiveness of the condition were unconvincing. His testimony that loose
rocks were small, only comprising a thin layer along the roof, and were
difficult to extricate from the roof, did not convince. None of Bardo’s arguments
refute Inspector Doan’s consistent and credible testimony.

Bardo’s argument
that the mine was in compliance with its roof control plan is neither explicated
nor persuasive and is rejected. The Citation was not for violating the roof
control plan. Tr. I at 102. The Citation was based on Bardo’s failure to provide
measures that a reasonable person familiar with the mining industry would take.
Inspector Doan identified a hazardous roof condition. Rocks were separated from
the roof. The extensiveness of the condition was ascertained prior to issuance
of the Citation. Yet, Bardo failed to take steps that a reasonably prudent
person familiar with the mining industry would have taken when faced with such hazardous
circumstances.

Citation Nos. 7522914,
7522917, and 7558110 are also proven. Two large portions of rock had broken
away from the roof leaving an eight-inch gap. Tr. I at 273-74. Two large rocks had
dislodged and were hanging from the roof. Tr. I at 269, 277. Other portions of
the roof had fallen. Tr. I at 277-78. Dislodged rocks gave a reasonably
ascertainable indication to miners and on-shift examiners that the Bardo mine roof
was seriously deteriorating. Mr. Shepherd confirmed that he saw fallen rock and
cracks in the roof. His exculpatory testimony—that this evidence of
deterioration did not mean that there were problems with the roof—does not
outweigh Inspector Dixon’s delineated conclusions to the contrary and fails to
convince this fact finder. Tr. I at 313.

The sizes of
rock described as detached or fallen, together with obvious vertical cracks and
cutters, constituted conditions that were obvious, pervasive, extensive, and
ongoing. The Inspectors’ testimonies were not rebutted. They established that
the deterioration was not remedied prior to issuance of the Citations. The conditions
found showed numerous problems that were reasonably ascertainable prior to inspection.
A reasonably prudent person familiar with the mining industry would have taken the
necessary remedial steps. Bardo failed to do so.

Significant
and Substantial

Each citation described
conditions found at Bardo’s mine that violated the safety standard prescribed
by § 75.202(a). The hazard—a roof fall—was prominently noted in each citation. The
significant and substantial designations in Citation Nos. 7522914, 7522917, and
7558110 are affirmed and approved. Citation No. 7522914 involved two large
dangling pieces of rock that hung over the No. 5 belt and its offside. Citation
No. 7522917 involved an even larger rock that had fallen along a conveyor belt.
Inspector Dixon noted evidence of roof deterioration in areas under which
miners, on-shift examiners, and belt shovelers regularly pass. These roof problems
in areas being mined were reasonably likely to result in an injury-producing
event, and any resulting injuries would be serious.

In Citation No. 7558110,
rock had fallen on a lifeline, and cutters and vertical cracks were found indicating
problems with the roof near an alternate escapeway. That area is used in the
event of an emergency. The nature of the hazard and the critical need for the area’s
access makes it reasonably likely that an injury could have occurred had the
conditions continued. Such injuries would be of a reasonably serious nature.

Moderate
Negligence and Mitigation

The moderate negligence
designations for the above violations are approved. The convincing case presented
by the Secretary proved that Bardo knew or should have known of the violations.
The hazardous conditions in areas frequented by miners show further that Bardo should
have known of each hazard, with one exception. In Citation No. 7502246, the
hazardous condition found was only visible when exiting the mine. A cantilever condition
reduced all ability to observe one angle of the defect which constitutes a mitigating
factor. Tr. I at 105-06.

In Citation Nos.
7522914 and 7522917, conveyor belts left uncovered were observable only on the
offside of the belts, an area that is less frequently populated than the onside.
This positioning of the hazards mitigates because fewer miners could be aware of
the hazards than if they were onside of the belt.[27] Also, the
location of the hazard in Citation No. 7558110 is a mitigating factor since the
escapeway is only traveled weekly. Mitigating circumstances were present in
each of the three violations. The Inspectors’ designations of moderate
negligence are accepted for the four violations of § 75.202(a).

Penalty
Determinations

The Secretary proposes a penalty of
$4,689.00 for Citation No. 7502246. The proposed penalty is appropriate. Cantilevering
of the draw rock mitigates the negligence and such mitigation was taken into
account by the Secretary in concluding that the violation showed just moderate
negligence. But, because the area was frequently traveled, its gravity precludes
any lowering of the penalty. Therefore, after considering the section 110(i)
factors, a penalty of $4,689.00 is assessed.

The
Secretary proposes penalties of $3,689.00 each for Citation Nos. 7522914 and
7522917. Each of the cited hazards was located on the offside of the belt which
slightly diminishes their gravity. Therefore, a lesser penalty of $3,000.00 is
assessed for each citation for a total of $6,000.00.

The
Secretary proposes a penalty of $6,996.00 for Citation No. 7558110. The
hazard’s location presents a substantial mitigating factor which affects both
the negligence and gravity of the hazardous condition. The area was not
frequently traveled which lowers the negligence of failing to remedy the hazard,
and also lowers any likelihood of injury. Therefore, a penalty in the lesser amount
of $3,500.00 is assessed for Citation No. 7558110.

Citation
No. 7522909

Roof
Control Plan

Bardo
failed to follow its roof control plan. The plan required that any roof bolter
be set firmly against the mine roof. Citation No. 7522909 alleges that it was set
in an ineffective position while roof bolting was undertaken. Tr. I at 178-79. Two
bolts were installed on the right side while the left side had one bolt installed
with a second in process of installation. Tr. I at 180. At a roof height of ten
feet, two inches, the machine could not have reached the roof, even with an
extension. Tr. I at 188-89. Inspector Dixon saw evidence of ramping up which
indicated other efforts being made to reach the roof. This use of multiple
remedies is a strong indication that Bardo recognized its roof bolter had a problem
that needed a solution.

Yet, Bardo disputes
the plain meaning of “firmly against the roof” in disputing the Inspector’s determination.
This Judge agrees with Inspector Dixon. Simply stated, the roof bolter must be
in contact with the roof. The roof bolter must be placed in a position it will not
shift. Tr. I at 208.

There is competing
testimony on the whether the roof bolter reached the roof. Inspector Dixon saw
no blocks reaching the roof on the right side, and he saw just one of four blocks
touching on the left. Mr. Shepherd saw three of four blocks touching the roof. He
estimated the height as between 8 and 9 feet; Inspector Dixon calculated of 10
feet 2 inches. Tr. I at 256. Inspector Dixon’s testimony tends to be credible. Both
Dixon and Shepherd acknowledge that the bolter was not flush with the roof which
shows that it was not set firmly and would not protect the miners who were
bolting the roof. Mr. Shepherd produced no written note or other writing. Inspector
Dixon on the other hand had made ample notes and prepared a same day Citation
Report which did not conflict with his notes.[28]

Significant
and Substantial

Citation No.
7522909 constituted a violation of a mandatory safety standard. See Mathies,
6 FMSHRC at 3. The fallen roof was caused by a failure to follow the roof
control plan. This hazard was reasonably likely to result in injury. The roof
bolter position was on an unstable footing and was not firmly set against a
cracking roof. Tr. I at 190. Bardo’s failure to comply with its roof control
plan in an area containing a substandard roof was reasonably likely to produce
an injury that would be serious.

High
Negligence

Inspector Dixon’s finding
of “high negligence” is approved and accepted. There was evidence that Bardo
either knew or should have known of the condition, but there was no mitigating evidence
presented. Tr. I at 193. Proof shows that Bardo made efforts to overcome the problem
and therefore was aware of the problem. Yet Bardo continued to bolt the roof
using a roof bolter that could not support a roof that was in the subpar
condition.

Penalty
Determination

The Court finds Inspector
Dixon’s testimony to be more credible regarding the height of the roof and the
extent to which the bolter failed to reach the mine roof. Bardo had ramped up
the mine floor which is convincing evidence that its problem was known. Based
on the high negligence and the significant and substantial nature of this
violation, the penalty is set as proposed by the Secretary in the amount of $31,988.00.

Citation
Nos. 7558107 and 7558108

Citation No.
7558107 was issued for Bardo not meeting its dust control ventilation plan, and
Citation No. 7558108 followed an inadequate on-shift examination, in violation
of §§ 75.370(a)(1) and 75.362(a)(2), respectively. Both violations
involved two malfunctioning sprays on a continuous miner. See GX 16A
(demonstrative description of machine). Pressure was found by Inspector Dixon at
25 PSI, far below the plan’s accepted minimum of 60 PSI. Tr. II at 10.[29]

A question
remains as to whether Inspector Dixon prematurely began his inspection of the
continuous miner machine. Inspector Dixon testified that he properly gave
notice of his intentions prior to inspecting. His notes showed that he informed
Mr. Shepherd that he would conduct dust and noise surveys and that he checked
the preshift/on-shift book, which showed no hazards, both before beginning his
inspection. GX 12. He recalls receiving word from an unidentified person that Bardo
had done its pre-exam of the dust parameters. Tr. II at 35. Bardo thinks that
because the Inspector cannot identify by name or job title who gave an oral go
ahead, there was doubt cast on whether the operator had sufficient time to
conduct its own examination beforehand. Tr. II at 47-51. It is evident that
Inspector Dixon was not rushing anyone and that he gave Bardo ample time and opportunity
to examine the continuous miner. Certainly no one from Bardo objected when
Inspector Dixon began his inspection. Neither Shepherd nor Bowman took notes
that would contradict Inspector Dixon’s clear recollection that no objection was
voiced to starting his examination. Neither Shepherd nor Bowman denied that a
spray was malfunctioning, or denied that another was missing. Bardo’s
unsupported argument is unpersuasive. It certainly cannot rebut unrefuted evidence
that sprays on Bardo’s continuous miner machine were missing, inoperable, or
malfunctioning, resulting in a spray PSI of 25, below a set minimum PSI of 60.

Bardo presented
no evidence or testimony denying that sprays were inoperable, or that the PSI
level was at 25 instead of the required 60. The Secretary has established these
violations by a preponderance of the evidence. Bardo certified that an
examination had taken place and never objected to so certifying.

The two
violations are linked. Significant and substantial designations with moderate
negligence are properly assigned to both Citations. The failure to conduct an adequate
on-shift examination allowed the water pressure to measure substantially below
the 60 PSI level required in the mine’s ventilation plan and increased the
exposure to coal dust inhalation. Bardo management had sufficient time to check
the continuous miner and discover conditions of inoperable sprays and low water
pressure. However, the broken and non-functioning sprays were located in spray
blocks that may not have been readily visible to a pre- or on-shift examiner. Bardo
had conducted the examination, but an adequate examination, if made prior to
Inspector Dixon’s inspection, should have caught these hazardous conditions.

Penalty
Determination

The Secretary has
proposed penalties of $14,373.00 and $6,458.00 for violations of Citation Nos.
7558107 and 7558108. Based on the above findings and the mitigating
circumstance that the broken sprays were not readily visible, Bardo is assessed
lesser penalties of $10,000.00 for Citation No. 7558107 and $6,000.00 for
Citation No. 7558108.

Citation
Nos. 7522912 and 7522915

The last two
violations in this docket are considered in tandem. Both are alleged violations
of § 75.1722(a) for failing to provide adequate guarding, albeit the two
incidents were factually different. The Secretary established that the absence
of guarding machinery was properly designated significant and substantial and resulted
from moderate negligence. But as explained below, mitigating circumstances
present in each violation warrant reductions in penalty.

Citation No.
7522912 charged that a guard covering a discharge roller and drive sprocket
shaft on a Stamler Feeder[30]
was missing. The discharge roller is located at the end of a feeder. A conveyor
chain runs through the center of the feeder. Inspector Dixon found that the
lack of a guard created a likelihood of entanglement-type injuries. Although the
guard was missing, the drive sprocket and chain on the feeder were covered and that
only the shaft with an assembly of six bolts was exposed. Tr. II at 110-11. The
lack of a guard in this area exposed miners to entanglement with uncovered
moving parts. The hazard was a violation of § 75.1722(a).

Miners
performing routine maintenance were exposed to the hazardous condition. Tr. II
at 105. Their presence in the area created a reasonable likelihood that any entanglement
would result in an injury of a reasonably serious nature. Injuries ranged from
broken bones to dismemberment, all of which are injuries of a reasonably
serious nature. The moderate negligence designation is accepted and approved,
for Bardo either knew or should have known about these unguarded machines parts.
However, the covering on the discharge roller, drive sprocket, and a chain
constitutes a mitigating factor justifying a reduced penalty.

An analysis of
Citation No. 7522915 merits a similar result. The guard on the oil bath
covering the chain and sprocket drive box on the No. 3 head drive was found
missing, which exposed the chain and sprocket drive. Tr. II at 136. Inspector
Dixon noted that a piece of conveyor belt had been placed over an unguarded
portion of the oil bath, which provided some protection. Tr. II at 139. However,
the remaining exposed parts caused by the missing guard created a hazard which
violated § 75.1722(a).

Significant
and Substantial

Inspector Dixon cited
these hazards as significant and substantial since belt examiners, maintenance
miners, and miners accessing water from a 12-inch hole under the head drive
would be exposed to the hazard. Tr. II at 141. Anyone kneeling down to get
water would use his hand as a brace on the unguarded oil bath. There would be a
reasonable likelihood that any entanglement would cause a reasonably serious
injury. And even though part of the conveyor belt covered exposed parts, there
were still exposures on the left side of the metal frame behind the belt. Such
a makeshift effort to cover unguarded parts did not fully protect from injury. Such
a condition would be significant and substantial, and it is so found.

Inspector Dixon saw
this as an obvious hazard. It was out in the open and only partially covered with
a piece of belt. Bardo knew about the problem prior to Inspector Dixon’s
inspection. Mr. Shepherd admitted that Bardo knew of the condition, noting that
only a piece of belt covered the opening. Tr. II at 153-54. Bardo, being aware
of the problem, took steps to fix it in part, thus earning a mitigating factor.
The moderate negligence determination is partially offset by Bardo’s temporary
guard which permits a reduction in penalty.

Penalty Determination

The
Secretary proposes a penalty of $3,689.00 for Citation No. 7522912. Mitigating
factors warrant a reduction in penalty. Therefore, the penalty is reduced to
$2,000.00.

The
Secretary proposes a similar penalty of $3,689.00 for Citation No. 7522915. Bardo’s
makeshift, temporary guard was insufficient, but its attempt to remedy the
danger merits a moderate act of negligence for this Citation. Having considered
the 110(i) factors and Bardo’s moderate negligence, a penalty of $1,000.00 is
assessed for Citation No. 7522915.

ORDER

At the hearing, in
addition to the citations contested by the operator, the parties presented a
proposed settlement of six citations. Tr. I at 10-13. Upon consideration of the
110(i) factors, the settlement approved on-the-word is documented by written
order as follows:

Citation
No.              Assessment         Settlement
Amount

7503275                        $8,209.00                          $3,143.00

7522928                        $2,901.00                          $ 
 900.00

7522911                        $2,473.00                          $2,473.00

7522923                        $2,106.00                          $2,106.00

7522921                        $3,996.00                           (vacated) [31]

7522924                        $3,689.00                           (vacated)

TOTAL:                     $23,374.00                          $8,622.00

SO ORDERED.

IT IS FURTHER ORDERED that Citation
No. 7503275 be MODIFIED to reduce the number of persons affected from
twelve to four.

IT IS FURTHER
ORDERED
that Citation No. 7522928 be MODIFIED to reduce the number of persons
affected from twelve to two.

The following
penalties are assessed for the remaining nine citations as analyzed and ruled
on in this Decision:

Citation
No.                    Assessment

7502246                              $4,689.00

7522914                              $3,000.00

7522917                              $3,000.00

7558110                              $3,500.00

7522909                            $31,988.00

7558107                            $10,000.00

7558108                              $6,000.00

7522912                              $2,000.00

7522915                              $1,000.00

TOTAL                            $65,177.00

SO ORDERED.

Finally, Respondent
Bardo Mining is ORDERED TO PAY a total penalty of $73,799.00 within forty (40)
days of this decision.[32]

/s/
Richard L. Sippel

Richard
L. Sippel

Administrative
Law Judge

Distribution:

Christian P. Barber, MSHA
Litigation Backlog Project Manager, U.S. Department of Labor, Office of the
Solicitor, 211 7th Avenue North, Suite 420, Nashville, Tennessee 37219-1823

LaTasha Thomas, Esq., U.S. Department
of Labor, Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN
37219

Thomas A. Grooms, Esq., U.S.
Department of Labor, Office of the Solicitor, 618 Church Street, Suite 230,
Nashville, TN 37219

James F. Bowman, P.O. Box 99, Midway,
WV 25878

George Bowman, P.O. Box 99,
Midway, WV 25878

[1] Prior to
hearing, the parties agreed to vacate Citation Nos. 7522921 and 7522924 and
settle Citation Nos. 7503275, 7522928, 7522911, and 7522923, leaving nine citations
at issue in the hearing.

[2] At the time of
hearing, Inspector Doan had approximately 30 years’ experience in the mining
industry. He had worked in coal mines in a number of capacities, including jobs
as a roof bolter, belt shoveler, equipment operator, and section foreman. Tr. I
at 30. He began employment with MSHA in November 1999, where he works as a roof
control specialist. Tr. I at 30-31.

[3] Draw rock is
material from the mine roof that becomes separated from the rock above it and
is prone to fall while in this loose state. Tr. I at 61.

[4] The hearing in
this case was held over the course of two days. A separate volume of the
transcript was released for each day. Each volume begins with page one. To
avoid confusion, the Presiding Judge (“Judge” or “the Court”) will cite to each
of the two transcript volumes as “Tr. I” and “Tr. II.”

[5] A “mantrip” is
a vehicle that hauls miners and supplies to and from the work area. Tr. I at

92. A “rail runner mantrip” is a battery-powered, rail mounted mantrip. Tr. I
    at 64.

[6] Mr. Shepherd
had 28 years of experience in the mines. Tr. I at 128. He worked as a
repairman, a face boss, and the Bardo Superintendent who manages the mine. Tr.
I at 129.

[7] Inspector Dixon
has worked in coal mines since 1997. He worked in an underground coal mine as a
maintenance worker and greaser with Adena Fuels. Tr. I at 155. He then worked
for Harlan Cumberland Coal Company until 2006. Tr. I at 156. He learned how to
operate a ram car, a shuttle car, a scoop, and a roof bolter. Tr. I at 157. Mr.
Dixon has been an inspector for MSHA since 2006. Id.

[8] “ATRS” is an
“Automatic Temporary Roof Support” that can be used as an intermediate solution
to secure loose ceiling rocks.

[9] Inspector
Dixon’s notes indicate that the hazardous condition occurred in the No. 1
heading. GX 10A. He clarified at hearing that he had mistakenly inverted the
No. 1 and No. 5 for the headings while recording contemporaneous notes. Tr. I
at 197.

[10] “Pinner” is
another name for a roof bolter machine. Tr. I at 173.

[11] A “stab jack”
is an adjustable support that more down to contact a floor to stabilize a
drill. Tr. I at 179. As the ATRS reaches up and compresses against the mine
roof, the stab jack stabilizes the machine to keep it from pushing the drill
head down. Id.

[12] “Ramping up”
means reaching the mine roof then pulling back in order to remove the coal from
the bottom. Tr. I at 187.

[13] Inspector Dixon
noted that the “No. 3 was not bolted. It was 10 feet, 2 inches. The pinner
couldn’t reach it either.” Tr. I at 187.

[14] Inspector Dixon
did not issue a citation for this draw rock because the strapping along the
roof appeared adequate. Tr. I at 248.

[15] When an
operator realizes that the ATRS will not reach the mine roof, the operator is
supposed to shut the roof bolting operations down until they can obtain
equipment that can reach the mine roof. Tr. I at 195. In order to abate the
citation, Bardo had to move into another area of the mine that was shorter where
the bolters could reach the top. Tr. I at 196.

[16] Conveyor belts
have two sides: the travelway side and the off side. Tr. I at 277.

[17] “Return side”
and “off side” were interchangeable terms used throughout the hearing. See,
e.g., Tr. I at 312.

[18] The mine is
required to have a primary escapeway and an alternate escapeway. Tr. I at 317.

[19] A “lifeline” is
a nylon rope that is required to be installed in each escapeway. It is used for
directional purposes so miners can find their way out of a mine in an
emergency. Tr. I at 318.

[20] A “cutter” is a
linear fracture that occurs next to a rib line where roof meets pillar, and is
a significant indication that a beam may be failing. Tr. I at 319-320.

[21] All transcript
references for the remaining citations in this summary are found in Volume II
of the transcript. Citation No. 7558108 was the first violation discussed on
the second day of this hearing, prior to Citation No. 7558107. The citations
were considered in the order in which they were presented.

[22] Dust control
parameters are incorporated into a mine’s ventilation plan, which prescribes
the methods that operators use to control dust in the mine atmosphere in order
to prevent miners’ exposure to excessive amounts. Tr. II at 9.

[23] A “lift of
coal” is the run that the continuous miner takes along the coal seam before
backing up and starting again on another run. Tr. II at 63.

[24] MSHA’s
measurement at the Bardo No. 1 Mine on July 31, 2007, showed the largest
milligram standard to be .47 milligrams, four times below the 2.0 milligram
limit. Tr. II at 68.

[25] Mr. Randy
Bowman is not related to Mr. James (Jim) Bowman, Respondent Bardo’s in-court
representative in this matter. Tr. II at 74.

[26] The ”oil bath”
turns the tandem rollers inside the head drive; a “head drive” is a unit that
pulls a conveyor belt and enables the belt to turn and rotate. Tr. II at 136.

[27] There are
differences between “offside and onside” when belt factors are applied in
analyzing negligence and mitigation. But, the distinction has no place in
significant and substantial analysis. Even if fewer miners are exposed to a
hazardous condition, miners were present and, as an absolute, were exposed to
hazard and risk of injury.

[28] Inspector
Dixon’s methodology was to prepare same-day citations immediately following
inspection. He relied on contemporaneous notes that he made of potential
violations. The Citations and notes together were seen as reliable and
regularly prepared as business records.

[29] As noted
supra, testimony both pro and con is in the second volume of the court
transcript.

[30] See Tr.
II at 117 (describing Stamler Feeder).

[31] The Secretary’s
decision to vacate a citation is an exercise of prosecutorial discretion. RBK
Constr., Inc., 15 FMSHRC 2099 (Oct. 1993).

[32] Payment should
be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR,
PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 63179-0390.