Secretary of Labor v. Excel Mining, LLC

Plain-English summary

Excel Mining admitted two ventilation-plan violations during retreat mining at its gassy Van Lear Mine. One working face received 3,456 cubic feet of air per minute instead of the required 4,800 while visible dust surrounded the continuous-miner operator, and another area received 10,703 instead of the required 13,000. Judge Alan G. Paez upheld both significant-and-substantial designations because continued mining presented serious respirable-dust and methane-ignition hazards. He reduced negligence from moderate to low because MSHA did not establish how long or how widely the low-air conditions existed, the curtain adjustments were limited, and the evidence did not show a recurring low-airflow problem or deficient company policy. The Judge reduced the proposed combined penalties from $25,100 to $8,000.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.370(a)(1)
• Outcome: Both S&S violations were affirmed, negligence was reduced to low, and Excel was ordered to pay $4,000 for each citation.
• Key point: Rapidly changing mine conditions do not excuse strict-liability ventilation violations, but short duration, limited extent, and prompt correction can substantially mitigate negligence and penalties.

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:
202-434-9958 / FAX: 202-434-9949

December 4, 2014

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner,

v.

EXCEL
MINING, LLC,

Respondent.

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2011-1618

A.C.
No. 15-18839-265121

Mine:
Van Lear Mine

DECISION

Appearances:   Anthony M. Berry, Esq., U.S.
Department of Labor, Office of the Solicitor, Nashville, Tennessee, for
Petitioner;

Tyler H. Fields, Esq., Excel
Mining, LLC, Lexington, Kentucky, for Respondent.

Before:                        Judge
Paez

This
case is before me upon the Petition for the 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, 30 U.S.C. § 815(d). In dispute are
two section 104(a) citations issued to Excel Mining, LLC (“Excel” or
“Respondent”). To prevail, the
Secretary must prove his charges “by a preponderance of the credible evidence.”
In re: Contests of Respirable Dust Sample Alteration Citations, 17
FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11
FMSHRC 2148, 2152 (Nov. 1989)), aff’d sub nom., Sec’y of Labor v.
Keystone Coal Mining Corp., 151 F.3d 1096, 1106–07 (D.C. Cir. 1998). This burden
of proof requires the Secretary to demonstrate that “the existence of a fact is
more probable than its nonexistence.” RAG Cumberland Res. Corp., 22
FMSHRC 1066, 1070 (Sept. 2000) (citations and internal quotations omitted), aff’d,
272 F.3d 590 (D.C. Cir. 2001).

I.
 STATEMENT OF THE CASE

Both
of the alleged violations in this docket charge Excel with a violation of its
ventilation plan under 30 C.F.R. § 75.370(a)(1).[1]
The MSHA inspectors designated each violation as significant and substantial (“S&S”)[2]
and characterized Excel’s level of negligence as moderate. The Secretary
proposed specially-assessed penalties under his 30 C.F.R. § 100.5 regulations
based on Respondent’s history of violations at this mine. Specifically, the
Secretary proposed penalties of $13,600.00 and $11,500.00, respectively, for
Citation Nos. 8258130 and 8252975.

Chief
Administrative Law Judge Robert J. Lesnick assigned Docket No. KENT 2011-1618
to me, and I held a hearing in Pikeville, Kentucky.[3]
The Secretary presented testimony from Inspectors Jamie Hamilton and Billy
Stiltner. Excel presented testimony from Mine Engineer David Arrington. The
parties each filed closing briefs and reply briefs.

II.  ISSUES

The
parties have stipulated to the Commission’s jurisdiction in this case. (Ex. J–1
at

1–2.) The Secretary argues that the allegations underlying both citations are
valid and that his proposed penalties are appropriate.[4]
(Sec’y Br. at 6, 9–10, 14, 16–19.) Although Excel admits that the cited
conditions constituted violations, Respondent disputes the Secretary’s
allegations regarding gravity and negligence. (Resp’t Br. at 6–7; Resp’t Reply
at 7.) Specifically, Respondent argues that the Secretary has failed to demonstrate
either violation was S&S and claims its negligence in each case was low. (Resp’t
Br. at 6–7.) Further, Excel suggests that I modify Citation No. 8252975 to
reduce the number of miners affected from five to two. (Id.

at
7.) Finally, Excel contends that the penalties should be lowered in this case. (Id.)

Accordingly,
the following issues are before me: (1) whether the record supports the
Secretary’s assertions regarding the gravity of the alleged violations, including
whether each is S&S and whether Citation No. 8252975 affected five miners;
(2) whether the record supports the Secretary’s assertions regarding Excel’s negligence
in committing the alleged violations; and

(3) whether the Secretary’s proposed penalties are appropriate.

For
the reasons set forth below, Citation Nos. 8258130 and 8252975 are AFFIRMED as to the Secretary’s gravity
determinations and MODIFIED to reduce the levels of negligence from
“moderate” to “low.”

III.  FINDINGS
OF FACT

A.        Basic
Mining Phases at Van Lear Mine

The Van Lear Mine is an underground coal
mine located in Martin County, Kentucky. (Ex. G–4 at 1.) Room-and-pillar mines
like the Van Lear Mine produce coal in two phases. (See Tr. 21:13–15, 32:21–23,
50:14–51:4, 55:20–57:13.) In the first phase—known as advance mining—an
operator uses a continuous mining machine to bore deeper into different
sections of the mine. (See Tr. 55:20–57:13, 153:12–15, 165:3–10.) The
continuous mining machine cuts through the coal seam in long corridor-like
entries and perpendicular crosscuts. (See Ex. G–3; Ex. G–3A; Ex. G–8;
Ex. G–8A; Ex. R–1; Tr. 153:25–154:4.) However, the resulting square or
rectangular “pillars” of coal within the seam are not simultaneously mined;
instead, those pillars remain in place to provide support for the overlying
rock and dirt as the operator advances deeper into the mine. (Tr. 165:3–10.) Thus,
when viewed from above, working sections at Van Lear Mine—also known as panels—in
the advance mining phase resemble checkerboards, with entries and crosscuts
surrounding pillars of coal. (Ex. G–3; Ex. G–3A; Ex. G–8; Ex. G–8A; Ex. R–1.)

When the mine operator reaches the end
of a coal panel, the process enters the second phase, which is known as retreat
mining. (Tr. 151:19–152:5, 165:11–15; Ex. G–3; Ex. G–3A; Ex. G–8; Ex. G–8A; Ex.
R–1.) In this phase, the operator removes portions of certain coal pillars on
the panel sequentially as it “retreats” towards the entrance to the panel. (Tr.
50:14–51:4, 112:14–113:3, 151:19–152:5, 165:11–18.) As the operator retreats, the
mine roof may collapse because the weight of the rocks and dirt above is no
longer being supported—creating a refuse area called “gob.” (Tr. 146:19–24,
148:1–10.) Because methane and other dangerous gases collect in the gob, mine
operators must continue to ventilate it even though no additional mining
activity will occur in these areas. (Tr. 48:9–49:14, 50:14–51:7, 55:20–56:10,
57:5–7, 113:12–114:5, 146:25–147:10.) Proper ventilation of gob areas includes
the retention of a series of pillars—also known as bleeder blocks—around the
outside of the gob, which provides a pathway to ventilate fresh air into and through
the gob, thus forcing those dangerous gases out of the mine. (See Tr.
48:9–49:14, 56:4–10, 57:5–7, 113:23–114:5, 121:16–20, 178:8–20; Ex. G–4 at 31.)
This air pressure on the gob also helps ensure that those gases do not seep
back into the active mining section.[5]
(Tr. 113:12–114:5, 114:24–115:8, 121:7–20, 126:4–13, 132:17–21, 133:17–134:16.)
Accordingly, panels at the Van Lear Mine in the retreat mining phase continue
to resemble checkerboards around their borders, but they contain large gob areas
in the center of the ring created by the bleeder blocks. (Ex. G–3; Ex. G–3A;
Ex. G–8; Ex. G–8A; Ex. R–1.)

B.        Ventilation
Controls at the Van Lear Mine

Methane gas and respirable dust are two dangerous
by-products of the coal mining process. (See Tr. 22:2–20, 38:24–39:10.) In
certain concentrations, methane is an explosive gas. (Tr. 60:10–14.) The Van
Lear Mine is a gassy mine, which liberates more than 500,000 cubic feet of
methane within a twenty-four hour period. (Tr. 22:2–20.) Based on the volume of
methane the Van Lear Mine liberates, MSHA placed the mine on a ten-day spot
exam schedule requiring MSHA inspectors to take bottle samples every ten days
to test for methane accumulations. (Tr. 22:7–12, 131:18–21, 164:6–14.) In
addition, exposure to silica in respirable dust form contributes to serious
lung diseases. (Tr. 39:24–40:22, 45:21–46:11, 67:14–68:10.)

In accordance with 30 C.F.R. §
75.370(a)(1), Excel also submitted a ventilation plan to MSHA on April 27,
2010, and MSHA approved the plan on May 10, 2010 (“May 10 Plan”). (Ex. G–4; Ex.
G–4A.) To control methane and dust produced in the mining process, the plan
required Excel to provide fresh air with a velocity of at least 4,800 cubic
feet per minute (c.f.m.) at any face where coal is being mined. (Ex. G–4 at 9, 11,
31; Ex. G–4A at 9, 11, 31; Tr. 36:4–14, 36:23–37:4, 125:5–15.) In addition, the
May 10 Plan required Respondent to provide at least 13,000 c.f.m. of air on the
intake side of the pillar line. (Ex. G–4 at 9, 11, 31; Ex. G–4A at 9, 11, 31;
Tr. 108:18–109:22.) During retreat mining, Excel was required to ensure at
least 7,000 c.f.m. reached the deepest part of the panel, after the air passed
through the gob and the bleeder blocks. (Ex. G–8; Ex. G–8A; Ex. R–1; Tr.
127:13–128:13, 174:4–7, 174:23–175:3.)

C.        Inspections
– January 24, 2011

Inspectors Hamilton and Stiltner visited
the Van Lear Mine to conduct a complete inspection of the mine on January 24,
2011. (Tr. 22:21–23:8, 90:20–21, 91:23–24, 92:21–93:3; Ex. G–2 at 1; Ex. G–7 at
1.) At the time, Excel had begun the retreat mining phase and was removing
pillars from the Van Lear Mine’s Panel 6 using two separate continuous mining
machines.[6]
(See Tr. 100:2–13, 102:5–105:9.) On January 24, day shift miners began
cutting coal in Panel 6 at approximately 7:30 a.m. (Tr. 32:11–13.)

The roof of Panel 6 was made of
sandstone, which contains quartz.[7]
(Tr. 32:24–33:4; Ex. G–5.) In addition, the continuous miner frequently created
sparks when its carbide tip bits struck the mine roof. (Tr. 116:17–20.) These
sparks provided potential ignition sources. (Tr. 116:17–20.)

Panel 6 included six entries. When
looking towards the working face, the No. 1 Entry was located on the far left
and the No. 6 Entry was located on the far right. (Ex. G–3A; Ex.

G–8A;
Tr. 27:8–31:16, 37:6–8, 100:8–103:23.) Because Excel employed two separate
continuous miners on the Panel, Respondent provided separate air courses of
fresh air for each mining unit. (See Tr. 102:5–12, 104:11–15,
120:12–121:20.) Thus, the intake air traveled up the No. 3 Entry, then split
into separate air courses when it reached the last open crosscut.

(Tr. 101:17–24, 102:10–12; Ex. G–3A; Ex. G–8A.)

Hamilton and Stiltner arrived at the
mine at approximately 8:00 a.m., met with Excel personnel at the surface, and
examined preshift and on-shift reports. (Ex. G–2 at 1; Ex. G–7 at 1, Tr.
25:8–11, 54:12–21, 94:24–95:2, 129:6–12.) Along with Excel’s Curtis Webb and
Mike Hurley, the inspectors then traveled to Panel 6 and completed an imminent
danger run of the retreat mining section. (Ex. G–2 at 1–4; Ex. G–7 at 1–3; Tr.
25:15–24, 93:12–20, 130:9–12.) At this point, Hamilton inspected the right side
of the panel while Stiltner inspected the left. (Ex. G–3A; Ex. G–8A; Tr. 100:12–103:23,
104:11–23, 109:17–25.)

1.                 
Hamilton’s
Inspection and Citation No. 8258130

As Inspector Hamilton approached the No.
6 entry, he noticed the 008 MMU cutting into the pillar bounded by the entry
and the last open crosscut. (Tr. 27:25–31:18, 32:14–20.) The machine operator
had just begun his cut a few minutes earlier, cutting the bottom of the pillar
near the floor. (Tr. 39:11–15, 57:14–59:7, 82:2–12.) As the mining machine
operator made his cut, Hamilton also observed a cloud of dust surrounding the operator.
(Tr. 38:16–23, 41:5–10, 67:9–13, 73:23–74:2; Ex. G–2 at 6.) Although Hamilton
did not collect bottle samples of this dust, he witnessed the machine operator
standing in the dust and inhaling without any respirator or dust mask. (Tr.
40:19–41:2, 41:11–15, 62:11–18, 74:3–5.) He also learned that neither the
section foreman nor the machine operator had taken an air reading prior to
beginning the cut. (Tr. 46:19–47:8, 50:2–7, 53:12–23; Ex. G–2 at 8.) Hamilton
did not detect any methane present in the working section. (Tr. 60:18–21, 78:15–18,
82:24–83:1.)

At that point, Hamilton measured the air
flow at the continuous mining machine using an anemometer. (Tr. 37:10–19.) He
recorded an air velocity of 3,456 c.f.m., which was below the 4,800 c.f.m.
required under the May 10 Plan. (Tr. 37:20–25, 49:15–23; see Ex. G–4 at 9, 11,
31; Ex. G–4A at 9, 11, 31.)

Based on his inspection, Hamilton issued
Citation No. 8258130 at 10:30 a.m., providing:

The compan[y’s] Ventilation plan is not
being followed for the 008 MMU. While cutting in the [No.] 6 [E]ntry[,] 3456
cfm was measured going over [the] miner when checked with calibrated anemometer
while cutting in [the] 1st sump of pillar block. The compan[y’s] plan requires
4800 cfm as stated on page 31 of the ventilation plan. The miner had visible
float dust suspended in the air around [the] miner and miner man. The
continuous miner was cutting in sandstone roof. This condition exposes miners to
the dangers associated with lung disease. This mine also on a 10 day spot
liberating 500,000 cubic ft of methane in a 24 hour period. This condition
exposes miners to the dangers associated with an ignition. Standard
75.370(a)(1) was cited 50 times in two years at [this mine] (50 to the
operator, 0 to a contractor).

(Ex.
G–1 at 1–2.) Hamilton marked the citation as S&S and indicated the
condition affected one person. (Id. at 1.) Hamilton also characterized
Excel’s negligence as moderate. (Id.) To abate the violative condition,
Respondent spent approximately 10 minutes tightening ventilation curtains on Panel

6. (Id.; Tr. 47:9–18, 51:18–53:7; Ex. G–2 at 7.) At the hearing,
   Hamilton admitted that he had no basis for determining the length of time this cited
   condition existed. (Tr. 63:24–64:14, 74:13–19.)

2.                 
Stiltner’s
Inspection and Citation No. 8252975

When Inspector Stiltner began to inspect
the left side of the working section, he noted that the 007 MMU was completing
its pillar removal work in the No. 3 Entry and moving into the No. 2 Entry. (Tr.
105:11–16, 112:14–113:3, 114:11–23, 147:11–23; Ex. G–7 at 4–5.) At the time,
two miners were setting timbers in the No. 2 Entry and three miners had moved
into the No. 3 Entry. (Tr. 112:14–113:3; Ex. G–7 at 4.) Stiltner took an air
reading while positioned in the last open crosscut between the No. 2 and No. 3
entries. (Tr. 122:16–21; Ex. G–8A.) He recorded an air velocity of 10,703 c.f.m.,
which is below the 13,000 c.f.m. required under the May 10 Plan. (Tr.
111:11–18, 120:25–121:2; Ex. G–7 at 5, 9.) Stiltner did not detect any methane
on the section. (Tr. 115:9–14, 130:9–131:14; Ex. G–7 at 4, 9.)

In light of his observations, Stiltner
issued Citation No. 8252975 at 11:15 a.m., providing:

The approved ventilation plan is not
being followed on the 007-0 [sic] MMU. When measured with a calibrated
anemometer only 10,703 cfm of air is present at the intake side of the pillar
line. Page 9 of the approved plan, dated [May 10, 2010], states that a minimum
of 13,000 cfm of air will be maintained at the intake side of the pillar line. This
mine is on a 103(i) 10 day spot with a history of liberating in excess of
500,000 cubic feet of methane in a 24 hour period. This inadequate ventilation
exposes the miners who work on this section, three shifts per day five to six
days per week, to the hazards associated with the buildup of methane. [Section]
75.370(a)(1) was cited 50 times in two years at [the Van Lear Mine] (50 to the
operator, 0 to a contractor).

(Ex.
G–6.) Stiltner designated the citation as S&S and indicated that five
miners were likely to be affected. (Id.) He also characterized
Respondent’s negligence as “moderate” in this case. (Id.) Stiltner
suggested that the foreman might have been able to feel the difference between
13,000 c.f.m. and 10,703 c.f.m. (Tr. 119:9–16, 143:7–144:14.) However, Stiltner
did not know how long this condition existed. (Tr. 117:21–118:3.) Excel again
tightened ventilation curtains and the citation was abated thirty minutes after
being issued. (Tr. 118:2–4, 119:17–120:6, 134:17–137:21, 144:22–146:18; Ex. G–6.)

IV.  PRINCIPLES
OF LAW

A.        Significant
and Substantial

A violation is
S&S “if, based on the particular facts surrounding that violation, there
exists a reasonable likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981). To establish an S&S violation, the
Secretary 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, 3–4 (Jan. 1984) (footnote omitted); see also Buck
Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133,
135–36 (7th Cir. 1995) (affirming ALJ’s application of the Mathies
criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th
Cir. 1988) (approving the Mathies criteria).

The
Commission has also provided guidance to Administrative Law Judges in applying
the Mathies test. The Commission indicated that “an inspector’s judgment
is an important element” in an S&S determination. Mathies, 6 FMSHRC
at 5 (citing Nat’l Gypsum, 3 FMSHRC at 825–26); see also Buck Creek
Coal, 52 F.3d at 135 (stating that ALJ did not abuse discretion in
crediting opinion of experienced inspector). The Commission has also observed
that “the reference to ‘hazard’ in the second element is simply a recognition
that the violation must be more than a mere technical violation—i.e., that the
violation present a measure of danger.” U.S. Steel Mining
Co., 6 FMSHRC 1834, 1836 (Aug. 1984) (emphasis added) (citing Nat’l
Gypsum, 3 FMSHRC at 827). Moreover, the Commission clarified “the correct
inquiry under the third element of Mathies is whether the hazard
identified under element two is reasonably likely to cause injury.” Black
Beauty Coal Co., 34 FMSHRC 1733, 1742 n.13 (Aug. 2012). Finally, the
Commission has specified that evaluation of the reasonable likelihood of
injury should be made assuming continued mining operations. U.S. Steel
Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining
Co., 6 FMSHRC 1573, 1574 (July 1984)).

B.        Negligence

Although
the Secretary’s part 100 regulations are not binding on the Commission, the
Secretary’s definitions of negligence in those provisions are illustrative. According
to the Secretary, negligence is
“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). These standards indicate that high negligence is found where
“[t]he operator knew or should have known of the violative condition or
practice, and there are no mitigating circumstances.” Id. at Table X. Moreover,
the standards prescribe moderate negligence where “[t]he operator knew or
should have known of the violative condition or practice, but there are
mitigating circumstances.” Id. Finally, low negligence is found where “[t]he
operator knew or should have known of the violative condition or practice, but
there are considerable mitigating circumstances.” Id.

C.        Penalties

Although the
Secretary proposes penalties, the Commission assesses penalties for violations
of the Mine Act de novo. Douglas R. Rushford Trucking, 22 FMSHRC
598, 600 (May 2000). When assessing a civil penalty, section 110(i) of the Mine
Act requires that I consider six criteria, including: the operator’s history of
previous violations, the appropriateness of the penalty relative to the size of
the operator’s business, the operator’s negligence, the penalty’s effect on the
operator’s ability to continue business, the gravity of the violation, and the
demonstrated good faith of the operator in attempting to achieve rapid
compliance. 30 U.S.C.

§
820(i). The criteria are not required to be given equal weight. Jim Walter
Res., Inc.,

36 FMSHRC 1972, 1979 (Aug. 2014).

V.  FURTHER
FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW

A.        Citation
No. 8258130

As
explained above, Inspector Hamilton issued Citation No. 8258130 as the result
of conditions he identified during his January 24, 2011, inspection of the Van
Lear Mine. See discussion supra Part III.C.1. Although Excel
admitted that the cited conditions were a violation of 30 C.F.R. §
75.370(a)(1), Respondent contends that the Secretary has not satisfied his
burden of proving his allegations regarding gravity and negligence. See
discussion supra Part II.

1.      Gravity and S&S

The Secretary contends that he has
satisfied all four elements of the Mathies’ test for S&S.[8] (Sec’y Br. at
8–9.) Respondent does not dispute the fact of violation or seriousness of the
injury that is likely to result from prolonged exposure to respirable dust. (Resp’t
Br. at 8.) Accordingly, Excel admits that Mathies’ first and fourth
elements have been satisfied. (Id.) However, Respondent claims that the
Secretary has not met his burden of proving that the violation contributed to a
discrete safety hazard. (Id. at 9–11.) In the alternative, Excel also
argues that the Secretary has not demonstrated that the discrete safety hazard
is reasonably likely to result in an injury. (Id. at 11–15.) Given the
evidence before me, I determine that the Secretary has satisfied his burden of
proof on both the second and third Mathies’ elements.

First, the record in this case
demonstrates that Excel’s violation of its ventilation plan contributed to a
discrete safety hazard. Inspector Hamilton specifically identified dust
exposure as the hazard to which Excel’s violation would contribute. (Tr.
40:14–16, 78:23–79:2) When Hamilton arrived on Panel 6, he observed the operator
of the continuous mining machine surrounded by visible dust. Further, the
machine operator was not wearing a respirator or dust mask, which meant that he
was breathing in the dust surrounding him. Although Hamilton did not take
bottle samples of the dust he observed, he credibly testified that the sandstone
roof would provide a source of quartz, which is a source of hazardous
respirable dust.[9]
As the operator cut into the top of the coal pillar, Excel’s violative and insufficient
air flow would allow dust to continue to collect around the miner. Indeed,
Hamilton credibly testified that the low air velocity increased the amount of
dust flowing over the machine operator. (Tr. 77:14–19.)

Hamilton is also an experienced inspector
and miner. (Tr. 16:17–18:15.) As mine foreman and section boss, Hamilton had
been responsible for ventilation and the safety of miners underground. (Tr.
17:7–18:1.) Thus, his opinion is entitled to significant weight. See Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278–79 (Dec. 1998) (relying on the
opinion of an experienced inspector to conclude that substantial evidence
supported an ALJ’s S&S determination). Accordingly, I determine that Excel’s
violation of its ventilation plan contributed to the hazard of respirable dust
inhalation.

Second, the record before me also demonstrates
that this dust hazard was reasonably likely to result in an injury. Hamilton
credibly testified that brief exposure to respirable dust contributes to black
lung disease and silicosis. He also indicated that the low air velocity and
presence of dust surrounding the machine operator made this hazard reasonably
likely to result in injury. In contrast, Excel argues that “[t]he nature of the
retreat mining process makes it impossible to sustain this exposure to the
degree that it is reasonably likely illness will occur.”[10]
(Resp’t Br. at 12.) Yet in the context of respirable dust hazards, the
Commission has not cast the reasonable likelihood of injury analysis in
durational terms. Consolidation Coal Co., 8 FMSHRC 890, 894–99 (June
1986) [hereinafter “Consol I”], aff’d, 824 F.2d 1071 (D.C. Cir. 1987); see
also Oxbow Mining LLC, 35 FMSHRC 932, 947 & n.3 (Apr. 2013) (ALJ)
(citing Air Quality Standards for Abrasive Blasting and Drill Dust Control, 59
Fed. Reg. 8318, 8319 (Feb. 18, 1994) (indicating in preamble that inhalation of
relatively small amounts of freshly fractured silica particles may contribute
to the development of acute silicosis)); Pine Ridge Coal Co., 34 FMSHRC
291,304 (Jan. 2012) (ALJ) (discussing “the nebulous, progressive nature of
black lung disease . . . .”). In fact, in the context of dust sampling standard
violations, the Commission has adopted a presumption that respirable dust hazards
are reasonably likely to result in injury, regardless of the duration of
exposure. Consol I, 8 FMSHRC at 894–99; Consolidation Coal Co.,
17 FMSHRC 250, 254 (Mar. 1995) [hereinafter “Consol II”] (“To the extent the judge
suggested that short periods of exposure to respirable dust are exempt from the
presumption . . . we agree . . . that he erred.”).

Although the Commission has not extended
a comparable presumption in the context of respirable dust hazards arising out
of ventilation plan violations, the direct and indirect evidence before me
demonstrates that the respirable dust hazard was reasonably likely to result in
injury in this case. The machine operator was engulfed in a cloud of dust, yet he
did not wear a respirator or mask. The sandstone roof contained quartz. Brief
exposure to dust containing quartz and silica contributes to silicosis. In the
course of continued mining operations, these conditions were reasonably likely
to continue. Accordingly, I determine that Mathies’ fourth element has
been satisfied.

Based
on the forgoing, Excel’s admissions and the record before me have satisfied
each of the four elements of Mathies. Thus, I conclude that Citation No.
8258130 was appropriately designated as S&S.

2.                 
Negligence

Here, Respondent has admitted that it
violated the May 10 Plan because it did not provide the required air velocity
at the continuous miner, and I have concluded that Citation No. 8258130 was
properly designated as S&S. Moreover, the Mine Act is a strict liability
statute. Regardless of whether a miscommunication occurred, Excel had a duty to
comply with its ventilation plan under section 75.370(a)(1). Thus, Respondent
reasonably should have known of the violative condition. That condition also
presented a danger to Excel’s miners. Accordingly, I determine that Respondent’s
failure to fulfill its duties, thus exposing its miners to dust inhalation
dangers, constitutes negligent conduct. Nevertheless, the Secretary has the
burden of proving Respondent’s level of negligence. See 30 C.F.R.
§ 100(d) at Table X (indicating that an operator’s level of negligence turns
not only its reason to know of the violative condition, but also any mitigating
factors).

In this unusual case, I am presented
with arguments for three different levels of negligence: low (Excel); moderate
(Inspector Hamilton); and high (the Secretary). Here, Inspector Hamilton
initially marked this citation as resulting from Excel’s moderate negligence. However,
the Secretary has asked that I increase the level of negligence from moderate
to high. See discussion supra note 4. In support of his
allegations, the Secretary claims the section foreman should have taken an air
reading before allowing the mining machine operator to begin his pillar cut and
notes that the foreman admitted he had not done so. (Sec’y Br. at 9–10.) Thus,
the Secretary suggests the foreman’s “awareness of his own inaction and
willingness to subject the miner to the, at the time, unknown danger of
deficient ventilation demonstrated an absence of mitigating circumstances.” (Id.
at 9–10.) In other words, the Secretary appears to imply indifference on the
part of the section foreman. Cf. San Juan Coal Co., 29 FMSHRC 125, 136
(Mar. 2007) (suggesting that high negligence often correlates with
unwarrantable failure); see also Rochester & Pittsburgh Coal Co., 13
FMSHRC 189, 194 (Feb. 1991) (noting that unwarrantable failure includes
indifference, serious lack or reasonable care, reckless disregard, and
intentional misconduct.)

Conversely, Excel
contends its conduct in this case constituted a low level of negligence. Excel
disputes that it had reason to know the air velocity at the continuous mining
machine was insufficient. (Resp’t Br. at 15.) Instead, Excel claims this
failure resulted from a “miscommunication between the section foreman and the
miner operator.” (Resp’t Reply Br.

at
2.) Further, Respondent notes that Inspector Hamilton provided no indication
regarding the duration of the violative condition. (Resp’t Br. at 15–16.) Excel
therefore characterizes the foreman’s failure to take an air reading prior to
the beginning of the pillar cut as inadvertent. (Resp’t Br. at 15; Resp’t Reply
Br. at 2–3.)

Based on the record before me, three
factors convince me that Excel’s conduct is consistent with a low level of
negligence. First, the Secretary’s evidence falls well short of demonstrating the
indifference the Secretary suggests in his posthearing brief. Inspector Hamilton
testified that the machine operator told him that he did not take an air
reading because he believed the mine foreman had taken one. In addition, Hamilton
indicated that when he himself worked as a section foreman, he had been trained
to take readings prior to every cut of coal to ensure that he had sufficient
air velocity. Thus, the Secretary infers indifference from the section
foreman’s failure to take an air reading before the cut began. Although such a
policy might be one effective method to ensure compliance with a
ventilation plan, Hamilton admitted that section 75.370(a) did not require the
section foreman to take an air reading at the beginning of every cut. (Tr.
54:22–55:19.) Moreover, Inspector Hamilton admitted that he did not know
Excel’s practices and policies. (Tr. 80:21–81:11.) Without those details, the
Secretary falls short of his suggested inference. Perhaps the machine
operator—rather than the section foreman—ordinarily measures the air velocity,
but failed to do so in this case because he misunderstood his foreman. Perhaps
the section foreman expected the machine operator to take an air reading. Hamilton
is an experienced miner, but here he simply did not provide a basis to infer indifference
on the part of the section foreman.

Second, Excel’s history of 30 C.F.R. §
75.370(a)(1) violations in the previous two years (Tr. 46:15–18, 73:12–15) does
not support an inference that the section foreman was indifferent. Inspector Hamilton
could not provide any details regarding any of those prior citations or explain
any similarities to Citation No. 8258130. (Tr. 71:2–73:11.) The Secretary need
not provide voluminous details regarding these previous ventilation plan
violations, but merely highlighting past violations of this far-reaching
standard does not suggest to me a lack of concern for the machine operator’s
safety in this case. I also note that Citation No. 8252975, which is the other
citation involved in this docket, occurred the same day on the same section. That
violation of the ventilation plan also required Excel to tighten its
ventilation curtains. See discussion supra Part III.C.2. Although
I understand the Secretary’s concern that two separate violations of the May 10
Plan occurred on Panel 6 at the roughly the same time, neither inspector linked
the violations in their testimony. Without more, it is unclear why this
temporal link alone should demonstrate the section foreman’s disinterest in the
safety to Excel’s miners. Under the circumstances, I cannot determine that the section
foreman’s action or inaction constituted indifference to the endangerment of
the machine operator. Thus, the Secretary has not shown that Excel’s level of
negligence was high.

Third, the Secretary’s inability to demonstrate
either the duration or extent of the ventilation problems on Panel 6
significantly mitigates Excel’s reason to know of this violation. Cf. 30
C.F.R. § 100.3(d) at Table X (suggesting “low” negligence is appropriate where
the mitigating circumstances are “considerable.”) Indeed, Hamilton found no
indication in Excel’s preshift reports that Panel 6 had previously experienced any
ventilation problems. (Tr. 54:12–21.) Further, he could not identify which
ventilation curtains were adjusted to abate the violation. (Tr. 52:6–8,
64:20–65:17, 74:6–12.) However, Hamilton indicated that in underground coal
mining it is common for ventilation to leak air and to require adjustment. (Tr.
52:18–53:7.) Despite the significant hazard this condition presented, I recognize
that mining conditions change rapidly. At times, such dynamism may allow
methane to accumulate quickly. See discussion infra Part V.B.1. In
this context, however, the potentially brief duration significantly mitigates
Respondent’s reason to know of the violative condition. Further, the adjustment
of the ventilation curtains appears to be a somewhat common event in
underground coal mining, and Excel restored the required ventilation within ten
minutes. Accordingly, these minor adjustments also mitigate Excel’s reason to
know of the violation.

Notwithstanding the danger the cited
condition presented, in light of the seemingly brief duration and minor extent,
I conclude that Excel’s conduct constituted a low level of negligence, and
Citation No. 8252975 is MODIFIED to change the cited level of negligence
to low.

B.        Citation
No. 8252975

While Inspector Hamilton conducted his
inspection of Panel 6 that led to his issuance of Citation No. 8258130, his
colleague Inspector Stiltner simultaneously inspected the left side of Panel 6.
See discussion supra Part III.C.2. Stiltner likewise identified a
violation of 30 C.F.R.

§ 75.370(a)(1) and issued Citation No. 8252975. Excel again admitted that the cited
conditions constituted a violation of its ventilation plan, but Respondent again
contends that that Secretary has not satisfied his burden of proving his
gravity and negligence allegations. See discussion supra Part II.

1.                 
Gravity

a.                 
S&S

The Secretary
claims in his posthearing brief that potential sources of methane and ignition
sources on Panel 6 demonstrate that Citation No. 8252975 was S&S. (Sec’y
Br. at 14–16.) Specifically, the Secretary notes that methane could accumulate
quickly on Panel 6 because the Van Lear Mine was a gassy mine. (Id. at
15–16.) The Secretary also suggests that methane may collect in the gob areas and
leak back onto the panel if Excel did not provide adequate ventilation. (Id.)
Finally, the Secretary claims that the continuous miner and shuttle cars provided
ignition sources. (Id. at 16.)

Although
Respondent concedes that the first, second,[11] and fourth
elements of the Mathies test have been satisfied, Excel argues that the
Secretary has not satisfied his burden of proving that the methane explosion
hazard was reasonably likely to cause injuries. (Resp’t Br.

at 16–22.) First, Excel notes that no methane was present at the time of the
inspection and disputes whether a roof fall would force methane out of the gob
and into the working area. (Id. at 18–19.) Second, Excel argues that the
Van Lear Mine liberated less methane during the retreat mining of Panel 6 than
it did during advance mining. (Id. at 21–22.) Respondent therefore surmises
that the confluence of factors do not demonstrate that a methane ignition
hazard was reasonably likely to result in injury. (Id. at 22.)

Looking at the
evidence before me, it is uncontroverted that sparks from the continuous mining
process would provide an ignition source. Thus, this case turns on whether
methane gas would be present in the course of continued mining operations. As
the Secretary notes, the Van Lear Mine is a gassy mine that liberated more than
500,000 cubic feet of methane every twenty-hour hours. Indeed, the high levels
of methane liberation at Van Lear prompted MSHA to perform spot inspections at
the mine every ten days.

Furthermore,
MSHA required the mine to provide ventilation pressure through the gob area and
out of the bleeder system to prevent accumulation of methane in the gob. Regardless
of what air pressure must be maintained at the back side of the gob and
bleeder blocks, Excel fell well short of the 13,000 c.f.m. required on the
working section. Insufficient air pressure through the gob would allow methane
to accumulate in the course of continued mining operations. If a roof fall
occurred in the gob area, some of that methane might be forced back on to the
working section. As Stiltner explained, the minimum requirements of a
ventilation plan are critical: “If [10,000 c.f.m. were enough air], they would
probably have 10,000 in their plan. So there was a reason it was 13,000. It was
either the mine being on the [ten-day] spot or a history of

methane. . . . So evidently, 10[,000] wasn’t enough.” (Tr. 117:16–20.)

In addition, I accord
little weight to Mine Engineer Arrington’s testimony that the pillars removed
in retreat mining liberate smaller amounts of methane because some of the pillars’
methane has escaped as the advance mining process bored deeper into the mine. (Tr.
176:17–177:8, 178:21–179:10.) Although Stiltner agreed that methane would
continue to escape from the coal pillars as the operator advanced (Tr.
153:25–154:22), neither Arrington nor Stiltner quantified, either in terms of
cubic feet or percentages, the amount of methane that would dissipate from the
coal pillars between the advance mining and retreat mining phases. Without that
critical detail, I have no basis to infer that the Van Lear mine’s retreat mining
panels were no longer “gassy.” Moreover, Arrington did not address Stiltner’s
testimony that a roof fall in the gob area could force methane back onto the
working section, providing fuel for an ignition.

Here, the
Secretary has demonstrated that ignition and methane sources would be present
in the course of continued mining operations. In light of the record and
confluence of factors before me, I determine that a methane ignition hazard was
reasonably likely to cause injuries in the course of continued mining
operations, which satisfies Mathies’ third element. Given Excel’s
concession of the remaining elements of the Mathies test, I therefore
conclude that Citation No. 8272975 was properly designated as S&S.

b.                 
Number of Miners
Affected

The Secretary claims that the deficiency
in airflow affected the safety of all five miners on the 007 MMU because the
intake air was used to ventilate the whole section and miners work in close
proximity during retreat mining. (Sec’y Br. at 17.) In contrast, Excel contends
that the violative condition did not affect five miners and asks that I reduce
the number of miners from five to two.[12] (Resp’t Br. at
23.) Looking at the evidence before me, I note that two of the members of the
007 MMU were located in the No. 3 Entry as the miner prepared to cut in the No.
2 Entry. However, Stiltner specifically testified that miners work in close
proximity during the retreat mining phase. (Tr. 112:8–13.) In light of the
record, I determine that these miners would have returned in close proximity to
the continuous mining machine in the course of continued mining operations. Accordingly,
I conclude that Citation No. 8252975 would affect five miners.

2.                 
Negligence

The Secretary’s argument in this case reiterates
his negligence theory for Citation No. 8258130: Excel was negligent because the
section foreman or miner was responsible for taking air readings during his
preshift examination, but failed to do so. (See Sec’y Br. at 17.) Yet, unlike
Citation No. 8258130, the Secretary characterizes Respondent’s negligence in this
case as “moderate” rather than “high.”

Given the similarities between the
cases, it is unclear why the Secretary’s theory leads to different results for
the two violations before me. As with Citation No. 8258130, I have concluded
that Citation No. 8252975 was appropriately designated as S&S in the
context of continued mining operations. Like his colleague, Inspector Stiltner
was unable to describe similarities between Citation No. 8252975 and any of
those violations. (Tr. 139:25–141:2, 120:22–121:6, 134:17–21, 135:8–12, 146:2–146:8.)
Stiltner also admitted that that he did not know how long the violative condition
existed and could not describe the details of the curtain adjustments Excel
made on Panel 6. (Tr. 141:7–142:2.) Finally, those curtain adjustments were
completed in just a half-an-hour, which suggests they were not extensive.

In light of the record before me and
similarities between the cases, I again conclude that Excel’s level of negligence
was low. Excel has a duty to maintain the required air velocity, and Respondent
was negligent in failing to ensure it had the required air coursing through
this section before mining. Nevertheless, the Secretary has provided no
evidence describing that these conditions existed for a significant amount of
time or extended across a large portion of Panel 6. He also presented no
evidence regarding Respondent’s air measurement policies or linking the present
violation to any of the fifty previous ventilation plan violations at the Van
Lear Mine. Finally, Respondent was able to restore the required air flow in
just thirty minutes. Accordingly, the apparent short duration and limited
extent of the ventilation failure on Panel 6 significantly mitigates
Respondent’s negligence in this case. 30 C.F.R. § 100.3(d) at Table X
(suggesting “low” negligence is appropriate where the mitigating circumstances
are “considerable.”)

Based on the above, I determine that
Excel’s conduct constituted “low” negligence, and Citation No. 8252975 is MODIFIED
to change the cited level of negligence to low.

C.        Penalty
Assessment

Turning
to the six penalty factors specified in section 110(i) of the Mine Act, I note
that Excel has stipulated that the proposed penalty would not affect its
ability to remain in business. (Ex. J–1 at 2.) Moreover, nothing in the record
suggests the proposed penalties are inappropriate for the size of the mine, and
I also note that Respondent promptly abated each citation in good faith. Although
I have affirmed the Secretary’s gravity determinations, I have modified each
citation to reduce Excel’s level of negligence to “low.” Finally, the Secretary’s
Assessed Violation History Report lists 37 final citations or orders within the
previous fifteen months at the Van Lear Mine that involved 30 C.F.R. §
75.370(a)(1). Of those final citations and orders, only six were designated as
S&S.

I
recognize that the Secretary has proposed special assessments of $13,600.00 and
$11,500.00, respectively, for Citation Nos. 8258130 and 8252975. However, the
Secretary’s proposed penalties are not binding upon me. I also recognize that both
violations exposed Excel’s miners to serious dangers. Had the Secretary
demonstrated the substandard air velocity existed for a significant amount of
time or required major efforts to restore the required air flow, had resulted
from poor internal policies at Excel, or had been a recurring problem at the
Van Lear Mine, I might have been inclined to affirm his negligence
determinations and, therefore, his proposed penalties. However, I note that the
Secretary presented no evidence demonstrating the duration or extent of the
conditions in question. Likewise, he provided no evidence suggesting
Respondent’s policies led to the low air velocity or that low air velocity at
the miner or in the intake entry was an on-going problem at the mine. As I
noted, conditions often change rapidly in an underground mine. Given this
rapidly changing environment, even a fastidious operator may sometimes fail to provide
the air velocities required under their plans. The Mine Act is a strict
liability statute, and this dynamic environment does not excuse those failures.
However, I have determined Respondent’s negligence to have been low. I therefore
determine that a penalty of $4,000.00 for each violation is appropriate based
on the six section 110(i) factors.

VI.  ORDER

In light of the
foregoing, I hereby ORDER that Citation Nos. 8258130 and 8252975 are AFFIRMED as S&S and MODIFIED to
reduce the level of negligence from “moderate” to “low.” Excel Mining,
LLC is ORDERED to PAY a civil penalty of $8,000.00 within 40 days
of this decision.

/s/
Alan G. Paez

Alan
G. Paez

Administrative
Law Judge

Distribution:

Anthony
M. Berry, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh
Avenue North, Suite 420, Nashville, TN 37219

Tyler
H. Fields, Esq., Excel Mining, LLC, 1146 Monarch Street, Lexington, KY 40513

/pjv

[1] Section
75.370(a)(1) provides:

The operator
shall develop and follow a ventilation plan approved by the district manager. The
plan shall be designed to control methane and respirable dust and shall be
suitable to the conditions and mining system at the mine. The ventilation plan
shall consist of two parts, the plan content as prescribed in [section] 75.371
and the ventilation map with information as prescribed in [section] 75.372. Only
that portion of the map which contains information required under [section]
75.371 will be subject to approval by the district manager.

[2] The S&S
terminology is taken from section 104(d)(1) of the Mine Act, 30 U.S.C.

§ 814(d)(1), which distinguishes as more serious any violation that “could
significantly and substantially contribute to the cause and effect of a . . .
mine safety or health hazard.”

[3] In this
decision, the hearing transcript, the Secretary’s exhibits, and Excel’s exhibits
are abbreviated as “Tr.,” “Ex. G–#,” and “Ex. R–#,” respectively. The parties
also admitted a list of stipulations in a joint exhibit, which is abbreviated
as “Ex. J–1.”

[4] Although MSHA
Inspector Hamilton characterized Excel’s negligence as “moderate” for Citation
No. 8258130 (Ex. G–1), the Secretary in his posthearing brief asks that I
modify the level of negligence to “high.” (Sec’y Br. at 10, 19.) The Federal
Rules of Civil Procedure allow the amendment of pleadings to conform to the
evidence if an issue is tried by the parties’ express or implied consent. See
Fed. R. Civ. P. 15(b)(2). Given the facts of this case and my conclusions
of law, see discussion infra Part V.A.2, I need not reach this
issue.

[5] Once a week,
Excel was required to monitor the amount of air that reached the back end of
the panel beyond the gob and the bleeder blocks. (Tr. 128:14–21.)

[6] These machines
and their respective crews were known as the 007 MMU and 008 MMU. (Tr.
31:16–18, 100:8–9, 101:23–24.) “MMU” stands for mechanized mining unit. (See
Tr. 31:18.) Each unit includes a continuous mining machine operator, two
shuttle car drives, and two miners setting timbers for roof control purposes. (Tr.
112:2–7.)

[7] The Secretary’s
regulations lower the concentration of respirable dust that may be found in the
mine’s atmosphere when the respirable dust contains more than five percent
quartz. See 30 C.F.R. §§ 70.100–.101. Although Excel was not subject to
this heightened quartz standard at the time of the inspection (Tr. 42:6–43:5;
Ex. G–5), it is uncontroverted that Respondent’s mine roof contained quartz.

[8] Although
Inspector Hamilton included methane ignition as a hazard in the “Condition or
Practice” narrative of Citation No. 8258130 (Ex. G–1), his testimony made only
passing reference to methane ignition. (Tr. 22:13–20, 82:17–83:1.) Instead, he
focused on dust exposure as the hazard with which he was most concerned. (See
Tr. 40:14–16, 78:23–79:2.) Similarly, the Secretary in his posthearing brief
claims this violation “contributes to the discrete safety hazard of allowing
the accumulation of respirable dust and harmful gases, such as methane” but
focuses solely on dust exposure in discussing the reasonable likelihood of
reasonably serious injury. (Sec’y Br. at 8–9.) Accordingly, my analysis will
focus on the dust exposure hazard.

[9] In Excel’s
posthearing brief, the operator notes that the dust Inspector Hamilton observed
“came from cutting in the mine floor, not the mine roof where quartz can be
found.” (Resp’t Br. at 11.) Thus, Respondent claims that “the continuous miner
was not cutting an area that generally exposes quartz, and any testimony that
they would eventually cut into quartz is purely speculative.” (Id.) Nevertheless,
it is uncontroverted that the sandstone roof at the Van Lear Mine contained
quartz, and Hamilton credibly testified that Respondent would eventually cut
into the roof as it continued to mine the pillars in Panel 6. Indeed, Excel did
not dispute that it intended to mine the top portion of the coal pillar that
abutted the sandstone roof. Thus, Excel would have cut into the mine’s sandstone
roof in the course of continued mining operations.

[10] Excel also
claims that the ventilation controls would have been removed after Respondent
completed retreat mining in Panel 6. (Resp’t Br. at 14.) Thus, Respondent
argues, “[t]here is no reason to assume that, upon completing advance mining in
a new panel, similarly faulty controls would be established in the next retreat
mining process.” (Id.; see also Resp’t Reply Br. at 6–7
(suggesting “[a]n analysis of continued normal mining operations should not
unequivocally assume the condition would exist in perpetuity.”) However, the
Commission has declined to assume or infer that the violative condition would
be abated in continued mining operations. See, e.g., McCoy Elkhorn
Coal Corp., 36 FMSHRC 1987, 1991 (Aug. 2014); Knox Creek Coal Corp.,
36 FMSHRC 1128, 1140–41 (May 2014); Gatliff Coal Co., Inc., 14 FMSHRC
1982, 1986 (Dec. 1992); U.S. Steel Mining Co., 6 FMSHRC at 1574.

[11] Respondent also
claims the record is “devoid of any indication as to why [the low air volume]
was likely to cause injury.” (Resp’t Br. at 20.) Respondent’s argument seems to
conflate the second and third elements of Mathies. The question before
me under Mathies’ third element is whether a methane accumulation hazard—rather
than the insufficient air—is reasonably likely to result in reasonably serious
injuries. See discussion supra Part IV.A. Nevertheless, I note
that ventilation plans set forth minimum requirements and that Excel
provided only 82% of the minimum required air on the section. (See Resp’t
Br. at 20–21 & n.6.)

I recognize that
it might be possible to imagine a scenario where the air volume falls
short by such an incremental margin as to have a de minimis impact on the
S&S analysis. Yet, a nearly twenty percent shortfall of the minimum
requirement is no such minor misstep. The plan’s minimum air volume was
intended to sweep methane and harmful gases away from the working section and
through the gob. It also helped ensure methane and gases did not seep back onto
the section. Notwithstanding the concessions in Excel’s posthearing brief—and
to the extent that Respondent’s argument might be construed as an argument
regarding Mathies’ second element—I therefore determine that the violation
of the ventilation plan contributed to a discrete safety hazard.

[12] Respondent also
claims in its posthearing brief that the two shuttle car operators would have
never been in close proximity to the continuous miner at the same time because
they took turns loading coal at the miner and dumping it at the belt feeder. (Resp’t
Br. at 23.) Yet Excel provides no support in the record for that claim. I note
that two company representatives—Curtis Webb and Mike Hurley—travelled with
Inspectors Stiltner and Hamilton on January 24. Perhaps Webb and Hurley would
have provided evidence to support this position, but neither appeared at the
hearing. Instead, Excel only presented testimony from Mine Engineer Arrington,
who was not on Panel 6 that day and provided no evidence regarding the number
of miners that would be affected.