Secretary of Labor v. TRC Mining Corp.

Read the official release (fmshrc.gov)

Plain-English summary

The case addressed combustible accumulations along a belt, an inadequate belt examination, inoperable mantrip sanders, and accumulations on a working section. Judge Michael E. Zielinski affirmed all four violations but modified several enforcement findings. The belt accumulations remained S&S and unwarrantable; the examination violation remained S&S and high negligence but was not unwarrantable; the sander violation remained S&S but was moderate rather than high negligence; and the working-section accumulations were high negligence but non-S&S because the identified ignition sources were not reasonably likely to ignite them. The judge reduced the number of affected miners to one for each citation and assessed $14,500 total for the contested violations instead of the proposed $41,688.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.362(b), 75.400, and 75.1403
• Outcome: All four contested violations were affirmed as modified, one order was changed to a section 104(a) citation, and penalties totaled $14,500.
• Key point: Extensive accumulations and defective examinations can remain serious even when the Secretary overstates the number of miners exposed or the likelihood of an explosion; each S&S, negligence, and unwarrantable-failure element must match the proven hazard.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 Pennsylvania Avenue, NW, Suite 520N

Washington, DC 20004-1710

March 7, 2013

SECRETARY OF LABOR,   

MINE SAFETY AND HEALTH    

ADMINISTRATION (MSHA),  

Petitioner 

TRC MINING CORP., 

Respondent

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CIVIL PENALTY PROCEEDINGS

Docket No. KENT 2011-332

A.C. No. 15-17720-238479 

Docket No. KENT 2011-443

A.C. No. 15-17720-241377

Mine: Mine #2

DECISION

Appearances:  Alisha I. Wyatt-Bullman, U.S. Department of Labor, Nashville,
Tennessee, on behalf of the Secretary of Labor

David Baird, Baird & Baird, Pikeville, Kentucky, on behalf of TRC Mining Corp.

Before:            Judge Zielinski 

These cases are before me upon Petitions for Assessment of Penalty filed by the
Secretary of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d). The petitions allege that TRC Mining Corporation is liable for a total
of thirty violations of the Secretary’s Safety and Health Standards for Underground Coal Mines,

and propose the imposition of penalties in the amount of $71,825.00. Twenty six of the
violations were settled, and a decision approving the partial settlement was entered on March 4, 2013. Remaining at issue are four violations for which the Secretary has proposed
penalties in the amount of $41,688.00. A hearing was held in Pikeville, Kentucky, and both
parties filed post-hearing briefs. For the reasons that follow, I find that TRC committed the
violations and impose civil penalties in the total amount of $14,500.00, for the contested
violations.

Findings of Fact - Conclusions of Law

At all times relevant to this proceeding, TRC operated Mine No. 2, located in Letcher
County, Kentucky. TRC Mine Number 2 was a conventional coal mine, operating in a relatively
low seam. Mining height along the belt line was approximately four feet. Tr. 19, 98, 144.

During the time that the violations were issued, the mine used a cut and blast mining process.
Miners would drill holes into the coal face, which would then be undercut with a cutting
machine. Explosives would be placed into the holes, and inert clay packing would be tamped in
to contain the explosion. After blasting, scoops would load the coal onto the belt for transport
out of the mine. Tr. 68.

The violations at issue were served by MSHA inspectors from September 21through
November 1, 2010, and the penalties assessed were timely contested by Respondent.

Docket No. KENT 2011-332

Citation No. 8249770

Citation No. 8249770 was issued by MSHA inspector James Adams

at 1:30 p.m. on
September 21, 2010, pursuant to section 104(d)(1) of the Mine Act. It alleges a violation of 30
C.F.R. § 75.400 which states, “[c]oal dust, including float coal dust deposited on rock-dusted
surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on diesel-powered and electric equipment therein.” The
violation was described in the “Condition and Practice” section of the citation as follows:

The operator has allowed combustible materials in the form of loose coal, coal
dust, and coal float dust to accumulate in the Co. #1 conveyor belt entry from
approximately three break inby S.S. 1561. The accumulations range in depth
from a thin layer to approximately three inches, being black in color, very dry and
easily suspended into the atmosphere. A battery charging station with multiple
energized electrical components (480 VAC) is located in the adjacent entry.

Nine Miners were working in the 003 section.

This standard has been cited 57 times at this mine in the last two years.

This violation is an unwarrantable failure of the belt examiner (Carvin Collins) to
comply with a mandatory standard.

Ex. G-1. 

Adams determined that the violation was reasonably likely to cause injury that could be
expected to result in lost workdays or restricted duty, that it was significant and substantial, that
nine people were affected, that the operator’s negligence was high, and that the violation was the
result of TRC’s unwarrantable failure to comply with the standard. A civil penalty in the amount
of $16,867.00 was assessed for the violation.

The Violation

Adams sole reason for being at the mine on September 21, 2010, was to terminate a rock
dust citation. He informed the belt foreman, Carvin Collins, that he only wanted to see the area
for which the citation had been issued. Tr. 23-24. The first shift had been working for
approximately six hours when Adams arrived at the mine. Tr. 22-23. When Collins took Adams
to the area of the #5 conveyor belt, Adams observed dry, black float coal dust, and coal dust.
Tr. 24-25. The accumulations of coal dust were approximately 1/4-3/8 of an inch thick, and
loose coal accumulations were about 2-3 inches deep. Tr. 25. The conditions in that area of the
mine were dry, and the accumulations were spread across about six breaks, approximately 500
feet. Tr. 20, 25, 33; Ex. G-5. No clean-up crew was present in the area and there was no
evidence that cleaning had occurred. Tr. 39.

Adams believed that the accumulations could have led to an explosion because multiple
ignition sources were present. Tr. 26-27. Only one potential ignition source was noted in the
body of the citation, a battery charging station in an adjacent entry approximately 80 feet from
the belt entry. Tr. 50, 52. However, he recorded in his notes, and testified, that two other
potential ignition sources were present, the head drive for the #6 belt, which had several
electrical components, and a bottom belt roller turning in dry coal. Tr. 26-27; Ex. G-5.

While Adams could not relate the regulatory definition of coal dust and coal float dust,
he had many years of experience in coal mines and carried a copy of the regulations with him to
inspections. Tr. 78. The federal regulations define coal dust and coal float dust based on its
ability to pass through different sized sieves.

Tr. 46-47. Adams had been issued sieves as an
inspector but he did not use them, and he could not specify the size of the dust particles he
observed. Tr. 47-48. One of the tests that Adams uses to determine if a substance is float coal
dust is to blow on it to see if it becomes suspended. When he blew on the dust in TRC’s mine, it
became suspended. Tr. 79.

Respondent allowed coal dust, and loose coal to accumulate up to measurements of 3/8
of an inch and 3 inches respectively, facts that are essentially not disputed by TRC. There was
no clean-up crew present during Adams’ inspection and there was no evidence that any kind of
clean-up had previously taken place. In addition, there were nine miners working in the 003
section. I find that Respondent violated the standard.

Significant & Substantial

The Commission reviewed and reaffirmed the familiar Mathies

framework for
determining whether a violation is S&S in Cumberland Coal Res., 33 FMSHRC 2357, 2363-65
(Oct. 2011):

The S&S terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers to more serious violations. A violation is S&S if,
based on the particular facts surrounding the violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness of a
reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822,
825 (Apr. 1981). In Mathies, 6 FMSHRC 1, the Commission further explained:

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.

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d
133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103
(5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable
likelihood of injury should be made assuming continued normal mining
operations. See U.S. Steel Mining Co., 6 FMSHRC 1824, 1836 (Aug. 1984). The
Commission has emphasized that it is the contribution of a violation to the cause
and effect of a hazard that must be significant and substantial. U.S. Steel Mining
Co., 6 FMSHRC 1824, 1836 (Aug. 1984).

. . . .

. . . .

The Commission recently discussed the third element of the Mathies test
in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81
(Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine
map). The Commission held that the “test under the third element is whether
there is a reasonable likelihood that the hazard contributed to by the violation, i.e.,
[in that case] the danger of breakthrough and resulting inundation, will cause
injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove
a reasonable likelihood that the violation itself will cause injury.” Id. The
Commission concluded that the Secretary had presented sufficient evidence that
miners who broke through into a flooded adjacent mine would face numerous
dangers of injury. Id. The Commission also emphasized the well-established
precedent that “the absence of an injury-producing event when a cited practice
has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal
Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18
FMSHRC 853, 857 (June 1996)).

The fact of the violation has been established. It contributed to a discrete safety
hazard, the possibility of combustion, a fire or explosion, of the accumulations around
the #5 belt. Whether the violation was S&S turns on whether the hazard was reasonably
likely to result in an injury causing event and whether it was reasonably likely that an
injury would be of a reasonably serious nature.

When evaluating the reasonable likelihood of a fire, ignition, or explosion,
the Commission has examined whether a ‘confluence of factors’ was present
based on the particular facts surrounding the violation. Texasgulf, Inc., 10
FMSHRC 498, 501 (April 1988). Some of the factors include the extent of the
accumulations, possible ignition sources, the presence of methane, and the type of
equipment in the area. Utah Power & Light Co., 12 FMSHRC 965, 970-71 (May
1990) (‘UP&L’); Texasgulf, 10 FMSHRC at 500-03.

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997).

Here, the accumulations were reasonably extensive. While they were not massive in
volume, they consisted of float coal dust and loose coal that extended for several hundred feet
along the belt line. There is no evidence of the presence of methane, either in the belt entry, or
elsewhere in the mine such that it could have affected the accumulations, most notably by
generating an explosion that could have put the float coal dust into suspension and propagated a
more extensive and violent explosion.

However, there was at least one potential ignition source
that could have started a fire in the accumulations.

Adams determined that an injury was reasonably likely to occur because there were
multiple ignition sources present near or within the accumulations, and the coal dust was very
volatile and combustible. Tr. 33. He identified the ignition sources as a battery charging station,
the head drive for the #6 belt, and a belt roller turning in dry coal.

The battery charging station was in an adjacent entry, 80 feet away from the belt entry.
While the accumulations extended into the connecting crosscut, they did not reach the charging
station. Tr. 27, 50. There was no coal dust on top of the charging station, and Adams did not
look into it to see if there were accumulations inside the charger. Tr. 57, 71-72. A scoop was
parked next to the station, and its battery was being charged. Adams posited that if a battery
arced, it could cause an ignition. However, there were no accumulations in the area, and Adams
did not see any evidence of arcing. Tr. 53-54. The battery charging station was on a ground
fault system and would have been de-energized if there was a fault. Tr. 57, 233. Robert Caudill,
the section foreman, testified that the area around the charger had been sprayed with fireproof
material, there was a fire extinguisher on the charger, and he did not think there was any
condition present that would have caused arcing. Tr. 233-34. I find that the battery charging
station was not an ignition source for the accumulations.

Nor did the head drive for the #6 belt, which was three to four breaks away, present an
ignition source. It had multiple electrical components that Adams described as potential ignition
sources, such as a belt starter box and a belt feed-through box. Tr. 26-28. However, the
accumulations did not extend to the head drive, and Adams did not go all the way to the head
drive to observe the conditions at that location. Tr. 27. Adams theory, like that for the charging
station, was that the head drive could ignite some other combustible material, resulting in a chain
reaction that could involve the cited accumulations.

Tr. 71-72.

There was, however, a bottom belt roller turning in the accumulations. Adams did not
touch the roller or the coal it was turning in, because the belt was running. Tr. 56. He was
unable to state whether heat was being generated by the roller, and did not have a heat-sensing
device. Tr. 56. Nevertheless, the roller spinning in the accumulations, particularly the dry float
coal dust, could produce an ignition, especially under continued mining conditions.

A fire burning in the accumulations would produce flames, smoke, and noxious gases.
While the products of combustion would most likely have been transported out of the mine by
the air flow in the belt entry, miners called upon to fight the fire could suffer smoke inhalation or
other injuries of a reasonably serious nature. There was a fire extinguisher nearby, and the belt
was equipped with a carbon monoxide sensing system that would have provided a warning if
there was a fire and would have shut the belt down. Tr. 60-61. However, such safety features do
not establish that a violation is not S&S. See Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133
(7th Cir. 1995); Amax Coal Co., 19 FMSHRC 846, 849 (May 1997).

Adams believed an injury would result in lost workdays or restricted duty, and recorded
his assessment in his notes and on the citation. Ex. G-1, G-5 at 8. However, at the hearing he
testified that he could or should have marked it as fatal because in the event of an explosion
there was a “good possibility” that the nine miners working at the face would have been affected.
Tr. 36. His conclusion was based on his awareness of the Upper Big Branch mine disaster,
where an explosion of coal dust suspended by a methane explosion resulted in fatalities to
miners two miles from the initial incident.

Tr. 34. Adams posited that an explosion could
suspend the float coal dust and affect the nine miners working in the 003 section. Tr. 34-36.

Adams initial assessment of possible injuries was more accurate. There is no evidence of
the presence of methane in TRC’s mine, and Adams was not aware of any ignitions or fires at
the mine. Tr. 81. Consequently, there was no realistic possibility of an explosion that could
have suspended the dust, or affected the miners at the face. Nor was the extent of the dust
remotely comparable to the conditions that led to the Upper Big Branch disaster.

I find that an ignition of the accumulations could have caused a fire and that a lost work
days injury was reasonably likely to result to one miner. The violation was S&S.

Unwarrantable Failure- Negligence

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated
the law applicable to determining whether a violation is the result of an unwarrantable failure:

The unwarrantable failure terminology is taken from section 104(d) of the
Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in
connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec.
1987), the Commission determined that unwarrantable failure is aggravated
conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable
failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991)
(“R&P”); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir.
1995)] (approving Commission's unwarrantable failure test).

Whether conduct is “aggravated” in the context of an unwarrantable
failure is determined by looking at all the facts and circumstances of each case to
see if any aggravating factors exist, such as the length of time that the violation
has existed, the extent of the violative condition, whether the operator has been
placed on notice that greater efforts are necessary for compliance, the operator’s
efforts in abating the violative condition, whether the violation is obvious or
poses a high degree of danger, and the operator’s knowledge of the existence of
the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000)
[need to check on the appeal that was docketed in the 4th Cir on 2/21,2001]. . . ;
Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other
grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30,
34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994);
Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines,
Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10
FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of
each case must be examined to determine if an actor’s conduct is aggravated, or
whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. Because
supervisors are held to a high standard of care, another important factor
supporting an unwarrantable failure determination is the involvement of a
supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar.
1998). 

The Secretary argues that the violation was the result of TRC’s unwarrantable
failure because the condition was obvious and extensive, it existed for at least one to two
shifts, it posed a high degree of danger to miners, Respondent had been put on notice that
greater efforts were needed for compliance, no action was being taken to correct the
problem, and the belt in the area was running. Respondent argues that its conduct did not
rise to the level of unwarrantable failure because it was making substantial efforts to
comply with the accumulations standard.

Obviousness – Length of time

The accumulations existed in the belt entry for a distance of approximately 400
feet.

They were black in color, which immediately attracted Adams’ attention. Tr. 32-33. He concluded that they were obvious, and had existed for at least one shift, if not
two. Tr. 31. I find that the violative condition was obvious.

Adams concluded that the accumulations had existed for at least one shift, and
most likely longer. His determination was based upon the extensiveness and appearance
of the accumulations. As noted below, I have found that the accumulations existed
during the previous shift, such that they should have been observed during two required
examinations.

Operator’s knowledge of the violation

Based on the extent of the accumulation, it was Adams’ opinion that the
accumulation had been ongoing for one, if not two, shifts. Tr. 31. Because the area
should have been examined pre-shift and on-shift, there would have been at least two
opportunities for an examiner to have found the conditions. Tr. 31-32. Collins told
Adams that he had been in the area to conduct the preshift examination for the day shift.
Tr. 32-33. He should have observed the obvious accumulations, and, judging from his
reaction when questioned by Adams, he was aware of them. Tr. 33. I find that TRC had,
or should have had, knowledge of the violative condition.

Operator placed on notice that greater efforts at compliance were necessary

Violations of the accumulations standard had been cited 57 times in the last two
years at the mine. In June 2010, Adams discussed with management officials of TRC its
numerous section 75.400 violations and put Respondent on notice that a higher degree of
enforcement for such violations would be taken in the future. Tr. 68-69. TRC had been
put on notice that greater efforts were needed to comply with the accumulations standard.

Extent of the violation

The extensiveness factor involves consideration of the scope or magnitude of a
violation, not an additional consideration of dangerousness or obviousness. Eastern
Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010). The accumulation of coal
dust was approximately 1/4-3/8 of an inch thick, and loose coal accumulations were
about 2-3 inches deep. Tr. 25. They were spread across six breaks, approximately 400
feet. The violation was moderately extensive.

Degree of danger

The violation did not present a high degree of danger to miners. Adams’
explosion scenario, resulting in fatalities to the entire mining crew, was not reasonable.
The single potential ignition source was reasonably likely to result in a fire, with a lost
work days injury reasonably likely to occur to one miner.

Operator’s efforts in abating the violation

The focus of the abatement effort factor is on compliance efforts made prior to
the issuance of the violation, generally a measure of an operator’s response to violative
conditions that were known or should have been known to it. While the parties stipulated
that TRC exhibited good faith in timely abating the violations, post-citation efforts are
not relevant to the determination of whether the operator engaged in aggravated conduct
in allowing a violative condition to occur. Enlow Fork, 19FMSHRC at 17. As noted
above, TRC, through its agent Collins, had knowledge of the violative condition. It had
taken no steps to address it.

TRC argues that the Secretary’s violations history report, typically referred to as
an

“R-17," shows that it had made substantial efforts to comply with section 75.400 after
Adams’ June 2010 warning, noting that it shows 19 accumulations violations from
January through June, but none for the balance of the report, i.e., from July 1 through
September 20, 2010. It also notes that Robert Caudill, its section foreman, testified that
TRC does its best to clean up in the working section and along the belts. Tr. 237.

Caudill’s testimony did not include a description of any effort to place greater
emphasis on clean-up efforts as a result of Adams’ warning. The R-17 also can present a
misleading picture, because it includes only citations or orders that became final during
the subject period, which in this case ended on September 20, 2010. Violations that were
issued in the period of claimed enhanced effort, from zero to ninety days before the
report’s closing date, would almost certainly not have become final within that time, even
if TRC had not contested any assessed penalties. Consequently, the R-17 report is a most
unreliable source to prove whether violations were issued less than three months before
its closure date. TRC’s attempt to demonstrate pre-citation abatement efforts is
unavailing.

The most telling evidence of TRC’s lack of abatement efforts is the fact that,
despite being on notice that greater compliance efforts were necessary, and direct
knowledge of the violative condition, it took no steps to address the accumulations.

Conclusion

TRC had been put on notice that greater efforts were necessary to comply with
the accumulations standard. It had knowledge of the violative conditions, prior to the
inspection, and took no steps to abate them. It failed in its attempt to demonstrate
abatement efforts in response to warnings from Adams. The violative condition was
obvious, and had existed for nearly two shifts. While the violation was not particularly
extensive and did not present a high degree of danger to miners, I find that it was the
result of TRC’s unwarrantable failure to comply with the standard.

Order No. 8249774

Order No. 8249774 was issued by Adams at 4:00 p.m. on September 21, 2010,
pursuant to section 104(d)(1) of the Mine Act. It alleges a violation of 30 C.F.R. §
75.362(b) which states, “[d]uring each shift that coal is produced, a certified person shall
examine for hazardous conditions along each belt conveyor haulageway where a belt
conveyor is operated. This examination may be conducted at the same time as the
preshift examination of belt conveyors and belt conveyor haulageways, if the
examination is conducted within 3 hours before the oncoming shift.” The violation was
described in the “Condition and Practice” section of the order as follows:

The operator failed to conduct and record an adequate examination of hazards
found along the Co. #5 and #1 conveyor belts. Reference citation #8249770,

8249771, #8249772, and #8249773.

Due to the fact that the belt examiner was in this area and the obviousness of the
hazards cited, this constitutes more than ordinary neglect by the operator. This is
an unwarrantable failure of the belt examiner (Carvin Collins) to comply with a
mandatory standard.

These hazards are obvious to the most casual observer.

Ex. G-2.

Adams determined that the violation was reasonably likely to cause injury that could be
expected to result in lost workdays or restricted duty, that it was significant and substantial, that
nine persons were affected,

and that the operator’s negligence was high. Adams issued the
order pursuant to section 104(d) because he determined that the operator’s negligence rose to the
level of unwarrantable failure. A civil penalty in the amount of $6,115.00 was assessed for the
violation.

The Violation

When Adams returned to the surface of the mine after issuing Citation No. 8249770, he
checked the belt exam book and found that no hazards had been recorded for the number five
and number one conveyor belts from September 15 to September 21, 2010. He believed that the
conditions that were the subjects of the referenced citations should have been found by the
examiner and noted in the examination book. Tr. 41. Collins had acknowledged doing the
examination at the start of the day shift, which was both a preshift and onshift examination, and
should have encompassed all areas of the belt, i.e., the locations where the referenced citations
had been issued. Tr. 74-76.

Section 75.362(b) is part of the preshift and onshift examination requirements, and
specifically applies to entries where belt conveyors are operated. While it addresses onshift
examinations, it provides that the onshift examination can be conducted at the same time as the
preshift examination, if it is done during the time that the preshift examination must be done, i.e.,
within three hours before the oncoming shift. The Commission has held that the preshift
standard requires a preshift examiner to find and record a hazardous condition in a preshift
examination book. See RAG Cumberland Res., 26 FMSHRC 639, 651, 653 (Aug. 2004); Enlow
Fork, 19 FMSHRC at 14. Section 75.362(b) imposes a virtually identical requirement.

The accumulations that were the subject of Citation No. 8249770, constituted a
hazardous condition, and the violation was found to be significant and substantial, i.e., the
hazard contributed to by the violation was reasonably likely to result in a reasonably serious
injury. Two of the three other citations referenced in the order had been determined to be
significant and substantial. Ex. G-5. Hazards contributed to by the accumulations, and the other
violations, should have been identified and recorded in the examination book.

I find that the standard was violated.

Significant & Substantial

The failure to record the hazards in the examination book had the effect of perpetuating
them, because oncoming foremen and higher level managers were not alerted to their presence
and would not have taken action to address them. Consequently, miners working on oncoming
shifts were exposed to the hazards. Tr. 42. Adams’ testimony regarding the nature of injuries
likely to be suffered and the number of persons affected paralleled that of the accumulations
violation. He believed that an explosion propagated by the float coal dust could have resulted in
fatal injuries to the nine-member crew working at the face. However, he recorded in the order
that the injury reasonably expected would have resulted in lost work days. For the reasons
discussed with respect to the accumulations violation, I find that the hazard contributed to by this
violation, which was a perpetuation of the hazard contributed to by the accumulations violation,
combined with the hazards contributed to by the other violations referenced in the order, was
reasonably likely to result in an injury resulting in lost work days to one person.

I find that the violation was S&S.

Unwarrantable Failure - Negligence

Adams determined that TRC’s negligence was high because the accumulation conditions
were obvious, Collins had done an examination in the area and should have observed them, and
the hazard was not recorded in the examination book. Tr. 44. Adams also believed that the other
violations referenced in the order had existed when the onshift/preshift examination was
conducted and should have been observed and recorded in the book. Tr. 74-76; Ex. G-5. He
found no mitigating factors. Tr. 45.

As presented at the hearing, this violation closely parallels the accumulations violation,
and there is a tendency to follow the reasoning of that violation as to the special findings.
However, the examination violation is separate and distinct from the accumulations violation,
which affects the unwarrantable failure analysis. While TRC had been put on notice of a need
for greater efforts to comply with the accumulations standard, there is no such evidence as to the
examination standard. Collins’ knew that he had not reported the accumulations violation
following his examination, and made no effort to correct that omission prior to its being cited as
a violation. However, those considerations are the essence of the examination violation itself, as
is the fact that the failure to record the conditions was obvious. The violation had not existed for
an appreciable length of time. As noted above, the accumulation violation was not particularly
extensive and did not present a high degree of danger to miners. The potential hazards
associated with the other violations, could justify finding this violation more extensive.
However, aside from Adams’ notes of his inspection, and some brief testimony, there is little
evidence upon which to base such a finding. In any event, the Secretary’s case on this issue was
largely premised upon the failure to record the accumulations violation, and finding the
examination violation slightly more extensive would not alter the unwarrantable analysis.

Considering all of the factors, many of which are difficult to apply due to the nature of
the violation, I find that it was the not result of TRC’s unwarrantable failure to comply with the
standard. Rather, Collins failure to record the accumulations hazard in the examination book
was a serious violation, that rose to the level of high negligence. As an examiner, he was TRC’s
agent, and his negligence is attributable to TRC.

Docket No. KENT 2011-443

Citation No. 8250750

Citation No. 8250750 was issued by MSHA inspector David Hardin

at 10:30 a.m. on
November 1, 2010, pursuant to section 104(a) of the Mine Act. It alleges a violation of
30 C.F.R. § 75.1403 which states, “[o]ther safeguards adequate, in the judgment of an authorized
representative of the Secretary, to minimize hazards with respect to transportation of men and
materials shall be provided.”

The violation was described in the “Condition and Practice”
section of the citation as follows:

The operator has failed to maintain the sanding devices provided on the battery
rail runner type mantrip in good working condition. When checked, the sanding
devices failed to work and took sixty minutes to repair.

Standard 75.1403 was cited 20 times in two years at mine 1517720 (20 to the
operator, 0 to a contractor).

Ex. G-3.

Hardin determined that the violation was reasonably likely to cause injury that could be
expected to result in lost workdays or restricted duty, that it was significant and substantial, that
ten people were affected, and that the operator’s negligence was high. A civil penalty in the
amount of $12,248.00 was assessed for the violation.

The Violation

Hardin was at TRC’s Mine No. 2 on November 1, 2010, to participate in a “saturation”
inspection, wherein a group of inspectors simultaneously inspect most or all areas of a mine.
Tr. 90. He was assigned to inspect the conveyor belts. Tr. 91. Hardin, and some of his
colleagues assigned to underground areas of the mine, decided to take a track-mounted mantrip
into the mine. Tr. 92. The mantrip could transport eight passengers quickly from the portal to
the end of the 4,400-foot rail line. Absent a mantrip, or a wheeled “buggy” ride, one would have
to either “duck walk” or crawl that distance, because mine height along the belt line was
approximately four feet. Tr. 97. Aside from a turn at the portal, the rail line was straight, but
hilly, with slopes both up and down that Hardin described as “steep.” Tr. 94, 98-99. The mine
was damp along the track, and water collected in dips and low spots, mostly along the #1 belt
near the portal. Tr. 94, 98-99. Anthony Lucas, an MSHA inspector, rode the entire length of the
track on a mantrip and described the track as wet, hilly, and not very well maintained. Tr. 148.
He could feel the track swaying slightly as he rode. Tr. 174.

The mine had two track-mounted maintrips, both of which were used to transport day-shift mining crews into the mine. Tr. 195. Mantrips are equipped with a service brake and a
parking brake. Because wet conditions on the rails can significantly reduce friction between the
steel surfaces, each mantrip was also equipped with four sanders, one for each wheel, to provide
added traction. A sander consists of a square receptacle that tapers down to a tip. A metal rod
extends down, through the receptacle into an orifice at the tip. When the rod is lifted out of the
orifice by the operator’s pressing down on a handle, sand is allowed to run out of the receptacle,
through a rubber “boot” attached to the bottom of the sander, and is deposited on the metal rail in
front of the mantrip’s wheel. The sand increases the friction between the steel wheel and the
rail, thereby greatly enhancing the mantrip’s ability to stop and to climb grades in wet
conditions.

There is no mandatory safety standard or regulation that requires that mantrips be
equipped with sanders. However, pursuant to section 314(b) of the Act, and the Secretary’s
regulations, authorized representatives of the Secretary may issue safeguards to address hazards
related to the transportation of men and materials at a particular mine. 30 C.F.R. § 75.1403. The
mine operator is obligated to comply with a safeguard, violations of which may subject it to
citations or orders issued pursuant to section 104 of the Act. Cyprus Cumberland Res. Corp, 19
FMSHRC 1781 (Nov. 1997). Safeguard No. 4009405 had been issued at the mine on July 14,
1997. Tr. 116. It requires that track-mounted mantrips be equipped with operable sanders.

Hardin was familiar with the safeguard, a copy of which was retained in MSHA’s mine
file. Tr. 115. Respondent argues that the Secretary did not introduce a copy of the safeguard into
evidence, and that it “may have been issued due to circumstances specific to active areas in the
mine at that time which are now sealed.” Rsp. Br. at 9. Respondent cited no authority for what
appears to be an argument that the safeguard was no longer validly based upon specific
conditions at the mine. The Secretary has the burden of establishing the validity of a safeguard,
which includes proof of specific mine conditions creating a transportation hazard addressed by
the safeguard. Southern Ohio Coal Co., 14 FMSHRC 1, 13-14 (Jan. 1992). The conditions
described by Hardin and others, a rail line running through hilly wet conditions with steep
slopes, provided ample evidence of specific conditions establishing the continued validity of the
safeguard. Respondent offered no evidence that the safeguard was not, or was no longer, based
upon specific conditions in its mine.

Pursuant to the inspectors’ request, a mantrip was brought out of the mine. Hardin
inspected the mantrip before riding it into the mine. The parking and service brakes were in
good working order. However, all four sanders were inoperable. Tr. 94. When the levers
controlling the sanders were activated, retracting the rods, no sand came out. Hardin’s initial
impression was that the sanders had simply run out of sand. However, there was sand in the
receptacles and it was determined that they were clogged with wet sand and mud. Tr. 100, 136.
When the mantrip travels through wet conditions, water and/or mud can get into the rubber boots
on the sander, causing sand to clump, blocking it from falling onto the track. Tr. 198-99. Simple
clogs can be dislodged fairly easily, e.g., by pushing something like a welding rod down through
the reservoir and forcing the wet sand out, or by using a rod to dislodge wet sand from the boot.
Tr. 103-04. More severe clogs, where the sand in the receptacle has become wet, require removal
of the sand, drying of the receptacle, and refilling it with dry sand. Tr. 200.

The inoperable sanders were severely clogged, necessitating removal of the wet sand,
drying the receptacle, and refilling it with dry sand. Consequently, Hardin issued the subject
citation, charging TRC with violating the safeguard. It took about an hour to make the sanders
functional, at which time the citation was terminated.

Clayton Ramey, a superintendent and one of the owners of the mine, testified that only
one of the sanders was inoperable, and that Carver Collins, the foreman who brought the mantrip
to the surface, determined that the sander was not functioning properly and took the mantrip out
of service. Tr. 204-05. Ramey stated that he was present when the sanders were tested, and that
he and two other employees worked to repair the sander. Tr. 206, 217. However, Ramey also
complained that when the inspectors arrived he had to sit in the office, was not allowed to talk on
the phone, and that Collins came to the office and told him that the mantrip had been taken out
of service because of at least one inoperable sander. Tr. 216. Hardin testified that two men
repaired the sanders, neither of whom was Ramey. Tr. 130-31. I find that Ramey may have been
present when the sanders were tested after having been repaired, but that he was not present
when the sanders were initially checked, and that all four were inoperable when checked by
Hardin. I find that the standard was violated.

Significant & Substantial

The fact of the violation has been established. It contributed to a discrete hazard, a
limited ability to slow or stop the mantrip in wet conditions increasing the potential for a
collision with a miner or a derailment. An injury resulting from such an event would most likely
be reasonably serious. Whether the violation was S&S turns on whether the hazard was
reasonably likely to result in an injury causing event.

Hardin believed that the inability to effectively slow or stop the mantrip because of the
inoperable sanders made it reasonably likely that the mantrip would strike a miner working
along the belts, or that the mantrip would derail and strike a rib or the belt.

Tr. 105. No seat-belts were provided on the man trip, increasing the possibility of injury in the event of a
derailment. Tr. 106. Hardin was aware of accidents occurring because of faulty sanders,
including an incident where a mantrip could not slow for a curve and crashed into a coal rib,
sending several men to the hospital. Tr. 103.

The track extended approximately 4,400 feet into the mine. While the overall elevation
change over that distance was only 35 feet, it was “hilly” or “rolly” and had significant dips with
uphill and downhill grades. Tr. 146, 208-09. It was also wet, and water and mud tended to
collect in the dips. From just inside the portal, the track ran straight, right alongside the belts.
Tr. 105-06, 147. Hardin had checked TRC’s belt book, which showed that men were working on
the belts that day. Tr. 106.

I find that the probability of a derailment was negligible, because the track was straight,
except for one S-curve at the portal. The curve would have been encountered as a mantrip first
entered the mine, prior to traveling through the wet hilly areas of the track. A mantrip exiting the
mine would, presumably, be traveling on a generally rising, or flat, slope and would be unlikely
to be traveling at a speed that would threaten its ability to remain on the track.

However, miners working along the belts would have been exposed to the hazard, as the
mantrip traveled those hilly and wet areas. Hardin believed that the sanders had been inoperable
for at least one shift, and had been inoperable when the mantrip was used to transport miners on
the day shift into the mine around 6:30 that morning, and when the mantrip was brought out of
the mine to transport the inspectors. Tr. 101, 106. Hardin’s determination was based solely on
the amount of time it took to unclog the sanders, i.e., the severity of the clogs. Tr. 101, 106, 133.

Clyde Gibson, who was responsible for maintaining the mantrips and sanders, worked an
extended second shift, from 6:00 p.m. to 6:00 a.m. When the mantrips transported the second
shift crews out of the mine at 11:30 p.m., he examined the mantrips, including the sanders and
made sure they were operational before moving the mantrips into the covered rail shed. Tr. 191,

200. He was sure that the sanders were functional when the mantrip was placed in the shed on
     Friday night, and would have remained functional when it was used that Monday morning,
     November 1, to transport the first shift miners into the mine. Tr. 192-93. Ramey testified that it
     was TRC’s policy to check the sanders every time the mantrips came to the surface, and that the
     sanders would be made operable before the mantrips were taken back underground. Tr. 204, 207.

Gibson estimated that a more serious clog occurred approximately once per week, but,
that a mantrip might be used by the belt boss to check the belts and could make several trips per
day through water/mud which would increase the likelihood of a clog. Tr. 201-02. Hardin
conceded that a sander could become “simply clogged” on a single trip into or out of the mine.
Tr. 125.

While it is possible that the sanders had been inoperable before work began that day,
Hardin’s opinion, based solely on the amount of time it took to clean the sanders, is insufficient
to justify such a finding. Hardin apparently did not consider that the belt boss may have used the
mantrip after the crew had been taken in, and made additional trips through water and mud.
However, Hardin’s opinion that the four sanders did not get severely clogged solely during the
trip to the surface, strikes me as reasonable. I find that the operability of most of the sanders was
substantially impaired by the time the mantrip reached the end of the track when it was used to
transport miners at the beginning of the first shift, or shortly thereafter, i.e., approximately 7:00
a.m., and that they were inoperable during the trip out of the mine to get the inspectors at
approximately 10:00 a.m., and during any travel in the intervening period.

Considering the fact that there were miners assigned to work on the belts, and that the
hilly, wet track ran alongside the belts, I find that an injury causing event was reasonably likely
to occur, and that the violation was S&S.

Negligence

Hardin recorded TRC’s negligence as “moderate” in his handwritten notes made during
the inspection, and underlined the word. Ex. G-7. However, in typing the citation, he indicated
the negligence level was high. He explained that the “moderate” notation was a “typo” and that
his assessment of negligence was high “from the start.” Tr. 123. As reflected in his notes, his
assessment of high negligence was based upon the length of time it took to repair the sanders and
the obviousness of the condition. Ex. G-7. He believed that the condition should have been
discovered and remedied during a pre-operational check of the mantrip before it was used to
transport the first shift miners, or during a pre-operational check before it was brought out of the
mine.

Hardin had been told that all the section men took the same ride into the mine, and
concluded that the foreman rode on the mantrip along with the crew. Tr. 107, 124. He had
determined that the sanders had been inoperable prior to the crew being transported into the mine
that morning, and that their failure to discharge sand should have been obvious during a pre-operational check at that time, or before the mantrip was brought out, and he concluded that a
TRC agent knew or should have known that the sanders were clogged.

I have found, however, that the operability of the sanders was not significantly impaired
when the mantrip departed the surface at the beginning of the work day. It is also unclear
whether an agent of TRC’s would have been in a position to have observed a problem with the
sanders. While a foreman rode into the mine with the crew, he may not have ridden in that
mantrip, and there is no indication that that mantrip had any difficulty traversing the hilly track
on its way into the mine, on the way out to get the inspectors, or at any time when it may have
been used by the belt boss.

Hardin had determined that ten men were affected by the violation, because that was a
typical mining crew, and he had been told that the entire crew took the same ride into the mine.
However, the capacity of the cited mantrip was eight miners, plus an operator. The second
mantrip owned by TRC was at the end of the track when Hardin went into the mine, indicating
that both mantrips had been used to transport the foreman and crew for the first shift into the
mine. Tr. 124, 195. Consequently, the number of miners affected had to be lower than ten. Since
the possibility of a derailment was found to be remote, I find that one miner, a miner working
along the belt line, would have been affected by the violation.

I find that TRC’s negligence with respect to this violation was moderate.

Citation No. 8250709

Citation No. 8250709 was issued by MSHA inspector Anthony Lucas

at 12:50 p.m. on
November 1, 2010, pursuant to section 104(a) of the Mine Act. It alleges a violation of the
accumulations standard, 30 C.F.R. § 75.400. The violation was described in the “Condition and
Practice” section of the citation as follows:

Accumulations of combustible material in the form of loose coal, crushed coal
fines, coal dust, and float coal dust, black in color, have been allowed to
accumulate on the active 003 section beginning two cross cuts outby the section
power center and continuing inby the last open cross cut where coal is being
mined and transported. The accumulations range from thin to 4 inches in depth
and are black in color.

Ex. G-4.

Lucas determined that the violation was reasonably likely to cause injury that could be
expected to result in lost workdays or restricted duty, that it was significant and substantial, that
12 persons were affected, and that the operator’s negligence was moderate. A civil penalty in
the amount of $6,458.00 was assessed for this violation.

The Violation

Lucas participated in the November 1 saturation inspection. He and another inspector
were assigned to the 003 working section. They took the mantrip into the mine, and then
boarded a rubber tired vehicle to ride to the face. As he entered the working section, he noticed
accumulations of coal and black coal dust. Tr. 149. Lucas performed an imminent danger run in
the last open crosscut from entry #6 to entry #8, while his colleague traveled entries #1 through

5, and they met to discuss their findings. Tr. 149, 178-79.

There were accumulations of loose coal ranging from 1 to 3 or 4 inches in depth
throughout the section.

Tr. 158, 168. The area near the face of the mine was very dry and there
was no standing water or dampness. Tr. 154, 165. Lucas highlighted the area of the loose coal
accumulations on a map of the mine. Tr. 151-51; Ex. G-8. The area encompassed all eight
entries from the face to four crosscuts outby, approximately 300 by 400 feet. Lucas did not
travel all of the entries and crosscuts in the highlighted area. Tr. 178-79. He went to the “top”
of the entries, presumably in the last open crosscut, and looked into them while they were
illuminated with his cap light. He observed that dust was raised by scoops traveling over the
loose coal, which was transported outby by ventilation air currents. Tr. 155. Outby the feeder,
he observed a thin layer of float coal dust that extended another two crosscuts outby. Tr. 152-54.
He did not sample or test the dust to determine if it met the regulatory definition. However, he
had conducted rock dust surveys, and was confident from his experience that the dust was float
coal dust. Tr. 159, 167-70. Lucas was “shocked” that the mine had gotten that far behind on
cleaning. Tr. 183.

Robert Caudill,

the foreman in charge of the working section, explained the mining
process being used. Three holes were drilled into the upper part of the face, after which a cutting
machine would make a cut along the bottom of the seam. Explosives would be placed into the
holes, and clay “dummies” would be tamped into the holes to confine the blast. The area would
be cleared, and the explosives would be ignited with a battery-powered detonator. Four scoops
operated at the mine in 2010. They removed the loose coal from the blasted entry and
transported it to the belt feeder.

The drillers/blasters would move to the next entry and prepare
it for blasting. The entries were blasted, in order, from #1 to #4, and then from #8 to #5. While
mining continued on one side of the section, one or two scoops would return to the other side to
scrape up spillage from the loading process. One miner, a “shoveler,” cleaned up spillage that
the scoops could not get, and also applied rock dust to the ribs by hand. Tr. 230-32. When a
crosscut was completed across the section, rock dust would be a applied that evening with a
mechanical rock duster mounted on a scoop. Tr. 232. A crosscut was completed approximately
every two to five days. Tr. 245.

Caudill explained that the process of undercutting the coal left a series of steps in the
mine floor, four to five inches high. Tr. 229, 242-46. The rough surface produced considerable
spillage of coal from the scoops. Lucas agreed that some spillage would be expected because of
the mining process. Tr. 177. He confirmed that rock dust had been sparingly applied on the roof
and ribs, but that there was a “blanket” of float coal dust over the rock dust outby the feeder.
Tr. 158-59.

Caudill believed that the cited accumulations may have been cleaned up with the scoops,
and he did not recall having to clean five breaks back from the face. Tr. 235. However, the
citation was issued at 12:50 p.m., not long before the end of his shift at 2:00 p.m. He believed
that he left on time, may have taken Lucas out of the mine, and admittedly was not present for
the majority of the clean-up. Tr. 274.

I accept the description of the conditions related by Lucas. Although he did not observe
the entire highlighted area, he personally crawled through significant quantities of loose coal in
virtually all of the entries, and observed the inadequately applied rock dust inby the feeder. If
the scoop-mounted rock duster had actually been used as each crosscut was mined through from
entry #1 to entry #8, the conditions observed by Lucas would not have existed.

I find that there were accumulations present throughout the section, in violation of the
standard.

Significant & Substantial

The fact of the violation has been established. It contributed to a discrete safety hazard,
the possibility of combustion, a fire or explosion. Whether the violation was S&S turns on
whether the hazard was reasonably likely to result in an injury causing event and whether it was
reasonably likely that an injury would be of a reasonably serious nature.

Lucas testified that injuries were reasonably likely to occur because of the amount of
accumulations and the presence of three ignition sources, the blasting of coal, electrical
equipment in the area, and the battery and wires used to ignite the explosives. Tr. 161-62.
However, only the detonation of explosives was identified as an ignition source in his notes.
Tr. 173; Ex. G-6. The low voltage battery used to ignite the explosives, and the wires lying in
the accumulations, are permissible equipment and did not present a viable ignition source.
Tr. 175. Lucas did not check the battery, and had no reason to believe that it was defective. Tr. 175. He did not check any of the electrical equipment, and did not know if coal dust had
infiltrated it. Tr. 160, 175. He also confirmed that the tamping of dummies into an explosive
hole would confine the explosion to the hole, and that there would not be any flame released
unless there was methane present. Tr. 173-75. As noted previously, the mine was no longer on
spot inspections for liberating substantial quantities of methane, and Lucas found no methane in
the area. The blasting itself would have most likely created some quantity of suspended coal
particles and dust. Yet, it obviously did not pose a significant threat of a wider ignition. The
float coal dust was outby the large area where the loose coal was found, and was several breaks
away from the faces. Lucas was present while blasting was taking place, but did not relate that it
caused dust to be suspended or threatened an ignition.

Tr. 174.

I find that blasting was unlikely to ignite the loose coal accumulations in the entries, or
the float coal dust outby. Because none of the ignition sources identified by Lucas presented a
reasonable likelihood of an ignition of the accumulations, I find that the hazard contributed to
was unlikely to result in an injury causing event, and the violation was not S&S. The violation
was unlikely to result in a lost work days injury to one miner.

Negligence

Lucas marked the negligence level as moderate because of the period of time that the
accumulations were present. Tr. 164. He believed that the conditions had existed since the
second shift on the previous Thursday, and probably started on the first shift. Tr. 157-58.
Consequently, they should have been observed during five preshift and onshift examinations that
should have been conducted up to the time he cited them near the end of the first shift on
Monday. Id. Examiners would have had to crawl through the area and could not have
overlooked the loose coal. Given the circumstances, if Lucas was going to issue the same
citation at the time of the hearing, he would have marked the negligence as high. Tr. 164-65.

I find that the accumulations were obvious, had existed for at least two shifts, and should
have been noted and corrected by the examiners. Consequently, TRC had knowledge of the
violation, and its negligence was high.

The Appropriate Civil Penalties

As the Commission recently reiterated in Mize Granite Quarries, Inc., 34 FMSHRC
1760, 1763-64 (Aug. 2012):

Section 110(i) of the Mine Act grants the Commission the authority to assess
all civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs
that the Commission, in determining penalty amounts, shall consider:

the operator's history of previous violations, the appropriateness of
such penalty to the size of the business of the operator 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).

Under this clear statutory language, the Commission alone is responsible
for assessing final penalties. See Sellersburg Stone Co. v. FMSHRC, 736 F.2d at
1151-52 (“[N]either the ALJ nor the Commission is bound by the Secretary’s
proposed penalties . . . we find no basis upon which to conclude that [MSHA’s
Part 100 penalty regulations] also govern the Commission.”). While there is no
presumption of validity given to the Secretary’s proposed assessments, we have
repeatedly held that substantial deviations from the Secretary’s proposed
assessments must be adequately explained using the section 110(i) criteria. E.g.,
Sellersburg Stone, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge need
not make exhaustive findings but must provide an adequate explanation of how
the findings contributed to his or her penalty assessments. Cantera Green, 22
FMSHRC at 622. In addition to considering the statutory criteria, the judge must
also set forth a discernible path that allows the Commission to perform its review
function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006).

Good Faith - Operator Size - Ability to Continue in Business

The parties stipulated that TRC abated the violations timely and in good faith. Stipulated
Facts. TRC did not argue that the proposed penalties would affect its ability to remain in
business, and therefore, I find that they would not. The parties did not stipulate to the size of
TRC as an operator. However, forms reflecting calculations of penalty assessments, filed with
the petitions, indicate that TRC is a small to medium operator, and I so find. Overall, these
factors are slightly mitigating.

History of Violations

TRC’s history of violations is reflected in a report generated from MSHA’s database, the
“R-17.” Ex. G-9. The report lists violations issued at the No. 2 mine and reflects that 316
violations became final between September 2008 and September 2010. I accept the figures
reflected in the report as accurate. However, the overall violation history set forth in the exhibit
is deficient in that it provides no qualitative assessment, i.e., whether the number of violations is
high, moderate or low. See Cantera Green, 22 FMSHRC at 623-24.

Some qualitative violations’ history information can be found on the forms reflecting
calculations of the proposed assessments. The Secretary’s Part 100 regulations for regular
penalty assessments take into account two aspects of an operator’s violation history, the “total
number of violations and the number of repeat violations of the same citable provision of a
standard in a preceding 15-month period.” 30 C.F.R. § 100.3(c). Only violations that have
become final are used in the calculations. For total violation history, points used in the penalty
calculation are assigned on the basis of the number of violations per inspection day, ranging
from 0 points for 0 to 0.3 violations per day to 25 points for in excess of 2.1 violations per day.
The assessment forms for the four litigated violations reflect an assessment of 12 points for
overall violation history and 0 to 15 points for repeat violations.

I find that TRC’s overall history of violations, as relevant to these violations, was
moderate, and should be considered a neutral factor in the penalty assessment process.

Docket No. KENT 2011-332

Citation No. 8249770 is affirmed as an S&S and unwarrantable failure violation.
However, the number of miners affected was found to be one, rather than nine. A regularly
assessed civil penalty in the amount of $16,867.00 was proposed for this violation. Adjusting
the assessment to reflect the lower number of affected miners would have resulted in an
assessment in the range of $5,100.00 under the Secretary’s Part 100 regulations . Considering
the factors itemized in section 110(i), I impose a penalty of $6,000.00 for this violation.

Order No. 8249774 is affirmed as an S&S violation. However, while TRC’s negligence
was found to be high, the violation was not the result of TRC’s unwarrantable failure. In
addition, the number of miners affected was found to be one, rather than nine. A regularly
assessed civil penalty in the amount of $6,115.00 was proposed for this violation. Adjusting the
assessment to reflect the lower number of affected miners would have resulted in an assessment
in the range of $1,660.00 under the Secretary’s Part 100 regulations . Considering the factors
itemized in section 110(i), I impose a penalty of $2,000.00 for this violation.

Docket No. KENT 2011-443

Citation No. 8250750 is affirmed as an S&S violation. However, the violation was not
the result of TRC’s high negligence, rather, its negligence was moderate. In addition, the
number of miners affected was found to be one, rather than ten. A civil penalty in the amount of
$12,248.00 was proposed for this violation. Adjusting the assessment to reflect the lower level
of negligence and the lower number of affected miners would have resulted in an assessment in
the range of $1,000.00 under the Secretary’s Part 100 regulations . Considering the factors
itemized in section 110(i), I impose a penalty of $1,500.00 for this violation.

Citation No. 8250709 is affirmed as a violation. However, the violation was found to be
the result of TRC’s high, rather than moderate, negligence. In addition, the number of miners
affected was found to be one, rather than twelve, an injury was found to be unlikely and the
violation was not S&S. A civil penalty in the amount of $6,458.00 was proposed for this
violation. Adjusting the assessment to reflect the higher level of negligence, the lower number
of affected miners, and the lower likelihood of injury would have resulted in an assessment in
the range of $4,500.00 under the Secretary’s Part 100 regulations. Considering the factors
itemized in section 110(i), I impose a penalty of $5,000.00 for this violation.

ORDER

Citation Nos. 8249770, 8250750 and 8250709 are AFFIRMED, as modified. Order No.
8249774 is modified to a citation issued pursuant to section 104(a) of the Act, and is
AFFIRMED as modified.

Respondent, TRC Mining Corporation, is ordered to pay civil penalties in the amount of
$14,500.00. within 45 days of this order.

/s/ Michael E. Zielinski

Michael E. Zielinski

Senior Administrative Law Judge 

Distribution:

Alisha I. Wyatt-Bullman, U.S. Department of Labor, Office of the Solicitor, 618 Church Street,
Suite 230, Nashville, TN 37219

David Baird, Baird & Baird P.S.C., 162 Second St., P.O. Box 351, Pikeville, Kentucky 41502