Bledsoe Coal Corporation

Read the official release (fmshrc.gov)

Plain-English summary

MSHA placed Bledsoe Coal's Abner Branch Rider Mine under a pattern-of-violations designation after a follow-up inspection produced eighteen citations marked significant and substantial. The parties agreed that MSHA needed at least nine valid S&S citations to sustain the pattern action. Judge William B. Moran affirmed all eighteen violations, finding fifteen significant and substantial and three non-S&S. The citations involved roof control, combustible accumulations, belt maintenance and examinations, electrical protection, personal protective equipment, and related hazards. The judge upheld the pattern designation and assessed total penalties of $13,576.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.1720(a), 75.220(a)(1), 75.202(a), 75.400, 75.514, 75.517, 75.809, 75.1731(a), 75.1731(b), and 75.362(b)
• Outcome: All eighteen citations were affirmed, fifteen as S&S, sustaining the pattern designation and resulting in $13,576 in penalties.
• Key point: A pattern designation stands when the inspection produces the required number of proven S&S violations, regardless of whether every citation receives that designation.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 Pennsylvania Avenue N.W. Suite 520 N

Washington, D.C. 20004-1710

(202) 434-9933

October 2, 2012

BLEDSOE COAL CORPORATION, 

Contestant 

v.

HILDA L. SOLIS, Secretary,

of Labor, United States 

Department of Labor, 

Respondent

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CIVIL PENALTY PROCEEDING

DOCKET Numbers:

KENT 2011-835

A.C. No 15-19132-249627

KENT 2011-1162

A.C. No. 15-19132-252276-02

KENT 2012-34

A.C. No. 15-19132-266095

MINE: Abner Branch Rider

DECISION

Appearances:          Mary Beth Zamer, Esq., Mary Sue Taylor, Esq., U.S. Department of
Labor, Nashville, Tennessee for the Petitioner

Marco M. Rajkovich, Esq., John Williams, Esq., Williams, Kilpatrick  & True, PLLC, Lexington, Kentucky, for Respondent

Before:                        Judge Moran

I. Introduction: On November 18, 2010, Bledsoe Coal’s Abner Branch mine was
notified that it was under a potential pattern of violations. To avoid the designation of having,
not simply a potential pattern, but to be identified as having a pattern of significant and
substantial (“S&S”) violations, Bledsoe was advised by MSHA that it had to achieve a certain
maximum rate of such violations in its next inspection. It failed to achieve that rate, as MSHA
found 18 violations that it designated as having the S&S attribute. Bledsoe challenged both the
legitimacy of the pattern regulations and the findings that the 18 citations were in fact properly
denominated as being “of such nature as could significantly and substantially contribute to the
cause and effect of a . . . mine safety or health hazard.”

A hearing was held in London, Kentucky from September 5 - 7, 2012 on the issues of the
validity of those 18 citations and their designation as “S&S.” The parties stipulated that, under
application of the pattern regulations, MSHA needed to prove that at least 9 of the 18 citations
were validly issued and were S&S.

Upon the conclusion of the hearing, the parties, having first waived closing arguments
and the filing of post-hearing briefs, the Court then announced its finding that all 18 of the
citations were affirmed as violations and that fifteen (15) of those citations were S&S, while
three (3) did not have the significant and substantial attribute. Accordingly, for the reasons
which follow, the Court upholds MSHA’s determination, placing Bledsoe Coal’s Abner Branch
Mine under the pattern of violation designation, as provided by Section 104(e) of the Mine Act,

and imposes civil penalties for them.

II. PRELIMINARY MATTERS

Understanding “Significant and substantial” violations and the Pattern Provision under
the Mine Act

Section 104(e) pattern violations placed in perspective.

Although in place since the Federal Mine Safety and Health Act of 1977, a period now of
nearly 35 years having since passed, the pattern of violations provision has not be used as an
active enforcement tool until recently. In that sense, because it has now left its previously
dormant state, it is “new” to the mining community. While this has caused commotion within
that community, the provision, when examined from a calm perspective, is not especially
remarkable in the context of the enforcement of the citations and orders provisions Congress
designed under the Mine Act.

Congress provided a thoughtful enforcement scheme under the Mine Act and when that
overall scheme is examined, it is clear that the pattern provision is not draconian in any sense. An examination of the operative provision, section 104 of the Act, demonstrates this. Where, upon inspections or investigations, violations are found, Section 104 provides an ordered
approach to dealing with them. Broadly stated, but without distortion, under section 104(a),
when a citation is issued for a violation, a time is then set for its abatement. If the violation is not
abated within the permitted time, a withdrawal order, pertaining to the extent of the area affected
by it, is issued and miners are prohibited from that area until the violation is corrected.

However, Congress, in its wisdom and from its experience with mining tragedies, knew
that an effective enforcement scheme required more than the tool of section 104(a). Based upon
that recognition, it included two enhanced enforcement provisions to deal with two specialized
compliance problems. These appear in section 104(d) and section 104(e) of the Mine Act. Both of these provisions were present when the 1977 Mine Act came into existence, in
November of that year. The thrust of section 104(d) is to deal with a violation with two
specialized attributes not called out in section 104(a). The “(d) provision” addresses a violation
which is “of such nature as could significantly and substantially contribute to the cause and effect
of a [mine] safety or health hazard” and which violations also were caused by an unwarrantable
failure

by the mine to comply with those standards. When those two attributes coincide, a (d)(1)
notice is issued but the potential for enhanced enforcement is also triggered because if, in the
ensuing 90 days, there is another violation found and such violation is also caused by an
unwarrantable failure, all miners in the area affected by that violation must be withdrawn until
the matter is abated. Once that occurs, what is referred to as the “(d) chain” comes into effect.
That is, a mine is then faced with one withdrawal order after another each time another
unwarrantable failure violation occurs and that withdrawal order consequence continues until an
inspection of the mine finds no unwarrantable failure violations. This is known as a “clean”
inspection, so described because it is free of more unwarrantable failure violations. The Court of
Appeals has described this as a powerful enforcement tool, which is directed chiefly at
unwarrantable failure violations. UMWA v. FMSHRC and Kitt Energy Corp., 768 F.2d 1477 at
1478-79 (D.C. Cir. 1985). Thus, without oversimplifying it, section 104(d) is primarily focused
upon violations which occur in association with an unwarrantable failures to comply with safety
and health standards.

Understanding that this is the thrust of section 104(d), with its focus on unwarrantable
failures to comply with the law, makes it easier to appreciate the different focus of the
enforcement aim provided by section 104(e) “pattern” violations. While the emphasis of
section 104(d) is upon unwarrantable failures to comply with the law, section 104(e) is
particularly concerned with the situation where there has been a pattern of “significant and
substantial” violations. This S&S pattern provision makes no reference to the degree of
negligence or unwarrantability associated with a given violation; it only addresses situations
where there has been a pattern of violations whose nature could significantly and substantially
contribute to the cause and effect of mine health or safety hazards.

If the two elements are present - S&S violations for which there is a pattern of their
occurrence - Congress enacted a prescription which follows the same, well-known, enforcement
scheme that applies for unwarrantable failures. Accordingly, when a pattern of S&S violations
has been identified, the mine receives a notice from the Secretary of the pattern’s presence.
Then, as with the Act’s treatment of unwarrantable failures, if in the 90 day period following the
pattern notice a subsequent inspection finds another S&S violation, a withdrawal order will be
issued for the area affected by that subsequently-found S&S violation. The withdrawal order,
just as with the section 104(d) unwarrantable failure circumstance, is lifted only after the new
S&S violation has been abated. That process, a withdrawal order for each subsequent S&S
violation continues until an inspection of the entire mine reveals no more S&S violations. Such a
“S&S -free” or “clean” inspection releases a mine from its former pattern status, just as a clean
inspection releases a mine from an unwarrantable failure (d) chain.

Thus, Congress was concerned not only with the circumstances where unwarrantable
failures to comply with the law occur but it also had an independent and distinct concern when
S&S violations occur as a pattern. In other words, apart from any measure of the culpability
involved, the focus of unwarrantable violations, Congress also intended to deal forcefully with
the presence of a pattern of S&S violations. Consequently, despite the reaction expressed over
the pattern provision, it addresses Congress’ express concern with significant and substantial
violations and it employs the familiar and well-established enforcement progression found in
section 104(d). As in circumstances when unwarrantable failures reoccur, and the 90 day
provision and clean inspection are implemented under section 104(d), essentially the same
procedures are employed when S&S violations occur in a pattern. Though mine operators
obviously want to avoid the 104(d) designation and the chain which may ensue, the community
understands and copes with the reality of the provision’s presence. The Court expects that, in
time, mine operators will adjust to the activation of this long-existing provision which deals with
a pattern of those more serious transgressions designated as “significant and substantial”
violations.

Significant and Substantial Violations

The foundation for the S&S analysis, at least in terms of case law, comes from two
decisions: National Gypsum, 3 FMSHRC 822, 825 (Apr. 1981) and Mathies Coal, 6 FMSHRC 1
(Jan. 1984). Mathies built upon National Gypsum by identifying four elements needed for a
violation to be considered S&S. Expressed in a bare bones fashion, those four elements are:

1. a violation of a standard or a violation of the Mine Act itself; 2. the identification of a
   “discrete safety hazard,” which the Commission has equated with a “measure of danger to safety;
2. a reasonable likelihood that an injury will result; and 4. an injury which would be a reasonably
   serious one.

The Commission and the Courts have added to this brief explanation, some highlights of
which will be related here. The first requirement, a violation of a standard or a violation of the
Mine Act itself, is straightforward. Inclusion of violations of the Act itself, not simply safety and
health standards promulgated under it, makes sense because the Act has its own safety and health
provisions established in its text.

The second requirement, the identification of a discrete safety hazard, means that there is
a measure of danger to safety contributed to by the violation. For each violation alleged to be
“significant and substantial,” the relevant hazard associated with the violation must be identified.
Accordingly, to provide a few illustrative examples, in a case involving a violation for the lack of
berms on a roadway, the judge cited the hazard of a vehicle veering off the roadway and rolling
or falling down the incline. Black Beauty Coal, 2012 WL 3255590, (Aug. 2012). So too, in
Cumberland Coal, 33 FMSHRC 2357, 2366 (Oct. 2011), the Commission held that an operator’s
failure to install lifelines that could not be used effectively contributed to the hazard of miners
not being able to escape quickly.

Thus, it is not the absence of a berm or the improper
positioning of hooks along a lifeline that is the focus. Rather, for the second element, it is the
hazard associated with the absence of those devices that is the subject for this part of the S&S
analysis.

As for the third element, the Mine Act itself requires only that the violation of a standard
make a significant and substantial contribution to the cause and effect of the identified mine
hazard. It therefore may be thought of as a violation which has the effect of advancing matters
towards the creation of a hazard and therefore moving events towards a hazard’s emergence.

U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). While this third element, that there
be a reasonable likelihood that the hazard contributed to will result in an injury seems, in
practice, to be the most difficult to apply, the applicable test, that there be “a reasonable
likelihood” that an injury will result, is not as complex as it seems. It also may be helpful to
understand this when viewed from the perspective of what is not required. Thus, the test does
not require that it be demonstrated that it is more probable than not that an injury will result.
Instead, only a reasonable likelihood is required to be shown. Whether that reasonable
likelihood of an injury occurring has been shown is evaluated in the context of assuming
continued normal mining operations. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug.
1985).

Finally, the fourth element, that the injury must be a reasonably serious one, has not been
difficult to apply.

Another way to express this is that negligible mining mishaps, such as bumps,
bruises and small cuts, do not constitute reasonably serious injuries. It’s important to appreciate
that when a standard is violated, the absence of an injury producing event actually occurring does
not mean that the violation was not S&S. Restated, no injury need occur for the violation to be
S&S. Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005)

III. Analysis of the Citations in issue.

Docket No. KENT 2011 1162

Citation No. 8405309

Inspector Grady D. Russell issued this citation on January 26, 2011, invoking 30 C.F.R. §
75.1720(a), upon observing a miner plastering a brattice without suitable eye protection. Gov.
Ex. 1 (“GX 1”). The relevant portion of the cited standard provides that: “each miner regularly
employed in the active workings of an underground coal mine shall be required to wear the
following protective clothing and devices: (a) Protective clothing or equipment and face-shields
or goggles when welding, cutting, or working with molten metal or when other hazards to the
eyes exist from flying particles.”

There is no dispute that the miner was not wearing goggles. In fact, upon the citation
being issued, the miner retrieved his nearby goggles and donned them, whereupon the violation
was abated. The Respondent disputes the S&S characterization of the violation on the basis that
the consistency of the plaster made it unlikely that the miner would be subjected to “flying”
material. The Court does not agree.

As noted, the violation itself was established. The discrete hazard was an eye injury; the
measure of danger to safety contributed to by the violation was, by not wearing goggles, no
protective barrier was present and the miner was subjected to the plastering material contacting
his eyes as he plastered the brattice. Certainly, the absence of goggles contributed to the cause
and effect of a safety or health hazard. Only one other ingredient would be needed for the hazard
to come to fruition: the plaster contacting the goggle-less miner’s unprotected eyes. It was the
Inspector’s view that this was a reasonably likely occurrence. Inspector Russell, in addition to
his considerable mine experience, has an industrial hygiene degree. Therefore, from both the
areas of Inspector Russell’s education and his experience, the Court places weight up upon his
opinion that the event was reasonably likely to occur and that it, if it did result, the injury would
be reasonably serious, as lost workdays or restricted duty could be reasonably expected.  

That is not all. As reflected in Gov. Ex. 2, in the material safety data sheet (“MSDS”) for
the type of plaster being used that day, the “Hazards Identification” section of that MSDS warns
that “[d]ue to the [product’s] alkalinity, [it] can be irritating to eyes . . . [and that] [e]ye contact
can cause tearing, redness, and severe irritation.” Further, if such eye contact were to occur, one
is to “[i]mmediately flush with water for fifteen minutes holding eyelids apart [and] . . . Seek
medical attention immediately.” GX 2 (emphasis in exhibit). In addition, contrary to
suggestions that flying material would be unlikely and, beyond the Inspector’s viewpoint about
such an event, it is noted that the product is sufficiently non-viscous that it can be stirred. That
the manufacturer recognizes the risk of eye contact is obvious from the MSDS, as it advises
wearing “chemical safety goggles.” Last, it may be noticed that this work was not being
performed in a laboratory, surgical or “white room” setting. Instead, the work consisted of
smearing the product on the brattice. Clearly, it is supportable to conclude, for the reasons
articulated above, along with the first two Mathies elements, that the twin likelihood elements of
the Mathies’ analysis were present.

Accordingly, the Court finds that the violation was S&S and imposes a civil penalty
of $499.00.

Docket No. KENT 2012 34

Citation No. 8352926

Inspector John Sizemore issued Citation No. 8352926 on January 20, 2011, citing the
mine for a violation of 30 C.F.R. § 75.220(a)(1). That standard provides: (a)(1) “Each mine
operator shall develop and follow a roof control plan, approved by the District Manager, that is
suitable to the prevailing geological conditions, and the mining system to be used at the mine.
Additional measures shall be taken to protect persons if unusual hazards are encountered.”

The Condition or Practice section of the Citation issued here states that the: “operator had
not followed the approved roof control plan [in two respects] 1. The distance from the last row of
corner bolts to the rib support measured from 54 to 58 inches for a distance of 11 ft. This area is
located on the outby side of the 1st intersection outby the # 8 belt tail piece on the return side of
the entry. 2. The distance measured between the pillars located between the 1st and 2nd crosscuts
outby the # 8 belt tail piece measured from 25 ft. to 29 ft. in width. The maximum entry width in
this location (allowed by the approved roof control plan) is 20 ft. Standard 75.220(a)(1) was
cited 17 times in two years at [the Abner Branch Rider] [ ] mine (17 to the operator, 0 to a
contractor).” GX 3.

The two cited conditions involved the same pillar of coal. Tr. 10. The Inspector stated
that each cited condition, independently, was an S&S violation, though they were cited together
as a single citation. Tr. 11, Vol. 2.

There is no dispute over the fact of this violation for failing to comply with the approved
roof control plan. Although too much time was spent at the hearing regarding the undisputed fact
that the maximum widths under the plan may be exceeded by an additional 12 inches, such
exceedances can only exist for a maximum of five (5) feet. In the two instances cited for
excessive widths, one continued for 11 feet, while the other was beyond the additional 12 inches
allowed for short distances, as 25 to 29 foot widths were present and the plan permits a
maximum entry width of 20 feet. Timbering and steel jacks were required to abate the condition
to bring it back into compliance with the plan’s minimum requirements.

Respondent’s Mine Superintendent, Mr. Oliver, was traveling with Inspector Sizemore on
that day, January 20, 2011. Vol 3. Tr. 12. Oliver stated that “this area [they] had pulled, this was
an outby area on the # 8 belt. This was at crosscut #50 right where the drive was set to turn right
and the tailpiece was there. And the right rib had sloughed off and when we had moved back
there and set up, we had put up a row of five-foot bolts in pizza pans and respotted that [ ] areas.
And there were some timbers set on the sheer in the break . . .” Vol. 3 Tr. 13. The sheer was
there to make it wide where one turns a crosscut. However, he noted that it had sloughed all the
way down that pillar but that it had been cleaned up and rebolted. Vol 3. Tr. 14. The “pizza
pans” are 18 inch square metal pieces used to control draw rock. R’s Exhibit R 2, a photograph,
shows the area about which the citation was issued. Noting that the photo depicts an area where
it sloughed off, he stated that the bolts had been added after that occurred. Vol. 3 Tr. 16. Oliver
contended that when he arrived at the area with Sizemore, there were timbers in place. Vol. 3 Tr.

16. This was done because of the corner being wide. He added that more jacks had to be added
    in the area to abate the citation. Vol.3 Tr. 18.

Oliver was next shown Exhibit R 3, another photo of an area that was cited. This photo
shows what was done to abate the citation. This shows, among other things, a new jack, that is in
the picture’s foreground and it has no rock dust on it. Vol 3 Tr. 19-20. In the background is
another jack which jack has rock dust on it. He could not recall how many jacks had to be set in
order to terminate the citation. Vol. 3 Tr. 21. He twice noted that the roof in this area was
sandstone. Vol. 3 Tr. 20. The point of this observation was to assert that it is a real solid, hard,
roof and therefore that the roof presents “no problem . . . at all.” Vol. 3 Tr. 22. Nor did Oliver
believe there was any issue with the condition of the ribs. He also added that the roof is not high
in this location, another factor he considered making it safer. One does not need to bolt ribs
where a roof is under eight feet high. Vol. 3 Tr. 23. Nor did he believe that the jack or timbers
that were already present were taking any weight. Vol. 3 Tr. 23.

Oliver conceded that he took no issue with the measurements taken by the Inspector. Vol
3 Tr. 25. He also agreed that, per Respondent’s own exhibits, R 2 and R 3, someone decided that
supplemental support was in fact needed in the cited area. Vol. 3 Tr. 25. Pizza pans are added to
a roof to control draw rock only, that is to say, to deal with the immediate roof. Vol. 3 Tr. 26. Oliver also agreed that the wide part was more than just on the corner but also went into the
entry. Vol. 3 Tr. 29. Although he then did not agree that more conventional support was needed
to deal with the sloughage into the entry, suggesting that an extra row of bolts would suffice, he
admitted that such a remedy is not part of the ground control plan for this mine and that it was
not acceptable for this mine’s geology. Vol. 3 Tr. 29.

Regarding the mine’s use of pizza pans, Mr. Oliver agreed that their use was based on its
concern that the roof bolt and plate needed that additional protection from draw rock. Vol. 3. Tr.

32. This concern existed despite the presence of the sandstone roof. Vol. 3. Tr. 32.

The Court finds that, in the single citation, the standard was violated, that it was violated
in two separate and independent manners and that each cited condition, independently, was
significant and substantial, though the twin problems were viewed as a single violation. The discrete hazard is, rather obviously, roof falls. With lost work days or restricted duty being a
very reasonable assessment of the type of injury that could be expected, the likelihood of such an
injury occurring was the only matter left in dispute. Here, the Court finds that it would be
reasonably likely to occur. This conclusion is supported by the Inspector’s view of that
likelihood.

As with Inspector Russell’s background, Inspector Sizemore also has a breadth of
experience in mining, both in the private sector and in his time with MSHA, with the latter
having begun in 1991. Inspector Sizemore informed that had he found either of the two
conditions present, he would have marked each as S&S. That is, the conditions did not have to
exist in tandem for his S&S finding. The basis for his conclusion rested upon more than one
consideration. He noted that roof control plans provide for the minimum control measures to be
implemented. The Court can take notice of the fact that roof falls remain a leading cause of coal
mining deaths in the United States. Inspector Sizemore also testified, and the Court credits his
testimony on this violation, that he observed stress on the pillars in the cited area and that he saw
loose ribs. When widths exceed the maximum allowed under the roof control plan, it is
axiomatic that the roof support is decreased from that which is needed and required as the
minimum requirements. Pillars, when widths are excessive, necessarily take increased pressure
on them and such increased pressure can cause ribs to pop out.

Thus, Inspector Sizemore’s
opinion about the likelihood of an injury was reasonable and augmented by his visual
observations.

Exposure to the excessive width conditions would exist for the belt examiners as
well as those doing repairs or maintenance in the area.

Accordingly, the Court finds that the violation was S&S and assesses a civil penalty
of $1,700.00 for the violation.

Docket No. KENT 2012 1162

Citation No. 8352931

In this instance, Inspector Sizemore cited Bledsoe for a violation of 30 C.F.R. 75.202(a).
Entitled, “Protection from falls of roof, face and ribs.” That standard provides: “The roof, face
and ribs of areas where persons work or travel shall be supported or otherwise controlled to
protect persons from hazards related to falls of the roof, face or ribs and coal or rock bursts.”

The condition or practice section of the Citation stated: “Two of the three cribs installed
under a stress crack, in the 2nd left cross cut inby, the portal, in the track entry, were not secured
against the roof. The cribs, headers and cap boards were loose and moved freely when
examined.” Gov. Ex. 6.

Sizemore stated that all miners were exposed to this condition as they pass the area on the
way to the working section. The area is also required to be preshifted. The entry is also used as
an escapeway. The cribs were not installed for decor. There were, and it is not denied, cracks in
the roof running across the tracks at the location of the cribs. While miners traveling on a “rail
runner” to the working section were in a covered vehicle, that covering was not a ROPS

type
structure.

The cribs were installed to provide additional roof support to address the crack or break
in the roof, running across the tracks. However, while they were present, there was no claim that
the cribs could perform their support role if not secured snugly against the roof. Although the
gap was narrow, any gap means that the cribs are not providing roof support. The cribs provided
no additional support for the roof when they could be moved about freely. Thus, the cribs cited
were only holding up air, not roof. While the roof did not show sagging when the Inspector
found the problem, he noted that had that been the case he would have marked the gravity as
being “highly likely,” instead of “reasonably likely” to occur. To be deemed S&S, the required
finding is “reasonably likely,” not “highly likely.”                            

Although Respondent’s witness Oliver testified about the citation, he only observed the
problem after cribs had been tightened so that they could resume their roof support function.
Thus, he was not present on the day the cribs were cited. Further, he agreed that there was a
stress crack present across the entry. While he considered the crack to be a “minimal” one, that
characterization sidesteps the fact that the cribs were installed in the first place for the purpose of
dealing with the stress crack. Thus, there was no assertion that the cribs were not in fact
necessary or not needed. Vol. 3. Tr. 34-35. Still, he described that crack as “hairline” and not as
much a concern as a hillseam, which is an open joint, would present. He acknowledged that the
cribs had been installed because the crack is on a track entry and because the mine was
envisioned as “a long term mine.” Vol. 3. Tr. 35. As it existed in the track entry, people will
ride and pass under it, but he did not believe that miners had any reason to be walking in that
area. Vol. 3. Tr. 37. As mentioned, those riding the track are not on equipment with ROPS or at
least Mr. Oliver did not know what the covers on the mantrips using that entry could withstand,
nor what the ratings were for such covers. Vol. 3. Tr. 42. This entry is also an escapeway and in
such an event miners would be walking under that area. Vol. 3. Tr. 42. Over time, the cribs will
shrink, and Oliver informed that “you’ve got to go back and retighten along, you know, as they
loosen up.” Vol. 3 Tr. 36 (emphasis added). That did not happen here.

The mine’s general manager, Mr. Osborne, also testified about the cribs issue, stating that
they were quite old. He did not know how old they were however. Tr. 338. In the Court’s view,
accurate or not, the age of the cribs is beside the point. The issue is whether they were
performing their role by providing support. The evidence is that they were not functioning for
that task, as they were able to move freely. Consequently, old or newly installed, they were not
providing the support determined to be needed in that area.

Therefore, for this Citation too, there was no claim that the roof did not need the cribs. In
fact, their presence attested to their need. The problem was that cribs which can be moved
around freely, by definition, are not supporting any roof. That is why proper installation includes
the cribs, cap boards and headers, which all work in concert to make sure that the cribs are tight
against the roof and thereby providing support to it.

Accordingly, the violation was undeniably established as the roof where persons traveled
was not adequately supported to protect persons from hazards related to falls of the roof.

The violation having been proven, the S&S analysis continues with second element, the discrete
safety hazard, the risk of a roof fall. Absent effective cribs, the roof could not provide the level
of support deemed necessary by their installation. The risk of a roof fall was increased once the
cribs stopped providing their support function. The notion that the cribs had been there a long
time and yet there had been no roof fall establishes nothing because it is unknown how long the
cribs had stopped their function of roof support. The Court takes notice that roof falls can occur
suddenly and without warning. Given the Inspector’s view that there was a reasonable likelihood
that an injury would result, when coupled with the absence of effective cribs, the Inspector’s
viewpoint is sound and the Court makes the finding that the absence of the effective cribs did
present such a reasonable likelihood and the third element of Mathies was established. Further,
by their nature, it is reasonable to assume that should a roof fall occur and some roof strike a
miner, lost workdays or restricted duty, and therefore a reasonably serious injury, would be the
likely result.

Accordingly, the Court finds that the violation was S&S and assesses a civil penalty
of $499.00 for the violation.

Docket No. KENT 2011 835

Citation No. 8352936

On February 1, 2011, Inspector Sizemore cited Bledsoe under 30 C.F.R. § 75.202(a) on
the basis of observing a “loose ended dropped down piece of sandstone roof measuring 32 inches
in width by 51 inches in length by 1 inch to 6 inches in thickness [ ] in the 1st cross cut outby the
last open break in the # 2 entry on the 001 section.” In his citation, he noted, “The loose rock
was pulled down with little effort.” Gov. Ex. 9. Later, the Inspector was instructed to add an
additional condition he observed in the same section, this time noting there was “[u]nsupported
loose ended coal measuring 6 inches in thickness by 16 ft in length by 3 ft in width [which] was
observed loose ended and dropped down from the roof in the last open cross cut between the #3
and #4 entries on the 001 section.”

Gov. Ex. 9, continuation sheet, Citation No. 8352936-01.

Thus, two roof control hazards were cited on the same MMU. Mining was actively
proceeding at the time the conditions were cited. Accordingly, exposure was present for all
miners traveling in the cited areas, in the course of moving equipment, doing examinations, rock
dusting and scooping. The twin-cited conditions were a crosscut apart from each other. For the
loose-ended sandstone, Sizemore estimated that the material taken down would weigh several
hundred pounds, while the unsupported loose-ended coal would weigh at least 150 pounds.
Given those weight estimates, it is understandable that the Inspector concluded that one who was
hit by such materials, in either instance, would be seriously injured. The Court adopts this
conclusion.

As noted, the cited provision, entitled, “Protection from falls of roof, face and ribs,”
provides: “The roof, face and ribs of areas where persons work or travel shall be supported or
otherwise controlled to protect persons from hazards related to falls of the roof, face or ribs and
coal or rock bursts.” Inspector Sizemore stated that there would be foot travel in the cited area
and that persons would travel in both crosscuts. He added that exposure would occur 2 to 3
times during the course of a shift and that all miners in the section were exposed to the cited
hazards.

Respondent’s witness, Mr. Oliver, principally challenged the amount of cap coal that fell,
but otherwise his testimony, in the Court’s estimation, did little to contest the circumstances that
were present, as presented through the Inspector. Mr. Oliver stated that he was not right with
Inspector Sizemore when they found that “piece of rock.” His presence was after they had pried
the rock down. Vol. 3. Tr. 57. However, he was present for the second condition found by the
Inspector. This second condition involved what Oliver describes as “cap coal.” For this
condition, he agreed it six inches thick by three feet in width and it was out from the rib by three
feet. Vol. 3. Tr. 60.

Clearly, the violation was established; each of the two conditions cited on the 001 section
independently constituted violations of the cited provision. They separately presented a roof fall
hazard and the materials came down easily in abating the problems. Inspector Sizemore
determined that each condition, independently, constituted significant and substantial violations.
The Court agrees. The discrete safety hazard was the risk of a roof fall. Given the ease with
which the materials came down, and the exposure Sizemore identified, there was, demonstrably,
a reasonable likelihood that an injury would result. Given the amount of the inadequately
supported materials present in each cited condition, there can be no doubt that any injury, should
one occur, would be a reasonably serious one.

On the basis of the foregoing, the Court concludes that the standard was clearly
violated, for each of the two separate and independent conditions observed, and that each
was a significant and substantial violation. Given the twin conditions, albeit expressed in a
single citation, the Court imposes a civil penalty of $800.00 for this violation.

Docket No. KENT 2011 1162

Citation No. 8352932

On February 1, 2011 Inspector Sizemore cited the mine for another violation of 30 C.F.R.
§ 75.202(a).

It will be recalled that the cited provision entitled, “Protection from falls of roof,
face and ribs,” provides: “The roof, face and ribs of areas where persons work or travel shall be
supported or otherwise controlled to protect persons from hazards related to falls of the roof, face
or ribs and coal or rock bursts.”

In this instance, the Inspector noted in the condition or practice section of his citation that
“[n]ine (9) bearing plates provided for the roof bolts installed in the roof located in the 3rd cross
cut inby the portal, in the belt side cross cut, in the track entry, were not touching the roof. The
draw rock had fallen out around the bolts, leaving the bearing plates loose.” Gov. Ex. 8.
Citation No. 8352932.

The Inspector found the loose plates one crosscut, or “one break” inby the from the area
where he had earlier cited the mine for the loose cribs, per Citation No. 8352931. There were
two areas affected by the loose bearing plates, one 7 foot by 8 foot area and another area,
measuring 8 feet by 20 feet. The Inspector stated that he observed draw rock on the mine floor.
When draw rock has come out, the integrity of the “beam” provided by the roof bolt is
diminished. This is because the bearing plate and the roof bolt operate in tandem.

One cannot
install a roof bolt without a bearing plate. Additional draw rock is more likely to fall out when
the bearing plate is no longer flush and some draw rock has already fallen. The Inspector
estimated that additional pieces which could fall would be in the range of some 7 to 9 inches in
thickness, and therefore enough to hurt someone. Inspector Sizemore stated that all miners pass
through this area and that he has observed miners in the area as well. Exposure would be both
from those walking through the area and those riding the “rail runner” mine transport.

Respondent’s Mr. Oliver did not see this condition until after cribs had been built in the
area of the loose plates. Vol. 3 Tr. 45. He did not dispute that there were loose plates. However,
he did not agree that this was an area where people travel. Tr. 45. Oliver stated that there was no
reason to be over in that crosscut. Noting that cribs were at the mouth of this crosscut, Oliver
believed that the loose bearing plates must have been some 5 or 10 feet in from there. Vol. 3, Tr.

47. If one had to fix a brattice there, Oliver stated it could be fixed from the belt line side. Vol.
    3 Tr. 48. However he agreed that the pressure side of the brattice is on the track side and
    therefore that is the side that would need good plastering. Vol. 3 Tr. 50. He maintained that one
    would not need to go into that crosscut to rock dust, because it is sprayed into that area.

Oliver informed that this is an old mine which was rehabilitated. In that process they had
cut height and rebolted the track entry. In doing that, Oliver stated, they removed the old bolts,
cut new height and then rebolted. Yet he advised that the crosscuts had not been rebolted. Vol.

3. Tr. 53-54. They did not take those steps for the crosscuts adjacent to that track on the basis
   that the area “looked good” and the plates there were good at that time. Vol. 3 Tr. 55.

Implicitly, Oliver agreed, or at least he did not challenge that there were loose bearing
plates, as cited by the Inspector. Instead, the focus of his testimony was that there was no
exposure to the hazard. However, he conceded that one could go into the cited area to perform
rock dusting or to work on a brattice. The Court, upon consideration of the conflicting testimony
as to exposure, credits the testimony of the Inspector on the issue of exposure.

As with the other matters in this proceeding, there is no real challenge to the first two
elements of the S&S Mathies analysis. The violation was present and the discrete safety hazard
is the risk of a roof fall. Here, at some point, draw rock had fallen from the area around the loose
bearing plates, so a roof fall of some degree had occurred. The situation had become worse once
the draw rock had fallen from around the nine plates because the design of the support was no
longer performing, as intended, with the plates and bolts working in concert. The unsecure plates
therefore contributed to the cause and effect of the mine hazard of a further roof fall. Given the
exposure, it was reasonably likely that an injury would result. Considering the nature of the
hazard, roof falls, a reasonably serious injury would be the likely result if a miner were struck by
draw rock. Such an injury would be likely to cause lost work days or restricted duty, and with
the inherent unpredictability of the occurrence of a roof fall, a more serious injury could also
occur. The size of the two areas affected, which were relatively large in the Court’s view, also
plays a part in the analysis that an injury would be reasonably likely and that, should one occur, it
would be reasonably serious.  

Accordingly, upon consideration of the testimony, the Court affirms the violation
and the S&S finding and imposes a civil penalty of $499.00.

Docket No. KENT 2011 1162

Citation No. 8352943

In this instance Inspector Sizemore cited Bledsoe for another violation of 30 C.F.R. §
75.202(a). It will be recalled that this provision titled “Protection from falls of roof, face and
ribs,” provides that: “The roof, face and ribs of areas where persons work or travel shall be
supported or otherwise controlled to protect persons from hazards related to falls of the roof, face
or ribs and coal or rock bursts.”

The Inspector’s citation provided that “[a] section of roof between the 32nd and 33rd cross
cut on the return side of the #8 belt conveyor measured from 53 inches to 6 ft from the edge of
the pillar to the last row of permanent supports for a distance of 23 ft.”

Just as he did with Citation Number 8352926 Inspector Sizemore cited the Respondent
for a wide area. The maximum allowable width was 48 inches and, as with the other excessive
width citation, the 5 foot distance, allowing an exceedance of 12 inches over the 48 inches, is
limited to five feet. Here, the wide area, running some 23 feet, far exceeded the five foot
absolution from the 48 inch requirement. Gov. Ex. 10. Sizemore expressed that there would be
exposure to the belt shovelers in this area and that they would need to shovel both sides of the
belt.

Respondent’s witness, Mr. Oliver, agreed that there were some wide bolts. However, it
was his contention that the roof and ribs looked good. Still, he admitted there was some
sloughing. Although he expressed that the condition was not plainly obvious, he conceded that it
is the examiner’s responsibility to look for such problems. He also agreed that the mine
examiner is supposed to note things like this, such as rib sloughing and areas that are too wide.
Vol. 3 Tr. 67.

Here, Oliver did see the condition cited and, as noted, he agreed that the rib had sloughed
off and that there were also some wide bolts. Vol. 3 Tr. 63. He felt the top looked good but
there was the issue with the rib sloughage. Vol. 3 Tr. 64. This condition, he advised, went for 23
feet, which is about 5 rows of bolts. Vol. 3 Tr. 64. To deal with the problem, they had to set four
timbers. Vol 3 Tr 65. He conceded that when there is rib sloughage, there will be coal on the
floor from that and that the belt examiner will be there every working shift to see this. Vol. 3 Tr.
68.

The violation was established and the discrete safety hazard is the increased risk, that is,
the measure of danger contributed to the risk of a roof fall, by the excessive widths. Here, far
beyond the 5 foot allowance for a width to run beyond the 4 foot width called for in the plan, the
excessive width continued for an additional 18 feet, with the result that the excessive width
continued for 23 feet.

The Inspector’s opinion that it was reasonably likely that an injury would result is
supported by the fact that the failure to follow the plan was extensively exceeded. One must not
lose sight of the fact that the plan’s requirement provides for a maximum width of 4 feet from the
edge of the pillar to the last row of permanent supports. Those requirements are not arbitrary;
they are mandated to provide sufficient roof support for the conditions at a given mine. It is
axiomatic that the mine’s roof support was diminished by the excessive width.

That a reasonably serious injury would result was established by the Inspector’s testimony
that examiners and those required to work on the belt would be exposed to the insufficient
support in that area. Further, as Inspector Sizemore noted, miners have to be able to travel on
both sides of the belt and the belt lines are to be on-shifted.

Accordingly, based on the foregoing remarks about the evidence, the Court upholds
the citation, finds that the violation was S&S and imposes a civil penalty of $499.00.

Docket No. KENT 2011 1162

Citation No. 8352920

On January 13, 2011, Inspector Sizemore cited Bledsoe for a violation of 30 C.F.R. §
75.400. That standard entitled, “Accumulation of combustible materials,” provides: “Coal 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 Citation was detailed, with the Inspector noting four separate accumulations of
combustible materials. It recorded the following accumulations: “1. Float coal dust, black in
color was observed deposited on the roof, ribs, and floor along the entire length of the # 1 belt
conveyor, including back into the cross cuts to the stopping lines. 2. Plastic bottles, water jugs,
food wrappers, pieces of conveyor trimmings, paper boxes and other combustible garbage was
observed strewn under and along the mine floor along the # 1 conveyor. 3. Loose coal measuring
from 1 inch to 14 inches in thickness was observed at different locations along the #1 belt,
including around and under the # 1 belt tail piece, requiring the belt to run in a compaction of
loose coal and float coal dust. 4. Dried strings of ‘cloth like material’ torn from the edges of the
conveyor belt were twisted in ‘fist full’ amounts around the bearing location of the rollers (top
and bottom). Note: The operator took the belt out of service until all conditions could be
corrected. Note: The operator is ‘Put on Notice’ if this hazard continues to be allowed to exist,
this type of citation will be considered for ‘High Negligence; and Knowing and Willful
assessment.” Gov. Ex 11.

Inspector Sizemore felt that the float coal dust had been present for “quite a while.”

While there was testimony from the Respondent that rock dusting was present and that shovelers
were working on the items listed in the Citation, the Inspector stated that he did not observe
either. Accepting that, as the Inspector stated, the float coal had been present for some time, and
considering the multiple categories of combustible materials and further considering that the
problems were extensive and not limited to a small area, whether some work was in progress at
the time the citation was issued is not relevant to either the fact of violation, nor to the significant
and substantial designation. In fact, given the Inspector’s comment in his Citation that the
situation was sufficiently flagrant so as to warrant a warning that the next time he would mark
such a violation as “high negligence,” it is fair to state that he was lenient in his assessment of the
negligence involved here.

Regarding the coal dust accumulations and whether there was any risk of the roller
igniting those, the Inspector believed there was such a potential. He also factored the “bird’s
nest” effect he observed. Tr. 288. The “bird’s nest” referred to the fraying on the edge of the
belt around some of the rollers. Tr. 290-291. This fraying was present around all three rollers.

The belt was running. Tr. 294.

The Inspector stated that the float coal dust had been there “quite a while.” The extent
that he observed plus his experience informed him in reaching that conclusion. Tr. 314. It would
have taken more than several shifts for these problems to develop.

Tr. 314.

It is noted that the float coal dust problem was along the entire belt. Tr. 303. In contrast,
the trash he found was more towards the surface. Tr. 303. The loose coal was along the entire
belt. Tr. 304. So too, the “birds nest” issue was present along the entire belt. Tr. 303.

The Court takes notice that Mr. Osborne testified about this Citation, per Gov. Ex. 11,
and the two related violations, per Government Exhibits 13 and 14. Mr. Osborne is presently the
mine’s general manager and he has held a number of other important positions at Bledsoe over
the years. There was a conflict in the testimony concerning the amount of trash, with Mr.
Osborne describing it as only enough to fill a small store plastic bag and Inspector Sizemore
describing it as much more than that. The Court credits the Inspector on this conflict.

While Mr. Osborne did see some accumulations, he contended that people were shoveling
in the cited area at the “V plow” but when questioned about the presence of accumulations along
the entire belt, as noted by the Inspector, Mr. Osborne could only say that he didn’t see that. Tr.

333. Thus, there was no complete denial of the full extent of the problem. Mr. Osborne also
     agreed that there was some “bird’s nest” present around rollers and thereby confirmed item
     number 4 in the Citation. Tr. 334.

Upon consideration of the record evidence, the Court concludes that all four bases listed
in the Citation for combustible material were established and that each, independently,
constituted a violation of the cited provision. Thus, in truth, there were four violations of the
combustible material prohibition along the # 1 belt. That there was a measure of danger
contributed to by the violations is obvious; combustible material of the types noted in the citation
in a coal mine is anathema to safe operation. All that is needed is an ignition source for the
problem to come to fruition. For the float coal dust problem, only an ignition would be needed to
create a present hazard. Tr. 307. The same is true for the other associated problems found along
this belt line; only an ignition would be needed. Tr. 307. i.e. to ripen into a present problem,
only an ignition would be needed to occur. Tr. 309. Certainly it cannot be disputed that there is a
reasonable likelihood that the hazard to which the violations contributed would cause an injury.
Any time there is a fire in a coal mine, there is a reasonable likelihood that a reasonably serious
injury will result. This may be as a result of smoke inhalation, CO exposure, or worse, to those
working in the mine as well as to those who would be called to deal with a fire.

With all four elements present, the violation is S&S. The Court imposes a civil
penalty of $1,203.00 for this.

Docket No. KENT 2011 1162

Citation No. 8352921

Inspector Sizemore issued Citation No. 8352921 on January 13, 2011. In doing so, he
invoked 30 C.F.R. § 75.1731(a) as being violated. That standard, entitled “Maintenance of belt
conveyors and belt conveyor entries,” provides “Damaged rollers, or other damaged belt
conveyor components, which pose a fire hazard must be immediately repaired or replaced. All
other damaged rollers, or other damaged belt conveyor components, must be repaired or
replaced.”

The condition or Practice section of the Citation stated: “[t]hree top belt rollers, with the
bearings wallowed out (resulting in the rollers turning metal to metal), were observed along the

1 belt conveyor. Note; A separate citation # 835292[0]

was issued for the accumulations of
combustible material along the # 1 belt conveyor providing a fuel source for this evident ignition
source, and was a factor in the S&S classification of this citation.

Note: The operator took the
belt out of service until all conditions could be corrected.” Gov. Ex. 13.

The Inspector did not know how long it would take for the wallowed

rollers to create
sufficient heat to cause an ignition. Tr. 289.

As to this Citation, Mr. Osborne did confirm that he also heard the screeching noise of the
defective rollers. Although he testified that he accompanied the Inspector on that day, upon
finding the first roller problem, he thereafter scooted ahead of the Inspector, finding the other
roller problems. It was Mr. Osborne’s position that the screeching rollers, with their bad
bearings, were failing, but had not yet failed. Upon finding the two additional problematic
rollers, Mr. Osborne decided to shut down the belt. Thus, he conceded that the problems he
found were serious enough that he decided to shut down the belt. Tr. 356.

The violation was established and was properly designated as S&S. In making this
determination the Court took into account the testimony of Mr. Osborne but arrived at
conclusions contrary to his view of the matter. The discrete safety hazard was a mine fire. The
damaged rollers, with their defective bearings, could become hot. When coupled with the related
problems identified by Inspector Sizemore in Exhibit 11 (supra) and Exhibit 14 (infra), the third
element of Mathies was established. Should a mine fire develop in these circumstances a
reasonably serious injury would be expected.

A civil penalty of $634.00 is imposed for this S&S violation.

Docket No. KENT 2011 1162 

Citation No. 8352922

In this, the last of the three citations that Inspector Sizemore viewed as appropriate to be
considered together,

he issued Citation No. 8352922 on January 13, 2011, citing 30 C.F.R. §
75.1731(b) this time. That standard, again entitled, “Maintenance of belt conveyors and belt
conveyor entries,” provides at subsection (b) that “Conveyor belts must be properly aligned to
prevent the moving belt from rubbing against the structure or components.”

In the Condition or Practice section for this citation, the Inspector stated that “[t]he # 1
belt conveyor is not being maintained in proper alignment. The bottom belt was observed in
three locations cutting

into the metal structure of the belt conveyor. Note; A separate citation #
835292[0]

was issued for the accumulations of combustible material along the # 1 belt
conveyor providing a fuel source, for this evident, friction type ignition source, and was a factor
in the S&S classification of this citation. Note: The operator took the belt out of service until all
conditions could be corrected.” Gov. Ex. 14.

In this belt misalignment issue, which the Inspector described as “cutting” into the frame,
it would be more accurate to state that the Inspector actually meant “rubbing” of the belt
structure. Tr. 296. It is worth noting that Mr. Osborne admitted that he “know[s] what it takes to
make a belt fire. If you don’t take care of your belts, keep them in maintaining condition, they
will.” Tr. 369. He added that he had no idea how long a roller would have to run without
having bearings in it to start an ignition or get hot enough to start a belt fire. Tr. 369.

Respondent used Exhibit R 5 to illustrate how the rubbing belt appeared at the time of the
citation’s issuance. However, after some hesitation, Mr. Osborne admitted that the belt, as
pictured in R 5, was not aligned. Tr. 351. In making this determination the Court also took into
account the testimony of Mr. Osborne but arrived at conclusions contrary to his view of the
matter.

The violation was established and was properly designated as S&S. The earlier S&S
analyses for the other two related violations for the # 1 belt conveyor are incorporated here.

A civil penalty of $634.00 is imposed.

Docket No. KENT 2011 1162

Citation No. 8352917

For this citation, Inspector Sizemore cited 30 C.F.R. § 75.809,

which is entitled,
“Identification of circuit breakers and disconnecting switches.” It concisely provides: “Circuit
breakers and disconnecting switches underground shall be marked for identification.” It is
important to note that this standard also appears as a statutory provision in the Mine Act itself at
30 U.S.C. 868(j), Section 308 (j), where it provides the identical language contained in the safety
standard. To state the obvious, Congress, considered this provision to be serious and grave
enough to express the safety provision in the Mine Act, even though, by design of the statute, it
knew that the Secretary could, and did, also express it as safety standard.

Here, on January 11, 2011, Inspector Sizemore noted in the Condition or Practice section
of his Citation that: “[n]either the receptacle or the breaker (observed on the 001 section power
center) providing power to the (energized) # 9 belt drive was marked to show which equipment
the receptacle or breaker controlled.” Gov. Ex. 20. The Respondent does not contend that the
standard was not violated, but does challenge the S&S designation. To abate the violation, the
receptacle and breaker were marked. The hazard the standard is directed at is the risk of
electrocution or electrical burns. Tr. 29 Vol 2.

Inspector Sizemore, who is a “certified electrician,” but not an electrical inspector, stated
in his testimony that the # 9 belt was plugged into the receptacle and that the belt was energized
at the time he examined the power center. He did not know whether the belt was actually
running at that moment. Being under “load” it was drawing power.

While the “cat head,” (technically identified as a “cable coupler” Vol 2. Tr. 103) which is essentially a very large plug,
was labeled, neither the receptacle nor the breaker were labeled to show the equipment it
controlled.

Absent such labeling, in the event of an emergency, which by definition is a time
when action must be taken swiftly, a miner would not be able to identify how to deenergize the  # 9 belt.

Even in a non-emergency, knowing which device is being unplugged would seem to
be a fundamental practice. Congress thought so too. Many pieces of equipment are typically
plugged into the 001 Section power center: the joy miner, front bridge, middle bridge, back
carrier, and two bolter machines. Sizemore anticipated that electrocution or burns could result
from the items not being marked. Succinctly, the Inspector stated the hazard was that “in the
event of an emergency [ ] a miner wouldn’t be able to readily identify how to de-energize the No.
9 belt.” Tr. 17, Vol. 2.

The Respondent’s defenses involved two aspects.

One was that the Cat Head itself was
marked. The other was that one can hit the red button and shut down all the power at the power
center. Tr. 36-38. Vol 2. Neither of these, in the Court’s view, affect the S&S designation.
Respondent asserted that, in pulling out a Cat Head, by its design, when one pulls it out from the
receptacle, even if one has flipped the wrong breaker switch, the ground wire monitor becomes
disengaged first and therefore no danger can occur. This hypothetical assumed that the belt drive
has first been shut off and would not have a load on it.

The Inspector did not agree with the hypothetical’s assumption because one must always
knock the breaker first. Tr.41 Vol. 2. Counsel and Inspector Sizemore parried over when there
is a load present. All agreed that if the equipment is operating, then it is under load. If the
breaker has been “knocked,” that is, switched off, it was the Inspector’s view that there is still
power on the cable. He believed that if one knocks the breaker where the power connects to the
equipment, there is still power going to that breaker. Tr. 43. Vol 2. The Respondent’s
contention was that when one pulls out a cable it has to unlatch first and that action breaks the
ground monitor. The Inspector agreed that the power is then off at the cable but that power
remains on the power center. However, the Inspector added that if he saw someone do that, he
would cite them for improperly de-energizing equipment. Tr. 44 Vol. 2.

The Court then inquired why, assuming one followed the steps outlined by the
Respondent’s Counsel, the matter would still be S&S. The Inspector responded that one is to
knock the breaker before doing anything with the cat head. He added that anyone is allowed to
knock a breaker in an emergency; it is not limited to electricians. Tr. 47. Vol 2. Thus, in an
emergency, one is running up and trying to de-energize a piece of equipment and take the power
off it. In that situation it is critical to be able to recognize the breaker that controls the cat head
for the particular piece of equipment. Tr. 48. Vol. 2. One needs to be able to find the correct
breaker immediately and knock the power for the piece of equipment. Hitting the “E Stop” as
Respondents suggested is problematic too because other equipment may be under load, or
operating or energized; in such circumstances, knocking the power runs the risk of an arc or fire
because the equipment is running. Tr. 50 Vol 2. MSHA electrical Inspector Lewis (see infra)
agreed with this view that the E stop is not without risk. Vol. 2, Tr. 72. He explained that it is
similar to pulling a plug out from an operating home appliance. Tr. 51. Vol. 2. While that arc or
spark would occur inside the box, the Inspector’s point was that one should not be hitting the E
Stop if anything is under load. Tr. 54. Vol. 2. As Inspector Sizemore clarified, “the law
intends for the person to be able to look at that breaker and know exactly which one to knock and
also to look at the receptacle and make sure that its plugged into the right one, and for the cat
head to be marked to make sure that it’s plugged into the right one.” Tr. 53. Vol 2.

As just alluded to, MSHA Inspector Randall Lewis also testified about this citation.
Inspector Lewis is an electrical supervisor and well-qualified by virtue of education and
experience to testify about such matters. He has been a certified electrician since 1980. Gov. Ex.
26, Inspector Lewis’ resume. Inspector Lewis made it clear that he would have a concern where
a power center did not have the receptacle and breaker marked, even if the cat head was marked.
Tr. 63. Vol. 2. He echoed the concern expressed by Inspector Sizemore that a person that wanted
to knock the power to the belt drive would not necessarily know what was the proper breaker to
knock to remove the power to that system. Tr. 63 Vol 2. It is not simply about emergencies that
this concern arises. Any time one wants to do electrical work, such as work on the belt drive,
one needs to remove the power before starting such work. Tr. 63 Vol 2. Without labeling, one
will not be sure which breaker to pull. If one guesses incorrectly, there is the risk of an electrical
arc occurring upon pulling a cat head out, if the receptacle is still energized. Tr. 64. Vol 2.
Inspector Lewis noted that there have been instances when an individual has done just that,
pulled out a cat head under load and receiving burns. Tr. 64. Vol 2.

Pulling a cat head out when it is under load is a very hazardous thing because the arc can
be injurious putting one at risk for second to third degree burns. Tr. 68-69. Vol. 2. Inspector
Lewis knows of such instances when miners have received burns from such an event. Vol. 2 Tr.

69. He agreed with the Inspector’s view that it was “reasonably likely” that an accident could
    occur. Vol 2, Tr. 69. Though challenged that he did not say it was likely to get an arc when
    pulling out a Cat head, Lewis clarified that he meant it was only unlikely if it was not under a
    load. Vol. 2 Tr. 74.

As noted, the Respondent contended that the locking feature of the Cat head makes it
unlikely that an arc would occur because, in unlocking it, that breaks the monitor circuit.
Inspector Lewis agreed with that only if it is not under load. Vol 2. Tr. 76-77.

The Respondent called Lawrence Lawson on this matter. Lawson is the mine’s chief
electrician. He testified that if one unplugs the Cat Head when it is under load, the pilot ground
check will be the first part of that plug to disconnect. Thus, he contended that, because of this
way that a Cat Head disconnects, there will be no arc. Vol. 2 Tr. 98-99.

Lawson admitted that the power box for the receptacle was only labeled “spare.” Tr. 102.

Further, he stated that if one were to shut off the wrong breaker, and then went to unplug the Cat
Head, the ground check would break and cause the breaker to knock. However, in doing that,
there would be an arc inside of that breaker. Tr. 111. He maintained this is designed for such an
arc and that particular arc is much less powerful than an arc occurring in the power center.

To abate the Citation, Lawson advised, a label was placed on the receptacle, stating
“number 9 drive.” Tr. 117. He also stated that this power center had seven to eight similar
receptacles on it, so one would see that number of similar items along with the receptacle that
was not labeled. Tr. 118.

Lawson also advised that breakers will trip in the mine on a daily basis. When that
happens, no one records that a breaker has tripped. He added that whenever a breaker trips, there
will be an arc, though contained, within such breaker. Tr. 119. This arcing is not without
consequence however, as such arcing affects the life of that breaker. Manufacturers of such
breakers guarantee them for only one break. Tr. 120. He also agreed that there are lots of things
that can wrong with breakers. Tr. 123. Though he felt it was unlikely to happen, he did agree
that if one pulled out a plug and the breaker was faulty, there would be an arc. Tr. 123.
Accordingly, while there was a conflict between Inspector Lewis and Mr. Lawson, with the latter
asserting that there would only be arcing if one had a defective breaker, it developed that
Inspector Lewis did agree that one would need a defective breaker for this to occur. Still, it is
sobering to realize that a breaker is only guaranteed for one trip. Tr. 129.

As mentioned, Lawson believed there was no danger because in disconnecting a cat head
the last prong to disengage from it is the ground load, that is, the ground pin. Therefore one is
protected by a ground. He maintained that with a ground check system it is impossible to have
arcing. Vol. 2. Tr. 110.

However, Lawson stated that if he wanted to disengage the power from the cat head, he
would first knock the breaker right above it. Vol 2 Tr. 116-117. But that is exactly the problem,
as neither was labeled. In fact, Mr. Lawson’s own testimony demonstrates the problem. In
describing the receptacles and breakers on the power box, he first identified where the receptacle
for the continuous miner would be located. Then, he stopped, stating “Let me back up. I told
you wrong. Directly to the right of this was the carrier circuit, which is another receptacle
identical to this one.” Vol. 2. Tr. 116-117 (emphasis added). Thus, even as Mr. Lawson tried to
describe the various hookups on the power box at the hearing, he got mixed up about identifying
the correct receptacle. Typically, Lawson informed, there will be “seven to eight” such
receptacles on the power center. Vol 2. Tr. 128.

Further underscoring the obvious importance of labeling circuits, Mr. Lawson noted next
that the adjacent receptacle was for the carrier and, in his words, “it was correctly labeled.” Vol. 2 Tr. 118 (emphasis added). Another problem for the Respondent is that it admitted if one
wanted, for example, to cut off the cat head in issue here, one would first “knock the breaker.”
Vol. 2. Tr. 121. However, that would be the breaker that was not labeled. If one knocked the
wrong breaker, as stated before, it was Bledsoe’s fall back position that the ground check lug
would break first as one pulled out the cat head and that would cause the breaker to knock. Vol.
2, Tr. 122. He admitted that there will be arcing in such a circumstance but that it will be
contained inside of the breaker which is inside the power center. Vol. 2. Tr. 123-124, 129-130.

Lawson admitted that a breaker is guaranteed to work properly by the manufacturer for
only one break. Vol. 2, Tr. 132. Nowadays, he advised, breakers simply “will not stand up to
the industry. They just go bad . . .” Vol. 2, Tr. 133. Accordingly, the mine ends up changing out
breakers on a weekly, if not daily, basis. Vol. 2, Tr. 131. He then conceded that if one had such
a faulty breaker and one then pulled out a cat head under load, one “could possibly have an arc if
you pulled one out of a faulty breaker under load.” Vol. 2. Tr. 135.

While there was some conflict initially about the risk of arcing occurring, ultimately it
became clear to the Court that arcing could in fact occur if the breaker was defective. Breakers,
it turns out, are guaranteed to work once. The mine conceded that it’s practice is to replace its
breakers after one such use because of their lack of repetitive reliability. That is, the mine
conceded they can depend on them only once and then must be replaced. Although there was
much stated about the presence of the “E stop” button, that is not the subject of the standard.
While one of the Respondent’s questions assumed that the belt drive would first have been shut
down, the standard does not limit itself to such situations and the concern expressed by MSHA at
the hearing was over what could occur in the context of an emergency. Even then, Inspector
Sizemore stated, one would still need to pull (i.e. disconnect) the breaker first and that it is a rule
to disconnect the breaker before pulling a cat head. Tr. 33. The essential problem, Inspector
Sizemore related, in terms of his S&S marking, was that one has to knock, that is disconnect the
breaker, before one does anything like removing a cat head. As it may be anyone who arrives at
the power center in the event of an emergency to knock the breaker, that is, there is no
requirement that one must be an electrician to knock the breaker, a miner may not know which
breaker to knock. Tr. 39. Thus, one will not be able to know which breaker controls the cat head
for a particular piece of equipment.

Sizemore stated that this provision was written in blood,
and that because of a history of injuries related to the lack of being able to identify the correct
piece of equipment, the law requires that one arriving at the power center needs to be able to look
at the breaker and know exactly which one to knock and also to be able to look at the receptacle
and know that it is the correct one for the cat head. Tr. 44.

A fundamental problem with the Respondent’s argument that the violation is not S&S is
that it relies upon other problems not arising. For example, the Respondent has argued that the
way the Cat Head is connected to the receptacle makes it unlikely, as one removes it, that an arc
would occur. This ignores the lack of identification that is critical and basic; as Congress and
MSHA have stated in the Act and the safety standards, one has to know what one is
disconnecting from the power center.

Another critical aspect is that the breaker has to be effectively knocked. Identification of
correct breaker would seem to be essential to that. While there was another suggestion that if
one is wearing electrical gloves, something that could certainly not be assured each time a Cat
Head were to be removed, such gloves would offer absolute protection from shock. Inspector
Lewis informed otherwise, advising that when an arc occurs, one is putting molten metal in the
air. Molten metal is about 20 times the temperature it takes to melt steel. One near such an arc
can inhale this. One can also get flash burns from the arc on the face and areas of arms not
covered by gloves. Vol. 2 Tr. 81-82. As to the E Stop, an arc will occur if that is hit and it is
under load. Although it is not likely that the arc will go outside of the power box, it can occur.
Vol. 2 Tr. 49-50.

The Court concludes that the violation, which was virtually conceded, was S&S. The
discrete safety hazard, effectively identified by Congress through its inclusion of the provision, is
an electrical injury. In answering the critical question of whether the lack of identification on
underground circuit breakers or disconnecting switches contributes to the cause and effect of a
mine hazard, there is no doubt that it does and the testimony of Inspector Lewis supports that
conclusion. There was also a reasonable likelihood that any such injury would be a reasonably
serious one, a conclusion also supported by the testimony from Inspector Lewis informing about
such injuries.

Based on the foregoing, the Court finds that the violation was S&S and imposes a
civil penalty in the sum of $499.00.

Docket No. KENT 2011 1162

Citation No. 8352918.  

In this instance, Inspector Sizemore cited 30 C.F.R. § 75.514, which is entitled “Electrical
connections or splices; suitability,” and provides: “All electrical connections or splices in
conductors shall be mechanically and electrically efficient, and suitable connectors shall be used.
All electrical connections or splices in insulated wire shall be reinsulated at least to the same
degree of protection as the remainder of the wire.”

The Inspector’s statement in the Condition or Practice section of the Citation related that
“[t]he outer jacket of a splice observed in the 480 volt cable, providing power to the Co # 2
Fletcher [roof] bolter, observed in service on the 001 section,

was torn into exposing the
insulated leads that had only black electrical tape providing insulation.” Gov. Ex. 22. To abate
the condition, the splice was reinsulated. This correction was accomplished in 11 minutes.

The “gap,” that is to say, the area where the insulated leads were only covered by
electrical tape, was found by the Inspector found to be only 1/8th of an inch. It was found near
the take-up reel end of the cable, about 25 feet from that terminus and the testimony revealed that
it was likely that the splice was intentionally created with the intention that it would give way
there, if the cable were pulled beyond its length. The area where the gap was located on the cable
was such that it would be off the reel nearly every time the bolter is in use.

The testimony
informed that if a cable breaks at the reel itself, such a repair is time consuming. On the other
hand if the cable were to break at the point of the temporary splice, it could be quickly fixed.
However, the fact that this was apparently intentional does not mean that it was an appropriate or
safe thing to do. It was not, as such a connection is not “suitable.” Clearly the cable was not
reinsulated to at least the same degree of protection as the remainder of the wire.

Sizemore, elaborating upon his observations, recalled that the splice was torn loose and
that there was coal dust in the area where it had torn loose and the insulated leads were present.
Tr. 132. In concluding that it was S&S, he expressed that, once the outer insulation is gone,

a miner is then exposed to the insulated leads, but those insulated leads are not intended to be
exposed, nor are they to be handled. Tr. 134. The problem is that such insulated leads provide
insufficient protection as they are not designed to withstand the rigors of mining. Tr. 133.
Cables are not treated gently in the mining process; they are pulled around ribs, strewn down
entries and reeled back up quickly. In short, mining is rough on cables. Tr. 135. Though not
exposed to as much stress where a tear is close to the reel end, the cable would still be exposed to
some of the rigors of mining. Tr. 136. If a miner were to come into contact with a bare lead, and
remembering that only insulation remained on the leads, the 480 volt cable would cause burns or
even electrocution. Tr. 136. However, here, while not compliant with the cited standard, the
gap did have insulated leads intact and there was electrical tape also wrapped around those
insulated leads. Tr. 136.

Although there is no question that the standard was violated, the Court does not believe
that the circumstances warranted the S&S designation. Inspector Sizemore advised that he may
have had to bend the cable to find the break in the splice. There was testimony that, in the
normal course of events, the cable would not be bent in the fashion such as the Inspector did
here. While the discrete hazard is the risk of a shock or electrocution and clearly and if one were
to contact the bare wire, a reasonably serious injury would result, the evidence did not establish a
reasonable likelihood that an injury would result under continued normal mining operations.
Given the small gap, and that, while insufficient, the leads were covered by electrical tape and
further that the leads themselves still had insulation around them, the third element was not
established.

Accordingly, the Court finds that, the third Mathies element not having been established
on this record, the violation was not S&S.

Upon consideration of all the penalty factors, although the government sought a penalty of
$450.00, the Court imposes a penalty of $250.00.

Docket No. KENT 2011 1162

Citation No. 8352919.

In this instance Inspector Sizemore cited 30 C.F.R. § 75.517. That provision, which is
also a statutory provision, is entitled “Power wires and cables; insulation and protection,” and it
provides that: “Power wires and cables, except trolley wires, trolley feeder wires, and bare signal
wires, shall be insulated adequately and fully protected.”

The Inspector stated in the Condition or Practice section of the Citation that: “[t]wo areas
in the 480 volt cable providing power to the co # 1 Fletcher Roof Bolter observed in use on the
001 section were not reinsulated adequately or fully protected. One area of the cable [on] the
outer jacket had been torn away leaving an approx. 6 inch area of exposed insulated leads with
only [a] thin layer of electrical tape used to reinsulate. Another area of the cable had been cut
exposing [ ] an insulated lead.”

Gov. Ex. 23. The areas were not close to the reel end, nor were
they right up to the bolter, but rather between those two extremes. Tr. 25. Vol. 2. (See also,
Gov. Ex. 21, Inspector Sizemore’s notes, at page 10.) Thirteen minutes after the condition was
cited, it had been abated. It appeared to the Inspector as if one had cut a gap out of the cable.
While electrical tape had been wound around it, that too had been torn away. The second cut was
about 50 feet away from the other cut. In that situation, there was a nick in the cable about ½ of
an inch and one could see the insulated inner leads there.

MSHA’s Inspector Lewis and Bledsoe’s Mr. Lawson also testified about this citation. Mr. Lawson agreed that there were two areas that were cut, although he maintained that one
couldn’t see the leads. For one he agreed there was a “flap” that was some 6 inches long. If one
pulled back the flap, one could visualize the insulated leads, but Lawson did state that they were
intact. Lawson also conceded that the repairs were not proper in that tape was only used, instead
of the proper the correction through the use of a “cable wrap.” A cable wrap, as demonstrated
through demonstrative evidence at the hearing, is far more substantial than electric tape.

Because the Court finds that the third element of Mathies was not established by the
Secretary, the S&S finding of the Inspector cannot be sustained. However, given the fact that
there were two problematic areas along the same cable and that the mine operator was aware of
this problem as evidenced by the temporary and inadequate repairs to the cable, the negligence of
the operator must be deemed to be more than moderate. Mr. Lawson admitted that the repairs
were not done correctly.

When considered with the other statutory factors, the Court imposes a civil penalty
of $600.00 for this violation.

Docket No. KENT 2011 835

Citation No. 8352934.

For this Citation, Inspector Sizemore again invoked 30 C.F.R. § 75.517, applying to
power wires and cables and its requirement for insulation and protection. As just noted, it
provides that: "Power wires and cables, except trolley wires, trolley feeder wires, and bare signal
wires, shall be insulated adequately and fully protected." Here, the Inspector recorded in the
Condition or Practice section of the Citation that: “[t]he insulation was torn loose exposing bare
copper wires, on the cable providing power to the Twin Head Fletcher Roof Bolter observed
bolting roof on the 001 section.” Gov. Ex. 24. The roof bolter was in use at the time he
observed the bare wire.

Inspector Sizemore stated that the condition was reasonably likely to cause a fatality
because of the exposed copper wires. Vol. 2. Tr. 269. He expressed that it would not matter if
the bare wire was a ground or phase wire because the wire “will become energized in the event of
a fault, or in the insulation of the inner leads, that’s what it’s for, is to pick up current.” Vol. 2.
Tr. 269-270. Thus, exposure of the bare copper wires inside of a cable is enough. As the cable
is handled by miners on a daily basis, there would be exposure. Vol. 2. Tr. 270. The electric
cable was easy to see; the Inspector saw the problem immediately. Vol. 2. Tr. 273. Sizemore
did point out that his notes reflect that he saw bare copper wires and therefore more than one bare
copper wire was visualized by him. Vol. 2. Tr. 275-276. Gov. Ex. 7 at page 10.

When compared with the other electrical wire related violations in this proceeding, this
admitted violation is of a different order, because the wiring had deteriorated to the next, and
final level, as bare wire was exposed. Thus, the last insulation barrier for the electric wires was
gone.

This violation is clearly S&S. Obviously, the discrete safety hazard is the risk of shock,
including electrocution. Either event would result in a serious injury, with death being one of the
possible outcomes. With no barrier over the bare electric wire, the only other ingredient would
be contact by a miner or some conduit of contact with the wire and then to a miner. The
contribution of the absence of the insulation over the wire is plain.

The Court assesses a civil penalty of $1,657.00 for this serious violation.

Docket No. KENT 2011 1162

Citation No. 8352939.

Again, citing 30 C.F.R. § 75.517,

), Inspector Sizemore noted in the Condition or
Practice section of this Citation that “[a] splice provided in the 995 volt cable providing power to
the continuous miner on the 001 section was not fully protected or insulated. The splice had
pulled apart exposing the insulated leads.” Fifteen minutes after the citation was issued the cable
was repaired. Gov. Ex. 25.

Some distinctions from the other like violations are noted. Here, the cut was on a section
of the cable that was inby the last open crosscut, meaning that it was relatively close to the
continuous miner. However, here a splice was present, not simply electrical tape, but it had
pulled apart. There was testimony that this splice or “boot” had slipped off and therefore there
was no intentional disregard of the standard’s requirements. So too, while not a substitute for
compliance, the leads were insulated. No bare wire was exposed.

Mr. Oliver testified about this matter. He was with Inspector Sizemore at the time that
citation was issued. He stated that there was a splice on that cable but that the boot had slipped
off a little and one could see the shielded leads of the cable. Vol. 3 Tr. 97-103. He did agree that
the matter needed to be attended to right away. Vol. 3. Tr. 105.

Upon consideration of all the evidence, the Secretary failed to establish the third Mathies
element. Therefore, the violation was not S&S. A civil penalty of $200.00 is imposed.

Docket No. KENT 2011 835

Citation No. 8352924.

On January 20, 2011, Inspector Sizemore cited Bledsoe for a violation of 30 C.F.R. §
75.400. As noted supra, that section deals with the accumulation of combustible materials, and
requires that coal 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.

In this instance, the Citation, in the Condition or Practice section stated there were “[a]ccumulations of combustible material including; 1. Float coal dust, black in color was
observed deposited on the roof, ribs, and floor, was observed in an area beginning at the end of
the track and extending three cross cuts outby. 2. Empty paper boxes and rock dust bags, empty
open ended oil cans, discarded wooden pallets, and other combustible garbage was observed
deposited in an area beginning at the end of the track and extending two cross cuts up the primary
escapeway toward 001 section and extending three cross cuts outby the end of the track.” Gov.
Ex. 15.

Inspector Sizemore stated that the area he cited was where the mine would load and
unload supplies and that the entire section would travel through the area. Vol.2, Tr. 305-306.
The affected area began at the end of the track and extended three crosscuts outby. Tr. 307. The
amount of garbage he observed was estimated by him to be “knee high or better.” Tr. 308.
Thus, these were accumulations and they were of combustible material. This presented a danger
of fire. Electrical cables, for example, are in that area. Tr. 308. Damage to those cables and a
spark from that, would be enough to create the hazard. Tr. 309. Smoke inhalation or burns
would be the expected result. Tr. 310. The materials were found at the end of the track to the
001 section. Tr. 311. The Inspector stated that he did not view all such accumulations as S&S.

Tr. 313. His notes related to this Citation are in Ex. 4 at page 5. There, he wrote: “[the area has]
a diesel mantrip, rail runners and other equipment observed in use in the area, electric cables
observed in area and the garbage and float coal dust and the various ignition sources.” Tr. 314.
Sizemore acknowledged that he did not find anything awry with the condition of the mantrip or
the rail runner or with any other equipment. Tr. 316.  

Although Respondent’s Counsel challenged the Inspector’s view of whether it was
reasonably likely that a cable would become damaged, the Court believes this is not the proper
S&S inquiry. First, it is noted that the Inspector believed “that the cable [could become]
damaged, because you had equipment operating in that area, you had - - that’s where your scoop
is operating at that loads supplies on and off the width, and you have your diesel mantrip, your
rail runner, and you have all that equipment in there, so it could reasonably likely be damaged.”
Tr. 318-319.

In the Court’s view, apart from whether the cable would become damaged, the real focus
should be upon the conditions cited. The hazard from the accumulation of combustible material
is that such material could ignite. Having that material present provides an essential ingredient
for the matter to ripen into a full blown problem, needing only an ignition source. Such ignition
sources were identified by the Inspector. By the Respondent’s attempt to add a further element,
that is, that the cable or some other piece of equipment needs to be found to be defective, that
adds an event which is not needed for this S&S determination. Such an approach effectively
would negate the presence of the combustible material itself and, under such an approach, if
followed to its logical conclusion, even a defective cable would not be sufficient, unless one
could show that the defective cable could then ignite the combustibles. But the whole idea of an
S&S finding is to arrest matters before they reach such a critical state. That type of approach
essentially confuses imminent danger situations from findings where a violation moves matters,
in a meaningful way, towards the development of a hazard’s presence. By focusing on other
matters, and not the violation and the role that violation plays in contributing to the cause and
effect of a mine health or safety hazard, it muddies the S&S analysis.

The float coal dust and various combustible garbage observed by the Inspector had
accumulated in the active workings. This violated the standard and such material created a fire
hazard. Obviously, such conditions contributed to the cause and effect of the hazard. As this
was in an active area, by the nature of the equipment used there, that equipment’s operation
presented a source for an ignition of the combustibles. This meets the 3rd Mathies element as
there was a reasonable likelihood of an injury would result. Last, should such an ignition occur,
reasonably serious injuries could be expected to result.

The violation and the S&S characteristic having been established, the Court assesses a civil
penalty of $1,203.00.  

Docket No. KENT 2011 1162

Citation No. 8352940.  

On February 1, 2011, Inspector Sizemore issued this Citation, stating in the Condition or
Practice section of that Citation that: “[l]oose coal measuring from 1 inch to 6 inches in depth
was observed deposited along the mine floor on the track side of the # 8 belt conveyor, and into
the cross cuts on both sides along the entire length of the # 8 conveyor. On February 8, 2011,
the Inspector issued a “Subsequent Action 1a Continuation,” extending the abatement time to
February 14, 2011. That subsequent action was provided as the Inspector stated that “the
operator will require additional time to complete the clean up operations along the # 8 belt
conveyor.” The # 8 belt conveyor was cleaned and dusted, with the citation being terminated on
February 28, 2011. GX 16

and GX 7, page 26. Vol 2. Tr. 323.

This is the same # 8 conveyor cited by the Inspector in an earlier-discussed citation but it
involved a different day. Sizemore stated that the accumulations were “black in color and . . . spread out over the mine floor.” Tr. 325. He measured the depths recorded in his citation. At
least some amount of accumulation was present everywhere, with the 6 inch depth representing
the maximum amount he found.

Tr. 326. He determined that the accumulations had been there
for “quite a while.” Tr. 326. The accumulations were on the track side of the belt and the belt
examiner and those required to work on the belt would be on that side. A belt examiner would
travel this area once each working shift.

Viewing this, the Inspector “foresaw a mine fire because we had the accumulations of
loose coal, and we also had another citation along this belt line for the bottom belt . . . [and]
another citation that was issued for the belt running out of line and cutting [i.e. rubbing] into the
metal structure, providing an ignition source.” Vol 2. Tr. 327. Sizemore believed these
conditions had existed “[a]t least several shifts.” Vol 2 Tr. 327. In connection with these
findings, the Inspector checked the belt inspection books. Gov. Ex. 19, belt examiner records for
January 29 and 30, 2011. That report notes the mine adjusted a couple of the bottom rollers and
that the belt was tipping stand a little and pulled loose rib . .. at break 24 and working on
structure . . . [with] zero percent CH4.” Gov. Ex. 19. Similar information appeared for January
30th with the report noting “belt pulled loose rock at break 30, adjusted roller at break 17, belt
rubbing stand, working on structure, 0 percent CH4.” Vol 2 Tr. 330.     

Mr. Oliver also testified on this matter and the related matter of Gov. Exhibit 17.
Regarding the matter described in Exhibit 16, the loose coal ranging from one to six inches in
depth, along the belt line, he stated that the belt was clean underneath it and well rock dusted and
that they had cleaned under the belt with a “rake,” which is a low track with a blade on it. Vol. 3
Tr. 73. However, he conceded that the rake can’t reach all the way under and that there was
loose coal on the rib, though nothing around the rollers. He did not agree that the condition
continued along the entire length of the belt. Vol. 3 Tr. 73. The “worst part” of it, he stated, was
“the upper end” of the belt. Though he agreed that this needed to be cleaned up, he added that it
was up against the rib. This material was on the narrow, that is, the non-walkway side. Then
shown R’s Ex. R 4, a photograph, Oliver used this to show that the belt was clean underneath,
that there was no coal around rollers and that it was rock dusted. However, when asked if he
knew when that photo was taken, he answered, “No, not exactly.” Vol 3 Tr. 75. Oliver was then
shown Respondent’s Exhibit R 9, another photo of the # 8 belt line.

Here too, Mr. Oliver used
the photo to show that there was only a small amount of accumulations on the mine floor and that
the area was well rock dusted. However, he conceded that they did have to clean up the
accumulations, including those which were on the narrow side.

Oliver agreed that the rake device can only reach “so far” and then one must use a shovel
to complete the job. Further, he admitted that shoveling should have been done and that such
coal needs to be cleaned up. Vol. 3 Tr. 82-83. He also conceded that this problem “had been
there a while, yes.” Vol. 3 Tr. 84. While he stated that there was some rock dusting on top of the
accumulations, he acknowledged that new coal was evident on top of that rock dusting, as noted
by the little black dots in one of the Respondent’s photographs. However, Oliver did not
consider that to be “accumulations,” as they were not a “pile of coal.” Still, he then agreed that
even an inch of such coal is an “accumulation.” Vol 3 Tr. 85. He also agreed that the belt
examiner should be looking for such things and looking on both sides of the belt for that.

He also admitted that, as to the belt rubbing which was cited in the related Citation, noted
pre Exhibit 17, that one doesn’t want things to get hot from such rubbing and that, when rubbing
is occurring, things can get hot. Vol. 3 Tr. 87. Referred to Gov Ex 19, the belt examiner’s book,
for January 29th, for the # 8 belt, he agreed that a problem with that belt had been recorded as the
belt was tipping (i.e. rubbing) the stand, requiring some rollers which needed to be adjusted.
Vol. 3 Tr. 89.

The violation was established. The Court finds that the Inspector’s Citation accurately
described the conditions which existed. The hazard is the risk of mine fire. Certainly, coal
accumulations of this order contributes in a significant and substantial manner to that discrete
hazard, creating a reasonable likelihood that an injury will result. Were a fire to develop, there is
a reasonable likelihood that those exposed to the problem would sustain reasonably serious
injuries of at least lost workdays or restricted duty. 

This violation was S&S and is assessed at $1,026.00

Docket No. KENT 2011 1162

Citation No. 8352941.

On February 1, 2011, Inspector Sizemore also issued another Citation pertaining to the # 8 conveyor, stating that it was “not being maintained in proper alignment. The bottom belt was
observed cutting into the metal structure of the belt conveyor in several locations. Note; a
separate citation # 8352940 was issued for the accumulations of combustible material along the [# 8 conveyor]

providing a fuel source for this evident, friction type ignition source, and was a
factor in the S&S classification of this citation.” Gov. Ex. 17. Upon the belt being aligned, the
citation was terminated.

The cited standard, 30 CFR § 75.1731 is entitled, “Maintenance of belt conveyors and
belt conveyor entries.” The Inspector cited subsection (b) of that provision, which provides, “Conveyor belts must be properly aligned to prevent the moving belt from rubbing against the
structure or components.”

The Inspector saw the belt rubbing into the metal structure. As distinct from his other
citation wherein he referred to cutting, on this occasion Inspector Sizemore did literally mean
that the belt was cutting, not simply rubbing, into the bottom structure. He observed the belt
running at a high rate of speed. Vol 2. Tr. 334. For both Exhibits 16 and 17, Inspector Sizemore
identified the same hazard – the risk of a fire – as he noted the fuel source, the combustible
material, the loose coal and the ignition source of the belt cutting into the stand. Vol. 2. Tr. 335.
His concern was an initial ignition from the belt rubbing against the stand and from that the
concern that some of that material could drop off the structure onto the floor, with the risk that
the coal could be set on fire. Vol. 2. Tr. 336.

Inspector Sizemore affirmed that the violations he found, as reflected in Gov Ex. 16 and
17 were made worse because they existed together. Vol. 2, Tr. 346. That is, it would be
improper to consider the two violations in isolation because they are related. One dealt with
loose coal and the other with alignment but together they made each situation worse. Vol. 2. Tr.

346. By omitting problems in the books, the work force addressing the problems has inadequate
     information. The books alert them to things that need attention. It is that failure to so note
     problems that contributed to the cause and effect of a mine hazard. Vol 2 Tr. 348.

On cross-examination, he reiterated that the concern was the belt rubbing the structure.
He agreed that his concern was a heated up belt structure and the risk of hot pieces falling into
the accumulations, which accumulations he observed as present. Vol. 2. Tr. 359. He added that
as the belt was cutting into the stand, that wears off the fire resistance and creates a source of
heat. Vol. 2. Tr. 360. While the Inspector stated that one scenario, which he considered to be
reasonably likely, would be a belt stand heating up from the belt rubbing which could then come
down and come in contact with the accumulations. He added that there is combustible material
on the stands themselves. One example is float coal dust. Vol. 2 Tr. 363-365. The Inspector
agreed that he wrote this violation as S&S because of it being an ignition source for the
accumulations that he saw. Vol. 2 Tr. 367.

Mr. Oliver also testified about this matter. He acknowledged seeing the belt rubbing the
stand, admitting that this was present in two locations. Vol. 3 Tr. 80. He then shut down the
belt, made adjustments and restarted it. The belt was not hot. This belt is also wet, as water is
used to keep the float coal dust down. Vol. 3 Tr. 81. He saw no indication of any belt fraying.

The violation was established and was S&S. The hazard, plainly, is the risk of a mine
fire. It is obvious that such friction along the belt presented a measure of danger to safety,
contributing to the cause and effect of that hazard. A reasonable likelihood that an injury would
result was established. As noted, this violation must be considered along with Citation No.
8352941. However, the violation’s S&S quality was present even apart from the aggravating
conditions established in that other citation. Friction along a belt carrying coal presents an
inherently dangerous recipe, apart from the other fuel sources identified by the Inspector.

With any mine fire which could result from an ignition, there is a reasonable likelihood that a
reasonably serious injury would be a consequence.

Accordingly, the violation and its S&S nature having been established, a civil
penalty of $634.00 is assessed.

Docket No. KENT 2011 1162

Citation No. 8352945.

On February 1, 2011, Inspector Sizemore also issued a Citation for a violation of 30 C.F.R. § 75.362(b). Entitled, “On-shift examination,” the provision cited at that time
provided: “(b) During 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.”

This citation is related to Citation No. 8352941, Gov. Ex. 17, in that, after finding the
conditions identified for that Citation, Inspector Sizemore examined the belt book. This included
the relevant on-shift reports. They recorded problems with the bottom belt; that it was rubbing.
This is the same condition that the Inspector cited in this citation, Citation No. 8352945. The
basis for the Inspector’s citation was that the on-shift didn’t note the loose coal. Thus, only part
of the problems he found were listed in the on-shift. One is required to note accumulations of
combustible material in the books. Vol 2. Tr. 340-342. In marking it as S&S, the Inspector was
concerned about the risk of a fire, with the combustible material and the belt running out of
alignment.

On cross-examination, Inspector Sizemore stated that the onshift exam for the 31st was
insufficient. Vol 2. Tr. 369. In this regard, he cited section 75.362(b). Counsel for the
Respondent then had the Inspector agree that a certified person did perform such an exam for the

8 belt. Vol. 2. Tr. 370. The Inspector paused after his initial agreement, adding that the

problem was the failure to record all the problems that should have been noted. Vol. 2. Tr. 372.
At that point, the Court stepped in, noting that the case law is clear that the standard requires that
an adequate exam be performed. The Court noted that any other construction would produce
ludicrous results, as a mine could pick a sightless person and assign that individual to perform
the examination for hazardous conditions along a belt line. Vol. 2. Tr. 373. Counsel for the
Respondent then suggested that a different standard is to be cited for recording of hazards:
section 75.363. The Court then noted that the Secretary can also move to amend the standard
cited as section 75.363, should they elect to do so. Vol. 2. Tr. 375. The government then moved
to amend the violation to cite section 75.363. Vol 2 Tr. 379.

For this kerfuffle, the Court finds that both 75.362(b) and 75.363 apply to the situation
recorded by Inspector Sizemore for this Citation. The former applies on the basis of the
reasoning articulated by the Court at the hearing. Section 75.363, while it places more emphasis
on the duty to record hazards found by expressly requiring a record be made of them, is an
alternative source to address the implicit requirement of 75.362(b). Accordingly, while both
could be utilized, the Court accepts the Secretary’s motion to amend the standard violated.

Regarding the Inspector’s citing the rubbing of the stands for January 31st, Sizemore
agreed that this rubbing was recorded in the book. The Inspector’s stance was that such a hazard,
belt rubbing, is not simply to be recorded, but must be corrected. Vol. 2 Tr. 377. As the other
condition noted by the Inspector in this Citation was not noted, the violation was established.

By failing to note the conditions identified in Exhibit 16, the standard was violated. The
hazard in this instance was the risk of a mine fire. It is plain that the failure to record such
problems undercuts the prophylactic intent of the standard and therefore such failure contributes
to the cause and effect of that mine hazard’s development, creating a reasonable likelihood that
an injury will result from it. As noted supra, should a mine fire ensue, there is a reasonable
likelihood that a reasonably serious injury would result in lost workdays, restricted duty, or
worse.  

Accordingly, the violation and the S&S designation are affirmed. A civil penalty of $540.00 is assessed.

SUMMARY

The Court has upheld each of the violations and, except for three citations, finds that the
remaining, as per the discussion above, were each significant and substantial, as that term is
applied under the Mine Act. All penalties were based upon due consideration of the statutory
criteria. The “R 17,” the assessed violation history report, was not used in a manner to increase
or decrease the penalties imposed. All violations were deemed to have been abated in good faith.

Docket No. KENT 2011 1162

Citation No. 8405309 $499.00

Docket No. KENT 2012 34

Citation No. 8352926 $1,700.00

Docket No. KENT 2012 1162

Citation No. 8352931 $499.00

Docket No. KENT 2011 835

Citation No. 8352936 $800.00

Docket No. KENT 2011 1162

Citation No. 8352932 $499.00

Docket No. KENT 2011 1162

Citation No. 8352943 $499.00

Docket No. KENT 2011 1162

Citation No. 8352920 $1,203.00

Docket No. KENT 2011 1162

Citation No. 8352921 $634.00

Docket No. KENT 2011 1162 

Citation No. 8352922 $634.00

Docket No. KENT 2011 1162

Citation No. 8352917 $499.00

Docket No. KENT 2011 1162

Citation No. 8352918 $250.00

Docket No. KENT 2011 1162

Citation No. 8352919. $600.00

Docket No. KENT 2011 835

Citation No. 8352934. $1,657.00

Docket No. KENT 2011 1162

Citation No. 8352939 $200.00

Docket No. KENT 2011 835

Citation No. 8352924 $1,203.00  

Docket No. KENT 2011 1162

Citation No. 8352940 $1,026.00

Docket No. KENT 2011 1162

Citation No. 8352941 $634.00

Docket No. KENT 2011 1162

Citation No. 8352945 $540.00

ORDER

Based on the foregoing discussion and findings, the Respondents are ORDERED
to pay the assessed civil penalties for the violations, as set forth above, within thirty (30)
days.

/s/ William B. Moran

William B. Moran

Administrative Law Judge

Distribution: (E-mail and Certified Mail)

Mary Beth Zamer, Esq., Mary Sue Taylor, Esq., U.S. Department of Labor, Office of the
Solicitor, 618 Church Street, Suite 230, Nashville, Tennessee 37219-2456

Marco M. Rajkovich, Esq., John Williams, Esq., Williams, Kilpatrick & True, PLLC, Lexington,
Kentucky 40513