Martin County Coal Corporation v. Secretary of Labor

Read the official release (fmshrc.gov)

Plain-English summary

MSHA cited Martin County Coal for unsupported roof and rib conditions along three conveyor belts and for inadequate on-shift examinations at its Voyager No. 7 underground mine. Judge Jerold Feldman credited the issuing inspectors enough to affirm the three roof-and-rib violations as significant and substantial, but found their general descriptions did not prove the extent, obviousness, or aggravated conduct needed for unwarrantable failure. A regular MSHA inspector had examined the same areas shortly beforehand without finding the cited hazards, and the inspection team had not offered the operator an opportunity to accompany it and identify the disputed conditions. The judge modified the three enforcement actions to section 104(a) citations with moderate negligence and $4,000 penalties each. He vacated the inadequate-examination order, approved $4,850 in partial settlements, and ordered a total payment of $16,850.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a) and 75.362(b)
• Outcome: Three S&S roof-and-rib violations were modified to section 104(a) citations, the examination order was vacated, and total penalties were set at $16,850.
• Key point: Conflicting MSHA inspections, vague descriptions of the conditions, and prejudice from denied walkaround participation can defeat unwarrantable failure even when the underlying safety violations remain.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH
REVIEW COMMISSION

OFFICE OF
ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, DC
20004-1710

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

April 29, 2014

MARTIN
COUNTY COAL

CORPORATION,

Contestant

v.

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH

ADMINISTRATION
(MSHA),

Respondent

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

MARTIN
COUNTY COAL

CORPORATION,

Respondent

CONTEST
PROCEEDINGS

Docket
No. KENT 2012-615-R

Citation
No. 8265796; 02/01/2012

Docket
No. KENT 2012-616-R

Order
No. 8265798; 02/01/2012

Docket
No. KENT 2012-617-R

Order
No. 8265804; 02/01/2012

Docket
No. KENT 2012-618-R

Order
No. 8265805; 02/01/2012

CIVIL
PENALTY PROCEEDINGS

Docket
No. KENT 2012-1321

A.C.
No. 15-19193-292715

Docket
No. KENT 2012-1403

A.C.
No. 15-19193-294671

Mine:
Voyager No. 7

DECISION

Appearances:               Matt
S. Shepherd, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of the Petitioner;

Jeffrey
K. Phillips, Esq., Steptoe & Johnson PLLC, Lexington, Kentucky, on behalf
of the Respondent.

Before:                        Judge
Feldman

These
consolidated contest and civil penalty proceedings are before me based upon petitions
for assessment of civil penalty filed by the Secretary of Labor (“the
Secretary”) under section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 815(d), against the Respondent, Martin County Coal
Corporation (“MCC”). These matters concern the nature

and
extent of cited violative roof and rib conditions observed by the issuing
inspectors on February 1, 2012, which the record reflects had not
materially changed during the weeks

preceding
the inspection. A hearing was held on October 30 and October 31, 2013, in
Prestonburg, Kentucky. The parties’ briefs have been considered in the
disposition of these matters.

Specifically,
these proceedings concern four contested citations and orders (“citations”) issued
on February 1, 2012, alleging violations of mandatory safety standards
contained in

Part
75 of the Secretary’s regulations governing underground coal mines. 30 C.F.R.
§§ 75 et seq. The Secretary alleges the subject violations are
attributable to unwarrantable failures.[1]
Docket No. KENT 2012-1321 includes 104(d)(1) Citation No. 8265796, for which
the Secretary proposes a civil penalty of $14,000.00, and 104(d)(1) Order Nos.
8265798 and 8265804, for which the Secretary proposes civil penalties of
$16,400.00 each. These citations allege adverse roof and rib conditions in
Voyager No. 7 Mine’s No. 4 Entry along the No. 1, 2 and 3 belt lines,
respectively, in violation of section 75.202(a). Section 75.202(a) 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.

30 C.F.R. § 75.202(a).

104(d)(1) Order No. 8265805 in Docket
No. KENT 2012-1403 alleges that, by failing to record and correct the cited adverse
roof and rib conditions, the Respondent failed to conduct adequate on-shift
examinations in violation of section 75.362(b). The Secretary proposes a civil
penalty of $3,224.00 for Order No. 8265805. Section 75.362(b) provides, in
pertinent part:

During each shift that coal is produced, a certified person shall
examine for hazardous conditions and violations of the mandatory health or
safety standards referenced in paragraph (a)(3) of this section along each belt
conveyor haulageway where a belt conveyor is operated.

30 C.F.R. § 75.362(b).

Thus,
the Secretary seeks to impose $50,024.00 for the four alleged unwarrantable
citations at issue. In addition, the captioned civil penalty matters each
contain one additional citation, for which the parties have reached an
agreement. With regard to 104(a) Citation No. 8251922 in Docket No. KENT
2012-1321, the settlement terms include reducing the degree of negligence
attributable to the Respondent, from moderate to low, and reducing the civil
penalty from $1,500.00 to $850.00. With regard to Order No. 8265806 in Docket
No. KENT 2012-1403, the settlement terms include modifying the 104(d) order to
a 104(a) citation to reflect that the violative condition was not the result of
an unwarrantable failure, and reducing the civil penalty from $9,122.00 to
$4,000.00. The parties’ partial settlement agreement, which was approved on the
record, imposes a civil penalty of $4,850.00 for the two citations addressed
therein. (Tr. 8-10).

I.                  
Statement
of the Case    

As discussed below, I will defer to the
opinion of the issuing mine inspectors that the cited roof and rib conditions
constituted violations of section 75.202(a). Given the hazardous nature of
adverse roof and rib conditions, the violations were properly designated as
significant and substantial (“S&S”).[2]
However, the unwarrantable failure designations for the three subject
violations cannot be affirmed for several reasons. As an initial matter, the
cited rib and roof conditions lack specificity with respect to the nature and
extent of the alleged violations. As discussed below, the citations contain
general allegations of cracks ranging from one to twelve inches from the edge
of ribs, without specifying whether the majority of the cracks were closer to
one inch or to twelve inches from the edge. Thus, the obviousness and extent of
the danger posed by the cited rib conditions cannot be determined.

The Secretary relies on duration and
obviousness to prove an unwarrantable failure, asserting that the alleged
hazardous rib conditions existed and went unattended for at least

one
month. However, the alleged violative conditions cited on February 1, 2012, by
issuing inspectors who were not familiar with the conditions in the Voyager No.
7 Mine, were not supported by the opinion of the regular quarterly MSHA
Inspector who had observed the rib conditions in the same areas of the No. 4
Entry between January 17 and January 23, 2012.

The record also precludes a finding of
aggravated conduct because MCC was prejudiced by virtue of the fact that it was
not given an opportunity to accompany the inspectors. This is particularly
important because the lack of MCC’s participation prevented it from having the
inspectors identify, in MCC’s presence, the nature, extent and location of each
alleged hazardous rib condition, facts that are not adequately set forth in the
general language of the citations. (Gov. Ex. A, B, C); See, SPC
Investments, LLC, 31 FMSHRC 821, 827-28 (Aug. 2009).

Finally, the inadequate on-shift
citation shall be vacated, given the inadequate description of the hazardous
conditions that are alleged to have been overlooked by MCC’s on-shift examiners.
Moreover, as discussed below, a determination of inadequate on-shift
examinations would require a finding that several regular EO-1 MSHA inspections
of the same areas that occurred shortly before February 1, 2012, were also
inadequate, as they did not disclose any adverse roof or rib conditions.

II.               
Findings
of Fact

The Voyager No. 7
Mine is an underground coal mine located in Martin County, Kentucky. The mine
was acquired from Massey Energy Company by Alpha Natural Resources in June
2011. (Tr. 407). Though now idle, On February 1, 2012, when the relevant
citations were issued, the mine had one working section. (Tr. 489, 491). The
cited roof and rib conditions along the No. 1, 2 and 3 belts were located in
the No. 4 Entry. The three conveyor belts totaled approximately 1½ miles in
length. (Tr. 117, 126).  The belts were approximately eight feet from the ribs
on the walkway side, and two feet from the ribs on the off-walkway
(maintenance) side. (Tr. 67-68). The ribs separating the entries and crosscuts
along the belts were approximately fifty to sixty feet in length, and six feet
high. (Tr. 94, 202). At the time of the February 1, 2012, inspection, there
were two productions shifts at the Voyager No. 7 Mine. The day shift was from
6:00 a.m. to 3:00 p.m., and the evening shift was from 3:00 p.m. to 12:00 a.m. (Tr.
56-57, 23).

Regular
quarterly inspections of MCC’s Voyager No. 7 underground mine, designated by
MSHA as EO-1 inspections, were conducted by MSHA Inspectors assigned to the
Martin County field office. Since 2010, MSHA Martin County Inspector Robert Wise
had been assigned to conduct the inspections at the Voyager No. 7 Mine. (Tr. 405-06).
Wise testified that it is common for MSHA Inspectors to be on-site on a regular
basis for the entire three month quarter in relatively large mines such as
Voyager No. 7. (Tr. 472). Wise normally conducted his inspections during the
day shift, at which time he provided an opportunity for MCC representatives to
accompany him. (Gov. Ex. G).

During January 2012, the month prior to
the issuance of the subject citations, Wise was on-site conducting inspections
on twelve separate days. (Tr. 414). As part of his routine EO-1 inspection
duties, Wise inspected the roof and rib conditions along the No. 1, 2 and 3
belts. Wise testified that his quarterly inspection was on schedule, and that
he had not requested any assistance in completing his inspection assignment. (Tr.
414, 434). Consequently, he neither expected nor requested a supplemental EO-1
inspection by inspectors assigned to an MSHA office other than Martin County. 

Wise inspected the No. 3 Belt line and
its roof and rib conditions on January 17, 2012, at which time he was
accompanied by Kenny Hunt, MCC’s superintendent of Voyager No. 7. (Tr. 418,
425). Wise inspected the rib and roof conditions along the No. 2 belt line on
January 18, 2012, at which time he was accompanied by Foreman Timothy Stratton.
(Tr. 424-25). Wise examined the roof and rib conditions along the No. 1 Belt
line on January 23, 2012, once again accompanied by Kenny Hunt. (Tr. 429). In
each case, Wise failed to observe any violative roof or rib conditions along
any of the belts. [3]
(Tr. 421-22, 425-27, 430). Wise testified that opinions concerning whether the
nature and extent of a cracked rib creates a hazard that requires remedial
action are frequently subjective. (Tr. 441-42).

Wise also routinely reviewed the belt
examination books as part of his inspection duties. (Tr. 432). Wise testified
that he did not find the on-shift examinations inadequate, as he did not find
any evidence of unreported hazardous roof or rib conditions. (Tr. 433). In this
regard, the on-shift record book reflected that some actions had been taken to
correct adverse roof or rib conditions in the weeks preceding the February 1,
2012, inspection. (Tr. 59-61, 241-44; Gov. Ex. M at 1, 3, 6).

On
January 31, 2012, MSHA received an anonymous complaint alleging inadequate
ventilation at the Voyager No. 7 Mine. (Tr. 52). Section 103(g)(1) of the Act authorizes

MSHA
to investigate safety related complaints received from miners. 30 U.S.C. §
813(g)(1). The complaint was referred to MSHA’s Pikeville, Kentucky office for
investigation, designated by MSHA as an EO-3 investigation. (Tr. 65, 179). Normally
an EO-3 related inspection requires two or three inspectors. (Tr. 180, 183). However,
on February 1, 2012, six inspectors and a special investigator were dispatched from
the Pikeville Office to the Voyager No. 7 Mine. (Tr. 180, 183).

Special Investigator Venita Branham’s
assignment was to take control of the surface phones when she arrived at the
mine to prevent any underground communication which would have provided advance
notice of the inspection. (Tr. 356-58, 364). Although Wise testified that he
did not require any assistance in fulfilling his EO-1 responsibilities, at some
point between departing their office and arriving at the mine site, the
Pikeville personnel decided to divide into two groups, thus morphing their
initial EO-3 inspection into an additional EO-1 inspection.

(Tr.
64-66, 414). Inspectors Robert McIntosh, Billy Buchanan and Silas Adkins were
to investigate the EO-3 ventilation complaint, while Inspectors Lester Keith
Preece, Benjamin Adams, and James Reynolds[4]
were to conduct a supplemental regular quarterly EO-1 inspection of the belts
and surrounding areas.[5]
(Tr. 51, 64, 318-19).

The
inspection party arrived at the Voyager No. 7 Mine at approximately 7:30 p.m.,
at which time Branham took control of the Mine Office phone. (Tr. 51, 353-354).
Branham informed Shannon Rowe in the Mine Office of the arrival of MSHA
Inspectors, and ordered Rowe not to call underground. (Tr. 357-58). Inspectors
McIntosh, Buchanan, Adkins, Preece, Adams and Reynolds proceeded underground. McIntosh,
Buchanan and Adkins investigated the ventilation complaint and determined that
it lacked merit. (Tr. 178).  

Once underground, Preece and Adams proceeded
to perform a regular EO-1 inspection by traversing the No. 4 Entry along the No.
1, 2 and 3 belts. (Tr. 66, 272). Preece noted

that
inspectors rarely perform regular EO-1 inspections without being accompanied by
a representative of the mine operator, estimating that only one to three
percent of inspections

are
unaccompanied. (Tr. 185-86). Preece testified that, before entering the mine,
MCC was prevented from arranging for any company representatives to accompany
either the EO-1 or the EO-3 inspection parties while underground. (Tr. 186). Upon
arriving at the No. 1 Belt, Preece further testified that he met Brandon
McKinney, foreman of the rehab crew. (Tr. 258-59). Although Preece remembered
talking to McKinney underground, he could not recall what was said. (Tr. 259). However,
Preece testified that he did not explicitly inquire as to whether an MCC representative
wanted to accompany him during his EO-1 inspection of the belts. (Tr. 186-88). Preece
speculated that McKinney would have declined to participate in the inspections,
as McKinney was the only foreman supervising miners underground. (Tr. 259).

Similarly, with regard to whether an MCC
representative was provided with an opportunity to participate in the
inspection, Adams testified:

Q:        Did you at any time ask anyone
from the Voyager Mine if they wished to accompany you?

A:        I did not. No.

Q:        Did you hear anyone offer any individual from the Voyager Mine the opportunity
to travel with you?

A:        I didn’t hear anyone. No.

Q:        To travel with Keith Preece?

A:        No.

Q:        To travel with James Reynolds?

A:        No.

(Tr.
321-22).

Preece
and Adams proceeded to traverse along the No. 1, 2 and 3 belts, paying
particular attention to the surrounding roof and rib conditions. Preece and
Adams testified that they observed a total of approximately fifty cracks,
approximately 1-1½ inches wide, in the ribs surrounding the No. 1, 2 and 3
belts. The inspectors testified that the approximately one inch wide cracks
were anywhere from one to twelve inches from the pillar’s edge, extending from
the roof down to either the floor or center of the pillar. (Tr. 72-74, 101,
107-08, 273, 279-80, 290-91). Specifically, Preece testified that they observed
approximately 26 cracks along the No. 1 Belt, 16 along the No. 2 Belt, and 7
along the No. 3 belt. (Tr. 115). They opined that the cracks they
observed created the risk that slices of the pillars ranging from one to twelve
inches were at risk of separating and falling. (Tr. 77, 273). Significantly,
neither the testimony nor the citations, as quoted below, adequately quantify
how many of the cited rib cracks posed a significant hazard, i.e., differentiating
those that were approximately one inch from the edge of the rib from those that
were approximately twelve inches from the edge.

In addition to his observation of rib
cracks along the No. 1 belt, Preece also observed two loose roof bolts, and a
wide entry where roof bolts were 54-72 inches (rather than the required

48
inches) from the rib. (Tr. 96, 78). However, Preece testified that the wide area
may have been cut wide, rather than a widening as a result of a rib fall, as
there was no roof material observed on the mine floor. (Tr. 78, 234). Along
Belt No. 3, Preece and Adams observed fallen material in a crosscut, and noted
that the bolt above was approximately 74 inches from the rib. This indicated
that a crack in the rib had separated (a “rib roll”) allowing 26 inches of
material to break off and fall. (Tr. 106-07, 282-83).

The specifics of the citations are as
follows.

Citation No. 8265796 (Belt No. 1),
issued by Inspector Preece, alleges:

The roof, face, and ribs of areas where
miners work or travel is not being supported or otherwise controlled to prevent
falls of the roof and ribs along the co. No. 1 belt conveyor on the off walk
way side. The ribs are broken and are hanging loose from 1 inch up to 12
inches in the following locations. Between crosscuts 4-5,

12-13, 15-16, 18-19, 20-24, 26-27,
38-42, 46-51, 53-58, 60-63. Between crosscut 15-16 the entry is 23 feet 8
inches in width. Between crosscut 17-19 there [are] 2 permanent roof supports
(roof bolts) that are hanging from the mine roof from 4 inches up to 8 inches. On-shift
examinations are conducted each shift on a daily basis to recognize and correct
hazardous conditions by a certified foreman. These hazardous conditions are
obvious to the most casual observer. These hazards have not been recognized or
recorded and no additional support has been installed in the cited areas. This
is an unwarrantable failure to comply with a mandatory standard.

Standard 75.202(a) was cited 19 times in
two years at mine 1519193 (19 to the operator, 0 to a contractor).

(Gov.
Ex. A) (emphasis added).

Order
No. 8265798 (Belt No. 2), issued by Inspector Preece, alleges:

The roof, face, and ribs of areas where
miners work or travel is not being supported or otherwise controlled to prevent
falls of the roof and r[i]bs along the co. No. 2 belt conveyor on the off walk
way side. The ribs are broke[n] and hanging loose from 1 inch up to 12
inches in the following locations. Between crosscut 3-4 (offside), 4-5 (walkway
side), and crosscut 6-20 (offside). On-shift examinations are conducted
each shift on a daily basis to recognize and correct hazardous conditions by a
certified foreman. These hazardous conditions are obvious to the most casual
observer. These hazards have not been recognized or recorded and no additional
supports ha[ve] been installed in these areas. This is an unwarrantable failure
to comply with a mandatory standard.

Standard 75.202(a) was cited 20 times in
two years at mine 1519193 (20 to the operator, 0 to a contractor).

(Gov.
Ex. B) (emphasis added).

Order
No. 8265804 (Belt No. 3), issued by Inspector Adams, alleges:

The roof, face and ribs of areas where
miners work or travel are not being supported or otherwise controlled to
prevent falls of the roof and ribs along the company No. 3 belt conveyor. The
crosscut between No. 3 take-up and the track entry has the outby [ ] rib rolled
out leaving wide bolts measuring from 52 [inches] to 74 [inches] from the rib
through this area, exposing the loose and broken ribs. Loose hanging ribs
were observed from [the] No. 1 to the No. 4 crosscut on the offside of the
belt. Crosscuts No. 6 through No. 7 have loose hanging ribs on both sides. Between
crosscuts No. 11 and No. 12 loose hanging ribs were observed on the offside. Between
No. 16 and No. 17 loose ribs were observed on the walkway side. Onshift
examinations are conducted each shift on a daily basis to recognize and correct
hazardous conditions by a certified foreman. These hazardous conditions are
obvious to the most casual observer. These hazards have not been recognized or
recorded and no additional support ha[s] been installed in the cited areas. This
is an unwarrantable failure to comply with a mandatory standard.

Standard 75.202(a) was cited 21 times in
two years at mine 1519193 (21 to the operator, 0 to a contractor).

(Gov.
Ex. C) (emphasis added).

Preece
and Adams testified these conditions were reasonably likely to result in
injuries caused by falling rock, noting that separated ribs are subject to vibrations
from the belt line, contact with mine equipment, and gravitational forces. (Tr.
118-121, 295, 299-300). They testified that miners frequently work along the
belts to perform maintenance and conduct belt inspections. (Tr. 117, 278). They
also concluded that any injury would have been serious, based on a mine
industry history of fatal roof fall and rib roll accidents. (Tr. 118, 296). Consequently,
the three cited violative conditions were designated as S&S. Preece testified
that, with respect to Belt No. 1, even if no loose ribs had been found, the
wide entry and loose roof bolts would have been enough for an S&S
designation. (Tr. 96-99). Preece and Adams also attributed their citations to
unwarrantable failures. They concluded the negligence attributable to MCC was sufficient
to support unwarrantable failures, primarily due to the approximately fifty
cracked and loose ribs that they observed. (Tr. 130-31, 297).

At
trial, consistent with his deposition testimony and his notes, Preece testified
that the alleged hazardous conditions along the No. 1, 2 and 3 Belts existed
for at least one month.

(Tr.
167-173). Apparently aware that Wise had not observed these hazards during his
EO-1 inspections, Preece modified his opinion by testifying that the cited
conditions only existed for multiple shifts. (Tr. 131). It is not credible that
the majority of the approximately fifty cited rib conditions in the No. 4 Entry
were only several shifts in duration. In any event, regardless

of
their exact duration, Preece concluded the failure of belt examiners to note
these multiple conditions constituted inadequate on-shift examinations. Consequently,
Preece issued Order

No.
8265805 alleging a violation of section 75.362(b). (Tr. 131-32, 142-43). Preece
designated the violation as S&S and attributable to an unwarrantable
failure. Order No. 8265805 states:

An adequate onshift examinations is
[sic] not being conducted on the company No. 1, 2, 3 and 4 conveyor belts as
stated in citations and order numbers, 8269893, 8269894, 8269895, 8265794,
8265795, 8265796, 8265797, 8265798, 8265804, 8265799, 8265800, 8265801, and
8265803. Hazardous conditions existed along these conveyor belts for more than
one shift and the examiners failed to recognize, record and correct these
obvious hazardous conditions. The preshift/onshift examiners are the front line
of defense in hazard recognition and correcting these conditions. The examiner
had previously traveled these cited areas with none of the hazards recorded in
the exam books. In failing to conduct an adequate onshift exam, miners are put
at risk to work or travel in these areas. This is an unwarrantable failure to
comply with a mandatory standard. The operator engaged in more than ordinary
negligence in failing to identify these hazards.

All examiners shall receive additional
training on hazard recognition on regulations 75.362 and 75.363 as for the
termination of this 104(d)(1) order.

(Gov.
Ex. D).[6]

Wise could not adequately explain how
the Pikeville inspectors observed so many hazardous rib conditions given that
he failed to observe any significant roof or rib hazards during his inspections
of the No. 4 Entry only two weeks before.[7]
In this regard, on cross-examination, Wise testified:

Q:           Okay. And you’ve seen the –
You’ve seen the enforcement actions that [Preece and Adams] wrote?

A:           Yes.

Q:           It was pretty drastic,
wasn’t it?

A:           Yes.

Q:           You never saw the
conditions that were claimed to exist in these violations written by the
Pikeville MSHA people, did you?

A:           I didn’t see anything when
I went through there.

Q:           You
were very surprised and shocked when you heard about these enforcement actions
that were lodged against Voyager, weren’t you?

A:           Yes.

Q:           Now, just backtracking from
February 1, 20—

COURT:            Let me ask you, Mr.
Wise. Why were you surprised and shocked at the citations?

A:           Because I had traveled
those belts and I hadn’t seen the same conditions that they did.

(Tr.
435-36).

Both Preece and Wise noted that
inspectors can reasonably disagree on whether roof or rib conditions caused by
sloughage, a common occurrence in underground mines, pose hazards that require corrective
action. (Tr. 147, 448). Having failed to note during his inspections the
conditions cited by Preece and Adams, Wise conceded that he did not believe the
cited conditions were obvious. (Tr. 443-44).

In
order to view the cited areas in preparation for abatement, Hunt, Stratton and
Safety Representative Joey Hammonds walked the belts on February 2, 2012, the
morning after the citations were issued. (Tr. 519-20, 566, 585). Although they testified
that they observed some cracked ribs, they maintained there were significantly
fewer than fifty, and that the cracks they observed posed little, if any,
hazard. (Tr. 542-44, 571-72, 589-91). In this regard, MCC’s witnesses testified
that it was very difficult to scale down the loose material, indicating that it
would not have fallen on its own. (Tr. 521-23, 541, 569, 589-590).

Wise testified that when he arrived at
the mine on the morning of February 3, 2012, a number of the cited conditions
were still being abated. (Tr. 396-400). Wise explained that every cited
condition must be addressed in order to be considered abated, and that his oversight
of the abatement did not necessarily reflect his opinion regarding the
conditions alleged in

the
citations. (Tr. 456-58). Consequently, the fact that Wise abated the citations is
of little evidentiary significance with respect to obviousness and the degree
of negligence attributable

to
MCC.

III.            
Further
Findings and Conclusions

1.     
Evidentiary
Framework

The Secretary has the burden of proving
each element of a citation by a preponderance of the evidence. Garden Creek
Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989).

In
articulating the preponderance of the evidence standard, the Commission has
stated: “[t]he burden of showing something by a ‘preponderance of the
evidence,’ the most common standard in the civil law, simply requires the trier
of fact ‘to believe that the existence of a fact is more probable than its
nonexistence.’” Rag Cumberland Resources Corp., 22 FMSHRC 1066, 1070
(Sept. 2000) (citations omitted).  

As an initial
matter, Preece’s testimony and notes reflect that the alleged hazardous
conditions along the No. 1, 2 and 3 Belts existed for at least one month. (Tr.
167-173; Gov.

Ex. E at 4, 5,
7). Thus, the evidence reflects that the rib and roof conditions
observed by Preece and Adams on February 1, 2012, were substantially similar to
those observed by Wise during

his regular EO-1
inspections on January 17, January 18, and January 23, 2012. Resolution of
whether the Secretary has satisfied his burden of proof with respect to the
fact of the violation, S&S, and unwarrantable failure requires reconciling
the observations of Preece and Adams with Wise’s regular EO-1 inspections of
the same areas of the mine, as well as the testimony of MCC personnel who
participated in the abatement. While Wise’s failure to confirm the observations
of Preece and Adams does not estop the Secretary from demonstrating the fact of
a violation,

the Commission
has noted that prior inconsistent MSHA actions may be a mitigating factor in
determining negligence. Mach Mining, LLC, 34 FMSHRC 1769, 1774 (Aug.
2012) (citing

King Knob Coal
Co.,
3 FMSHRC 1417, 1422 (June 1981)).

2.      Rib and Roof
Condition Citations

As the majority of the cited conditions
in Citation No. 8265796 and Order Nos. 8265798 8265804 involve similar roof and
rib conditions, these citations will be addressed collectively.[8]

a.       Fact of the
Violation

As previously noted, the majority of the
cited conditions observed by Inspectors Preece and Adams involve alleged
compromised ribs. The inspectors testified that, as a general matter, they
observed a total of approximately fifty loose ribs that were the result of cracks
measuring approximately one inch wide, extending either from the floor or
center of the six foot pillar

to
the roof, that were anywhere from 1-12 inches from the edge of the pillar. (Tr.
107-08, 115, 290-91). Consequently, the Inspectors opined that slabs of rib,
from one to twelve inches thick, were at risk of separating from the pillar and
falling. (Tr. 77, 273). Preece also observed two loose roof bolts and a wide
entry along Belt No. 1. (Tr. 96, 78). In addition, the inspectors testified
that they observed a rib roll with fallen material resulting in a wide entry in
a crosscut along Belt No. 3. (Tr. 106-07, 282-83).

In their citations, both Preece and
Adams characterized the cited roof and rib hazards as “hazardous conditions
[that] are obvious to the most casual observer.” (Gov. Exs. A, B, C).

The
rub is that the record reflects that the cited conditions apparently may not
have been obvious to a casual observer. In this regard, the Secretary’s witness,
Inspector Wise, conceded that he “hadn’t seen the same conditions that [Preece
and Adams] did” when Wise travelled the three belt entries in the period
preceding the February 1, 2012, inspection. (Tr. 436).

Consistent
with Wise’s testimony, Hunt, Stratton and Hammonds, who observed the subject
roof and rib conditions on the morning of February 2, 2012, testified that
there were significantly fewer than fifty discernible cracks, and that the
cracks they observed were a result of sloughage that was not hazardous. (Tr.
542-44, 571-72, 589-91). They summarized their participation in the abatement
by testifying that much of the cited loose material would not have fallen on
its own because it was difficult to scale. (Tr. 521-23, 541, 569, 589-590).

The
cited mandatory standard in section 75.202(a) requires roof and rib areas where
persons work or travel to be adequately supported or controlled to protect
persons from hazards related to falling material. Significant testimony fairly
detracts from the weight of evidence supporting the Secretary’s assertion of
obvious and extensive rib hazards. However, it is reasonable to conclude that at
least some of the rib cracks required scaling or supplemental support to ensure
that the surrounding area was adequately controlled as required by section
75.202(a). In this regard, the Commission has held that the opinion of an MSHA
inspector that a condition is hazardous is entitled to great weight. See, Harlan
Cumberland Coal Co., 20 FMSHRC 1275, 1278 (Dec. 1998); see also, Buck
Creek Coal, Inc., 52 F.3d 133, 135-36 (7th Cir. 1995). Consequently, the
evidence when viewed in its entirety is sufficient to support the fact of the
violations of section 75.202(a), even if the number of hazardous conditions
that required remedial action was significantly less than that alleged.

b.      Significant and
Substantial

As a general proposition, a violation is
properly designated as S&S in nature if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood that

the
hazard contributed to by the violation will result in an injury or an illness
of a reasonably serious nature. Cement
Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1
(Jan. 1984), the Commission explained:

In order to establish that a violation
of a mandatory safety standard is [S&S] under National Gypsum, the
Secretary of Labor must prove:

(1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard - that is, a measure of
danger to safety - contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to [by the violation] will result in an injury; and
(4) a reasonable likelihood that the injury in question will be of a reasonably
serious nature.

Id. at 3-4; see also Austin Power
Inc., v. Sec'y of Labor, 861
F.2d 99, 103-04 (5th Cir.
1988),
aff'g 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). With respect to the third element of Mathies, an S&S finding
requires a determination that the violation contributes significantly and
substantially to the cause and effect of a hazard. U.S. Steel Mining Co.,
Inc.

6
FMSHRC 1866, 1868 (Aug. 1984). Resolution of whether a particular violation of
a mandatory standard is S&S in nature must be made assuming continued
normal mining operations. U.S.
Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). Thus, consideration
must be given to both the time frame that a violative condition existed prior
to the issuance

of
a citation, and the time that it would have existed if normal mining operations
had continued. Bellefonte Lime Co., 20 FMSHRC 1250 (Nov. 1998); Halfway, Inc., 8 FMSHRC 8, 12
(Jan. 1986). In the final analysis, the essence of an S&S violation is
whether it is reasonably likely that the hazard contributed to by the violation
will result in an event in which there are serious or fatal injuries. Bellefonte, 20 FMSHRC at 1254-55.

With
respect to the Mathies criteria, it is obvious that the first, second
and fourth criteria are satisfied, in that a violation of a mandatory standard
has occurred that creates a discrete safety hazard to mine personnel in the
belt entries, and that such mine personnel are reasonably likely to sustain
serious injuries by their exposure to the hazard created. The remaining third Mathies
criterion requires an evaluation of the likelihood of a roof fall
injury-causing accident.

I credit Preece and Adams’ testimony
that both belt examiners and maintenance personnel regularly travel and work along
conveyor belts. (Tr. 116-17, 278). Consequently, they are routinely exposed to
hazardous roof and rib conditions that are not adequately controlled. Compromised
roof and rib conditions are, by nature, hazardous and unpredictable. Adequate
rib and roof control is fundamental to creating and maintaining a safe mining
environment. Having credited Preece and Adams’ observations that at least some
cracks required remedial action, it is reasonably likely, in the context of
continued mining operations, that MCC belt examiners and belt maintenance
personnel who continue to be exposed to unattended hazardous roof and rib
conditions will be struck by falling material that will cause serious or fatal
injury. Consequently, the citations concerning adverse roof and rib conditions are
properly designated as S&S. The violations are serious in gravity in view
of their potential for serious injury.

c.       Unwarrantable
Failure

The elements of
unwarrantable conduct are well settled. The Commission has determined that an
unwarrantable failure is aggravated conduct constituting more than ordinary
negligence. Emery Mining
Corp.,
9 FMSHRC 1997 (Dec. 1987). Unwarrantable failure is
characterized by such conduct as “reckless disregard,” “intentional
misconduct,” “indifference,” or a “serious lack of reasonable care.” Id.
at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,
193-194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 135-36 (approving
the Commission's unwarrantable failure test).

The Commission examines
various factors in determining whether a violation is unwarrantable, including
the extent of a violative condition, the length of time that it has existed,
whether the violation is obvious, whether the violation poses a high degree of
danger, whether the operator has been placed on notice that greater efforts are
necessary for compliance, and the operator's compliance efforts made prior to
the issuance of the citation or order. Enlow Fork Mining Co., 19
FMSHRC 5, 11-12, 17 (Jan. 1997); Mullins
& Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC
1258, 1261 (Aug. 1992); Quinland
Coals, Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC
1596, 1603 (July 1984). Repeated similar violations may be relevant to an
unwarrantable failure determination to the extent that they serve to put an
operator on notice that greater efforts are necessary for compliance with a
standard.[9]
Peabody, 14 FMSHRC at 1263-64.

MSHA inspectors must be encouraged to issue
citations when they believe miners may be exposed to violative hazardous
conditions. Consequently, I have deferred to the broad discretion of Preece and
Adams with respect to the fact of the violations. However, the question of
unwarrantable failure is an entirely different matter. A prime example of an
unwarrantable failure is an obvious and/or extensive violation that poses a
high degree of danger that has existed for a considerable period of time. None
of these elements can be discerned from the general language of Preece and
Adams’ citations. In this regard, with respect to obviousness, extensiveness
and the hazard posed, the citations do not reflect what proportion of the cited
rib cracks were only one inch from the edge of the rib, or precisely on which
ribs such cracks were located. Fundamental fairness, if not due process,
requires more.

Moreover, the boilerplate language in the citations
that the cited conditions were “obvious to the most casual observer” does not
make it so. Facts matter. In other words,

it is the evidentiary facts that render a condition obvious. The
general descriptions in the subject citations do not satisfy the Secretary’s
burden of demonstrating that the conditions were obvious

to the casual observer, particularly in this instance, where
they were not obvious to Inspector Wise. Significantly, at trial Wise, who was
familiar with the general conditions in the mine, indicated that he was
shocked at the number of conditions cited by Preece and Adams, and he conceded
that the enforcement actions in the citations appeared to be drastic. (Tr. 435-36).
The inconsistent findings of Wise may be considered as a mitigating factor in
determining negligence. Mach Mining, LLC, 34 FMSHRC at 1774.

Wise directed abatement of the citations
by requiring scaling and supplemental support. (Tr. 396-400). However, he
testified that the scaling and additional support was a required response to
abate the citations, and that it did not reflect his view as to whether
violations had occurred. (Tr. 456-58).

With
respect to the importance of a mine operator’s participation in inspections, the
statutory scheme of the Mine Act recognizes that mine operators must play an
active role in creating and maintaining a safe mining environment. 30 U.S.C. §
801(e). To achieve this goal, section 103(f) of the Mine Act requires,
in relevant part, that “[s]ubject to regulations issued by the Secretary, a
representative of the operator . . . shall be given an opportunity to accompany
the Secretary or his authorized representative during the physical inspection
of any coal or other mine . . . for the purpose of aiding such inspection. . .
.” 30 U.S.C. § 813(f). This statutory language places an affirmative duty on an
MSHA inspector to provide a mine operator with the opportunity to accompany him
during an inspection.

The fundamental importance of mine
operators accompanying inspectors is evidenced by Preece’s testimony that mine
operators accompany inspectors approximately 97 percent of the time. (Tr.
185-86). Moreover, it is standard operating procedure for inspectors to provide
the opportunity for accompaniment, as reflected in Inspector Wise’s notes that
require documenting, at the beginning of each day’s inspection, whether or not
the mine operator declined to accompany the inspector. (Gov. Ex. G at 1, 10, 17,
21, 27, 33, 38, 42, 48, 50, 53, 58, 63, 70). Satisfaction of this affirmative
obligation to provide mine operators with an opportunity to participate cannot
be accomplished by simply shifting to the mine operator the responsibility to
seek permission to “tag along” during an MSHA inspection. While I am cognizant
that MSHA is not required to provide advance notice of inspections, the
statutory provisions of section 103(f) must be adhered to once the presence of
an inspector is known because he has arrived underground.

The
Commission addressed the issue of a mine inspector’s failure to provide an opportunity
for a mine operator’s accompaniment in SCP
Investments, LLC, 31 FMSHRC 821 (August
2009). Although the Commission concluded that the failure to provide an
opportunity as provided in section 103(f) is not jurisdictional, the Commission
stated that “under section 103(f) and our case law, the right of the operator
to accompany the inspector during an inspection is an important right” which
may not be curtailed without legal remedy. Id. at 825, 834. The
Commission further noted that evidence may be excluded when walk-around rights
are violated, if the mine operator can demonstrate prejudice. Id. at 835
(citations omitted).  

The prejudice to MCC in this
case is self-evident. As noted by Commissioners Young and Cohen, the failure to
include operators during an inspection precludes the resolution of factual
disputes that otherwise could be resolved on-site. Id. at 828. The mine
operator’s participation is particularly crucial in this case, where the inspectors
could have directed MCC’s attention with respect to the precise extent and
location of each crack, and the hazards that the inspectors believed required
remedial action. Thus, the prejudice caused by MSHA’s failure to provide MCC
with an opportunity to participate in the inspection provides an additional
basis for deleting the unwarrantable failures. 

In summary, while the nature and extent of the
conditions observed by Preece and Adams, which were not confirmed by Wise, may
have been attributable to an unwarrantable failure, the evidence, when viewed
in its entirety, is insufficient to reach such a conclusion. Significantly, the
Secretary does not contend that Wise’s inspections were perfunctory in nature. Rather,
the evidence reflects that the cited conditions are attributable to no more
than a moderate degree of negligence. Accordingly, the unwarrantable
designations in Citation
No. 8265796 and Order Nos. 8265798 and 8265804 shall be deleted. As a result,
104(1) Citation No. 8265796 and 104(d)(1) Order Nos. 8265798 and 8265804 shall
be modified to 104(a) citations.

d.      Civil Penalties

The Commission outlined the parameters
of its responsibility for assessing civil penalties in Douglas R. Rushford
Trucking, 22 FMSHRC 598 (May 2000). The Commission stated:

The principles governing the
Commission’s authority to assess civil penalties de novo for violations of the
Mine Act are well established. Section 110(i) of the Mine Act delegates to the
Commission “authority to assess all civil penalties provided in [the] Act.” 30
U.S.C. § 820(i). The Act delegates the duty of proposing penalties to the
Secretary. 30 U.S.C. § § 815(a) and 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the
Commission to assess the penalty. 29 C.F.R. §§ 2700.28 and 2700.44. The Act
requires that, “[i]n assessing civil monetary penalties, the Commission [ALJ]
shall consider” six statutory penalty criteria:

[1] the operator’s history of previous
violations, [2] the appropriateness of such penalty to the size of the business
of the operator charged, [3] whether the operator was negligent, [4] the effect
of the operator’s ability to continue in business, [5] the gravity of the
violations, and [6] the demonstrated good faith of the person charged in
attempting to achieve rapid compliance after notification of a violation.

22
FMSHRC at 600 (citing 30 U.S.C. § 820(i)).

In keeping with this statutory
requirement, the Commission has held that “findings of fact on the statutory
penalty criteria must be made” by its judges. Sellersburg Stone Co., 5
FMSHRC 287, 292 (Mar. 1983). Once findings on the statutory criteria have been
made, a judge’s penalty assessment for a particular violation is an exercise of
discretion, which is bounded by proper consideration for the statutory criteria
and the deterrent purposes of the Act. Id. at 294; Cantera Green, 22
FMSHRC 616, 620 (May 2000). The Commission has noted that the exercise of its de
novo authority to assess civil penalties does not require “that equal weight
must be assigned to each of the penalty assessment criteria.” Thunder Basin
Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).

While
the Voyager No. 7 Mine apparently is idle (Tr. 489), MCC does not contend that
the proposed penalties in this matter are disproportionate to its size. The
cited rib and roof conditions were serious in gravity, but are attributable to
no more than a moderate degree of negligence. The record reflects the cited
violations were abated in good faith and in a timely manner. It is true that the
history of violations during the previous two years, as noted in the citations,
would ordinarily be an aggravating factor, despite the change in mine ownership.
However, in this case, the violation history is less significant as the
Secretary has failed to demonstrate the violations were obvious, given the
conflicting testimony by the Secretary’s witnesses.

In view of the reduction in negligence,
and the paucity of evidence with regard to the specific nature, extent and
location of the cited conditions, a civil penalty of $4,000.00 shall be
assessed for each of these 104(a) citations.

3.     
On-Shift
Examination Citation

As a threshold matter, in resolving
whether a violation of a regulation requiring an examination has occurred, the
proper inquiry is whether the subject examination was adequately performed. See,
e.g., RAG Cumberland Resources LP, 26 FMSHRC 639, 647 (Aug.
2004) (holding that although mandatory standards may not explicitly
require adequate or effective measures by mine operators, such a requirement is
implicit in the standard's underlying purpose), aff'd 171 Fed.
Appx. 852 (D.C. Cir. 2005). Thus, 104(d)(1) Order No. 8265805 alleges, in
essence, a series of inadequate on-shift examinations in violation of the
mandatory standard in section 75.362(b).

In resolving the adequacy of the
on-shift examinations, it is helpful to apply the Commission’s reasonably
prudent person test. The Commission has previously articulated the test to
determine whether there was a reasonable basis for believing that roof and ribs
needed additional support. The Commission stated:

[T]he adequacy of particular roof support
or other control must

be measured against the test of whether
the support or control

is what a reasonably prudent person, familiar
with the mining

industry and the protective purposes of
the standard,
would have

provided in order to meet the protection
intended by the standard.

Canon
Coal Co.,
9 FMSHRC 667, 668, (Apr. 1987) (emphasis added). See also, Ideal Cement Co.,
12 FMSHRC 2409, 2416 (Nov. 1990).

Obviously,
Inspector Wise, who (unlike the issuing inspectors) was familiar with the
conditions in the No. 7 Mine, satisfies the Commission’s criteria of a reasonably
prudent person who understands the protective purposes of the roof control
provisions in section 75.202(a). Yet, Inspector Wise did not find any
unreported conditions requiring remedial roof or rib control during his
relevant inspections of the ribs along the No. 1, 2 and 3 Belts.

Moreover, there is no evidence that the
on-shift examinations were conducted in a perfunctory manner. Significantly,
the on-shift examination book entries proffered into evidence by the Secretary
reflect that there were rib conditions requiring remedial action which had been
noted by the on-shift examiner during the week preceding the February 1, 2012,
inspection. Specifically, MCC examiner Derrick Wright noted on January 23,
2012, that timbers were added at breaks 61 and 58 along Belt No. 1; he noted on
January 25, 2012, that roof bolt plates were secured at break 6 along Belt No.
3; and he noted on January 30, 2012, that timbers were added at breaks 3 and 4
along Belt No. 3. (Gov. Ex. M at 1, 3, 6). Although Inspector Wise and the
on-shift examiners may have missed a relatively small proportion of the one
inch cracks cited by Preece and Adams, the dispositive question is whether the
on-shift examinations were adequate based on a reasonably prudent examiner test.

Finally, although 104(d)(1) Order No.
8265805 references violative conditions in addition to the subject rib
conditions in this matter, the Secretary failed to present any evidence of
these conditions as the basis for demonstrating the on-shift examinations were
inadequate. In fact, Preece admitted that the “fifty locations” where Preece
and Adams cited rib cracks were the primary basis for issuing Order No.
8265805. (Tr. 148). Thus, on balance, Order No. 8265805 must be vacated as the
Secretary has failed to satisfy his burden of demonstrating that the
examinations were inadequate. 

As
a final note, this Commission protects miners from adverse actions taken by
mine operators in response to a miner’s protected activities. Protected
activity includes testimony in Mine Act proceedings. Federal whistleblower
statutes hold the government to the same standard. See 5 U.S.C. § 2302(f)(2) (2013). This
litigation has caused MSHA inspectors to provide conflicting testimony with
regard to their inspection findings. Consequently, Inspector Wise was required
to testify under difficult circumstances. While I recognize retaliation may be
extremely unlikely, it would be naïve to believe it never occurs. The Secretary
should ensure that Wise does not experience any reprisals as a result of his
participation in these proceedings.

ORDER

Consistent
with this Decision, IT IS ORDERED that 104(d)(1) Citation No. 8265796 and
104(d)(1) Order Nos. 8265798 and 8265804 in Docket No. KENT 2012-1321 ARE
MODIFIED to 104(a) citations to reflect that the cited conditions were not
the result of an unwarrantable failure. IT IS FURTHER ORDERED that the
degree of negligence attributable to Martin County Coal Corporation for each of
cited violations in these citations is reduced from high to moderate. Accordingly,
IT IS ORDERED that a civil penalty of $4,000.00 each shall be assessed
for Citation Nos. 8265796, 8265798 and 8265804, constituting a total civil
penalty of $12,000.00.

IT IS FURTHER ORDERED that 104(d)(1) Order
No. 8265805 in Docket No. KENT 2012-1403 IS VACATED.

IT IS FURTHER ORDERED, consistent
with the parties’ partial settlement agreement, that Martin County Coal
Corporation shall pay a total civil penalty of $4,850.00, consisting of $850.00
for 104(a) Citation No. 8251922 in Docket No. KENT 2012-1321, and $4,000.00 for
104(a) Citation No. 8265806 in Docket No. KENT 2012-1403.  

Accordingly, IT IS ORDERED that
Martin County Coal Corporation pay, within 40 days of the date of this decision,
a total civil penalty of $16,850.00 in satisfaction of the citations in the
captioned dockets, consisting of a civil penalty of $12,850.00 for Docket No.
KENT 2012-1321, and $4,000.00 for Docket No. KENT 2012-1403.

Upon receipt of timely payment, the captioned
contest and civil penalty proceedings ARE DISMISSED.

/s/
Jerold Feldman  

Jerold
Feldman

Administrative
Law Judge

Distribution:

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

Jeffrey
Phillips, Steptoe & Johnson PLLC, 2525 Harrodsburg Road, Suite 300,
Lexington, KY 40504

/tmw

[1] As a general
matter, an unwarrantable failure occurs when a violation is attributable to
aggravated conduct rather than ordinary negligence. Emery Mining, 9 FMSHRC
1997, 2001 (Dec. 1987).

[2]
Generally
speaking, a violation is S&S if it is reasonably likely that a hazard
contributed to

by
the violation will result in an accident causing serious injury. Cement
Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981).

[3]
Wise’s
testimony that he did not observe any hazardous roof or rib conditions is
significant,

as
the relevant testimony and notes of the issuing inspectors reflect that the cited
roof and rib conditions existed for at least a month. (Tr. 167-173; Gov. Ex. E
at 4, 5, 7).

[4]
Although
Reynolds participated in the EO-1 inspection, he did not testify in this
matter,

or
issue any of the citations that are the subjects of these proceedings. It is unclear
from the record whether Reynolds walked the No. 1, 2 and 3 belts with Preece
and Adams, or whether

he
proceeded to inspect nearby areas independently.

[5]
Preece
conceded that, to his knowledge, this was the first time an inspection conducted
in response to a complaint and a regular quarterly inspection occurred
simultaneously. (Tr. 181).

[6]
Order No.
8265805 refers to citations that were issued by Inspector Reynolds, in mine
areas other than along Belt Nos. 1, 2 and 3. Reynolds did not testify in these
proceedings. At trial, MCC’s objection to the admission of these citations into
evidence was sustained for lack of foundation. Moreover, MCC did not have an
opportunity to depose Reynolds, as he was not identified as a witness of the
Secretary during pre-trial submissions. (Tr. 133-36). In any event, Preece testified
that the cited cracked rib conditions along the No. 1, 2 and 3 Belts were the
primary basis for alleging the on-shift examinations were inadequate. (Tr. 137-40,
148).

[7]
For
example, Wise tried to explain the disparity between his observations and those
of Preece and Adams by stating that he had inspected the roof and ribs while
walking on the opposite side of the belts than that traversed by the Pikeville
inspectors. (Tr. 436, 445-47). However, on cross-examination, Wise admitted
that he walked on the same side as Preece along Belt No. 1 (the longest of the
three with the greatest number of cited conditions). (Tr. 436, 445-47).  

[8]
The
parties also jointly addressed all three citations in their briefs. Sec’y Br.
at 8; Resp. Br. at 29.

[9] While not
dispositive, it is noteworthy that the history of violations in these matters
includes prior violations committed by Massey Energy Company, a previous
unrelated corporate operator of the Voyager No. 7 Mine.