Secretary of Labor v. Rockhouse Energy Mining

Plain-English summary

A miner was injured by falling rib material while Rockhouse Energy was rehabilitating an idle section before resuming production. Judge L. Zane Gill found that the inspector exaggerated widespread rib and brow conditions after the accident and that neutral and mine witnesses had not observed a foreseeable hazard. Because Rockhouse conceded a strict-liability violation of 30 C.F.R. § 75.202(a), the judge affirmed that citation but changed it to non-S&S, unlikely injury, and no negligence, reducing the specially assessed $42,000 penalty to $100. He vacated the separate preshift-examination citation under 30 C.F.R. § 75.360(a)(1) because the examiner had identified and removed loose rib and draw rock, and the Secretary did not prove that other obvious hazards existed during the examination.

Decision snapshot

• Cited standards: 30 C.F.R. §§ 75.202(a) and 75.360(a)(1)
• Outcome: The rib-control citation was affirmed as non-S&S with no negligence and a $100 penalty; the preshift-examination citation was vacated.
• Key point: A serious accident does not by itself prove that a foreseeable hazardous condition existed or that a prior examination was inadequate.

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

SECRETARY
OF LABOR

MINE
SAFETY AND HEALTH   

ADMINISTRATION
(MSHA),

Petitioner

v.

ROCKHOUSE
ENERGY MINING,

Respondent

CIVIL
PENALTY PROCEEDING

Docket
No. KENT 2012-0891

A.C.
No. 15-17651-284668

Mine:
Mine # 1

DECISION AND
ORDER

Appearances:               Brian
Mauk, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, TN,
for Petitioner;

Jeffrey
K. Phillips, Esq., Steptoe & Johnson, PLLC, Lexington, KY, for Respondent.

Before:                                    Judge
L. Zane Gill

This proceeding under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) (“Mine Act” or
“Act”), involves two section 104(a) citations, 30 U.S.C. § 814(a), issued by
the Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Rockhouse
Energy Mining (“Rockhouse” or “Respondent”) at its Mine # 1 mine. The parties presented
testimony on July 16, 2013 in Pikeville, Kentucky.

For Citation No. 8260352:

·        
Rockhouse
violated § 75.202(a) of the Mine Act.

·        
Rockhouse
was not negligent.

·        
The
injury was unlikely to result in lost workdays or restricted duty.

·        
The
citation was not properly designated as significant and substantial.

·        
I
assess a penalty in the amount of $100.00.

For Citation No. 8260354:

·        
Rockhouse
did not violate § 75.360(a)(1) of the Mine Act.

·        
The
citation is vacated.

Stipulations

The parties submitted the following
stipulations at the hearing: (Tr. 15:21 – 16:18)

1.      Respondent is
subject to the Federal Mine and Safety Health Act of 1977 and to the
jurisdiction of the Federal Mine Safety and Health Review Commission;

2.      The presiding
administrative law judge has the authority to hear this case and issue a
decision;

3.      Respondent has
an effect on commerce within the meaning of Section 4 of the Federal Mine and
Safety Health Act of 1977;

4.      Respondent
operates Mine #1, Mine ID No. 15-17651;

5.      The citations in
this docket are complete, authentic, and admissible;

6.      The inspector
notes for the citations identified in paragraph 5 are complete, authentic, and
admissible;

7.      Mine #1 produced
605,866 tons of coal in 2010; 598,636 tons of coal in 2011; and 283,483 tons of
coal in 2012;

8.      The penalty will
not affect Respondent's ability to remain in business;

9.      The Respondent
abated the citations involved herein in a timely manner and in good faith; and

10.  The parties have
also stipulated to the authenticity of each parties' exhibits.

Basic
Legal Principals

Significant and
Substantial                         

One of the citations in dispute and
discussed below has been designated by the Secretary as significant and
substantial (“S&S”). A violation is properly designated S&S “if, based
upon the particular facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an injury or illness
of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC
822, 825 (Apr. 1981). The question of whether a particular violation is S&S
must be based on the particular facts surrounding the violation. Texasgulf,
Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9
FMSHRC 2007 (Dec. 1987). S&S enhanced enforcement is applicable only to
violations of mandatory health and safety standards. Cyprus Emerald Res.
Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999). The Secretary
bears the burden of proving all elements of a citation by a preponderance of
the evidence. In re: Contests of Respirable Dust Sample Alteration
Citations: Keystone Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d
151 F.3d 1096 (D.C. Cir. 1998); Jim Walter Resources, Inc., 30
FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s burden is to
prove the violations and related allegations, e.g., gravity and negligence, by
a preponderance of the evidence.”)

In Mathies Coal Co., the
Commission established the standard for determining whether a violation was
S&S:

In order to establish that a violation
of a mandatory safety standard is significant and substantial under National
Gypsum, the Secretary of Labor must prove: (1) the underlying violation of a
mandatory safety standard; (2) a discrete safety hazard – that is, a measure of
danger to safety – contributed to by the violation; (3) a reasonable likelihood
that the hazard contributed to will result in an injury; and (4) a reasonable
likelihood that the injury in question will be of a reasonably serious nature.

6
FMSHRC 1, 3-4 (Jan. 1984).

The third element of the Mathies
test presents the most difficulty when determining whether a violation is
S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug.
1985), the Commission provided additional guidance: [T]he third element of the Mathies
formula “requires that the Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there is an injury.” (citing
U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 (Aug. 1984)). The
Secretary, however, “need not prove a reasonable likelihood that the violation
itself will cause injury.” Cumberland Coal Res., 33 FMSHRC 2357, 2365
(Oct. 2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32
FMSHRC 1257, 1281 (Oct. 2010)). Further, the Commission has found that “the
absence of an injury-producing event when a cited practice has occurred does
not preclude a determination of S&S.” Id. (citing Elk
Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand
& Gravel, Inc., 18 FMSHRC 853, 857 (June 1996)). This evaluation is also
made in consideration of the length of time that the violative condition
existed prior to the citation and the time it would have existed if normal
mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905; U.S.
Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 1984).

Negligence

Negligence is relevant in cases under
the Mine Act, but since the Act creates a strict liability enforcement model,[1]
negligence is not an essential part of the calculus to determine whether an
operator is at fault. When an MSHA inspector observes conditions that create mine
hazards or otherwise fall short of the Act’s requirements, a citation is required,
irrespective of fault.[2]
Negligence is, however, central to the assessment of civil penalties and to the
evaluation of the enhanced enforcement elements of S&S, unwarrantable
failure, and flagrant violation.

Negligence “is conduct, either by
commission or omission, which falls below a standard of care established under
the Mine Act to protect miners against the risks of harm.” 30 C.F.R.
§ 100.3(d). “A mine operator is required […] to take steps necessary to
correct or prevent hazardous conditions or practices.” Id. “MSHA
considers mitigating circumstances which may include, but are not limited to,
actions taken by the operator to prevent or correct hazardous conditions or
practices.” Id. Reckless negligence is present when “[t]he operator
displayed conduct which exhibits the absence of the slightest degree of care.” Id.
High negligence is when “[t]he operator knew or should have known of the
violative condition or practice, and there are no mitigating circumstances.” Id.
Moderate negligence is when “[t]he operator knew or should have known of
the violative condition or practice, but there are mitigating circumstances.” Id.
 Low negligence is when “[t]he operator knew or should have known of the
violative condition or practice, but there are considerable mitigating
circumstances.” Id. No negligence is when “[t]he operator exercised
diligence and could not have known of the violative condition or practice.” Id.

The Commission has provided guidance for
making the negligence determination in A. H. Smith Stone Co.,
stating that:

Each mandatory standard thus carries
with it an accompanying duty of care to avoid violations of the standard, and
an operator’s failure to satisfy the appropriate duty can lead to a finding of
negligence... In this type of case, we look to such considerations as the
foreseeability of the miner’s conduct, the risks involved, and the operator’s
supervising, training, and disciplining of its employees to prevent violations
of the standard in issue.

5
FMSHRC 13, 15 (Jan. 1983) (citations omitted).

Mitigation is something the operator
does affirmatively, with knowledge of the potential hazard being mitigated,
that tends to reduce the likelihood of an injury to a miner. This includes
actions taken by the operator to prevent or correct hazardous conditions.

Gravity

The
gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. §
820(i), “is often viewed in terms of the seriousness of the violation.” Consolidation
Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996) (citing Sellersburg Stone
Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th
Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (Apr.
1987)). The seriousness of a violation can be examined by looking at the
importance of the standard which was violated and the operator’s conduct with
respect to that standard, in the context of the Mine Act’s purpose of limiting
violations and protecting the safety and health of miners. See Harlan
Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ Fauver). The
gravity analysis focuses on factors such as the likelihood of an injury, the
severity of an injury, and the number of miners potentially injured. The
Commission has recognized that the likelihood of injury is to be made assuming
continued normal mining operations without abatement of the violation. U.S.
Steel Mining Co., 7 FMSHRC at 1130.

Penalty

The
principles governing the authority of Commission administrative law judges 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 and its
judges the “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), 820(a). Thus, when an operator notifies the
Secretary that it intends to challenge a penalty, the Secretary petitions the
Commission to assess said penalty. 29 C.F.R. § 2700.28.

Under Section 110(i)
of the Mine Act, the Commission is to consider the following when assessing a
civil penalty: (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 on the
operator's ability to continue in business; (5) the gravity of the violation;
and (6) the demonstrated good faith in abatement of the violative condition. 30
U.S.C § 820(i). Thus, the Commission
alone is responsible for assessing final penalties. See Sellersburg
Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the
Commission is bound by the Secretary's proposed penalties … we find no basis
upon which to conclude that [MSHA's Part 100 penalty regulations] also govern
the Commission.”); See American Coal Co., 35 FMSHRC 1774, 1819 (July
2013)(ALJ Zielinski).

The Commission has repeatedly held that
substantial deviations from the Secretary's proposed assessments must be
adequately explained using the section 110(i) criteria. E.g., Sellersburg
Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May
2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations
omitted). A judge need not make exhaustive findings but must provide an
adequate explanation of how the findings contributed to his or her penalty
assessments. Cantera Green, 22 FMSHRC at 622.

Although all of the statutory penalty
criteria must be considered, they need not be assigned equal weight. Thunder
Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Generally speaking, the
magnitude of the gravity of a violation and the degree of operator negligence
are important factors, especially for more serious violations for which
substantial penalties may be imposed. Musser Engineering, 32 FMSHRC
at 1289 (judge justified in relying on utmost gravity and gross negligence in
imposing substantial penalty); Spartan Mining Co., 30 FMSHRC at 725
(appropriate for judge to raise a penalty significantly based upon findings of
extreme gravity and unwarrantable failure); Lopke Quarries, Inc.,
23 FMSHRC 705, 713 (July 2001) (judge did not abuse discretion by weighing the
factors of negligence and gravity more heavily than the other four statutory
criteria). For example, violations involving “extreme gravity” and/or “gross
negligence,” or, as stated in the former section of 105(a), “an extraordinarily
high degree of negligence or gravity, or other unique aggravating
circumstances,” may dictate higher penalty assessments. See 30 C.F.R.
Part 100 Final Rule, 72 Fed. Reg. 13592-01, 13,621.

In
addition, Commission ALJs are obligated to explain any substantial divergence
between a penalty imposed and that proposed by the Secretary. As explained
in Sellersburg Stone Co., 5 FMSHRC at 293:

When … it is determined that penalties
are appropriate which substantially diverge from those originally proposed, it
behooves that Commission and its judges to provide a sufficient explanation of
the bases underlying the penalties assessed by the Commission. If a sufficient
explanation for the divergence is not provided, the credibility of the
administrative scheme providing for the increase or lowering of penalties after
contest may be jeopardized by an appearance of arbitrariness.

Special
Assessment

Through
notice and comment rulemaking, the Secretary promulgated regulations specifying
the “Criteria and Procedures for Proposed Assessment of Civil Penalties.” 30
C.F.R. Part 100. Those regulations provide two options for determining the
amount of a civil penalty to be assessed by the Secretary: regular assessment
and special assessment. 30 C.F.R. §§ 100.3, 100.5(a), (b). Penalties
for the vast majority of violations are determined through the “regular
assessment” process whereby penalty points are assigned pursuant to criteria
and tables that reflect the factors specified in sections 105(b) and 110(i) of
the Act. 30 C.F.R. §100.3.

The
regulations also allow MSHA to bypass the regular assessment process if it
determines that conditions warrant a special assessment. 30 C.F.R.
§100.5(a), (b). The regulations do not further explain what conditions may
warrant a special assessment.[3]
Nor do they identify how the amount of a special assessment will be determined,
other than to state that “the proposed penalty will be based on the six
criteria set forth in 100.3(a). All findings shall be in narrative form.” Id.
The narrative findings for special assessments are typically brief and
conclusory. The lack of transparency in the Secretary's special assessment
process coupled with the Secretary's refusal to disclose the bases for
specially assessing a penalty, can frustrate attempted explanations.
However, whether the Secretary proposes a regularly or a specially assessed
penalty is of little consequence and is not binding on the Commission because
the Commission imposes civil penalties de novo.

Citation
No. 8260352

On August 8, 2011, at 3:06 p.m., MSHA Inspector
Billy Ray Meddings[4]
issued Citation No. 8260352 to Rockhouse Energy’s Mine #1, alleging a violation
of 30 C.F.R. § 75.202(a) pursuant to Section 104(a)[5]
of the Mine Act. The regulation requires that “[t]he roof, face and ribs of
areas where persons work or travel shall be supported or otherwise controlled
to protect persons from hazards related to falls of the roof, face or ribs and
coal or rock bursts.” 30 C.F.R. § 75.202(a). Section 75.202(a) is a mandatory
safety standard. The citation alleges:

The roof, face and ribs of areas where
persons work or travel is [sic.] not being supported or otherwise
controlled to protect persons from hazards related to fall of the roof, face or
ribs on active 010-0 MMU ( #3 Section) Starting two X-cut out-by Survey Spad #
30396 and extending to the working face including all six entries, loose ribs
and over hanging brows exist at several locations in the affected area. This
section produced coal two shifts per day and average of five days a week. A
non-fatal accident involving a roof bolter operator also occurred today on this
section from falling rib. This condition exposes miners working on this section
to hazards associated with fall of roof and rib.

Ex.
S-1.

The Violation

The citation alleges reasonably likely
injury that could be expected to result in lost workdays or restricted duty,
the violation was significant and substantial, one person could be affected,
and the operator’s negligence was moderate. Id. Meddings initially
alleged moderate negligence but later amended the citation to allege high
negligence. (Tr. 54:14-18; Ex. S-1) Respondent does not contest the gravity of
the violation or its S&S designation, however it takes issue with the
negligence designation and the special assessment penalty. (Tr. 11:16-21; Tr. 54:8-12)
It can be inferred by this that it also does not contest the fact of the violation.

According to FMSHRC’s Procedural Rule
69(a), a judge’s “decision shall […] include all findings of fact and
conclusions of law, and the reasons or bases for them, on all the material
issues of fact, law or discretion presented by the record […]” 29 C.F.R.
§ 2700.69 (emphasis added). Additionally, the Commission has made clear that
“[a] judge must analyze and weigh the relevant testimony of record, make
appropriate findings, and explain the reasons for his decision.” Broken
Hill Mining Co., 19 FMSHRC 477, 478 (Mar. 1997) (citing Mid-Continent
Resources, Inc., 16 FMSHRC 1218, 1222 (June 1994)); see
also L & J Energy Co., 18 FMSHRC 118 (Feb. 1996). Therefore,
despite the fact that Respondent does not contest certain aspects of the citation,
my decision is based on my review of the record and is not limited to what the
Respondent conceded at trial. Notwithstanding, substantial record evidence
supports the conclusion that there was no operator negligence, and that the
S&S designation is not warranted.

There
is case law specific to Section 75.202(a) violations regarding liability. In
Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1277 (Dec. 1998), the Commission
held that:

The 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 protective purpose of the standard, would have provided in order to meet
the protection intended by the standard.

(citing
Canon Coal Co., 9 FMSHRC 667, 668 (Apr. 1987))[6]

Meddings was at the mine to conduct a
quarterly E01 inspection. (Tr. 22:16-23) During his inspection, he was informed
by mine foreman John Stanley that an accident had occurred in a different
section of the mine, Section 2 in the Number 10 unit. (Tr. 23:10-14; Tr.
23:17-21; Tr. 28:8-9) Meddings went to the accident site, 30 to 40 minutes away.
(Id.; Tr. 25:1-3) Another MSHA Inspector, Darrell Hurley[7],
arrived at the mine later that morning, August 8, 2011, to investigate the rib
roll accident at issue here. (Tr. 119:2-7; Tr. 125:17-21)[8]

When Meddings arrived at the accident
scene, he was informed that a roof bolter, William Maynard, had been struck by
rocks from a rib roll as he was spot bolting Section 2. (Tr. 25:16-22; Tr.
35:5-12; Tr. 127:9-15) Two rocks fell on Maynard; one struck him the face,
resulting in lacerations, the second fell on top of him, pinning him down until
two miners lifted the rock off him. (Tr. 31:17 −32:12; Tr. 119:19-25)[9]
While these background facts shed light on the events that occurred on August
8, 2011, and why Meddings was in the area in question, Meddings testified multiple
times that the citations were not issued merely because the accident occurred.
(Tr. 86:3-10; Tr. 90:20-21)

The area in question had been idle for approximately
two to three years. The operator had been rehabilitating the area for
approximately three weeks prior to August 8, 2011, in preparation for resumed
production, by cleaning, scooping, and spot bolting. (Tr. 36:3-12; Tr. 37:6-13;
Tr. 121:2-6; Tr. 164:20 – 165:11; Tr. 207:9-18) Meddings testified that if an
area of the mine is left unattended, under normal wear and tear and due to
weather conditions, the roof and ribs deteriorate, and some sections may fall.
(Tr. 36:17 − 37:3) Hurley also believed the alleged violative conditions were
caused by weathering and the amount of time that this area had not been mined. (Tr.
132:16-21)

The Secretary’s position is based on Meddings’
testimony that he observed poor conditions in the area, including areas where
the rib material and brows (overhangs) were loose. (Tr. 40:3-9; Tr. 53:19-22) He
claimed he inspected rib areas in Sections 2, 5, 6, and 7, and found sections
of loose or fallen material ranging in thickness from one to 19 inches. (Tr. 46:5-9)
Meddings issued Citation No. 8260352 for violating Section 75.202(a) for those
loose rib area and brows. (Tr. 53:6-14)

According to Hurley, the violating conditions
were obvious, such that a casual observer would recognize the rib issues, and
extended through two crosscuts comprising approximately six to eight entries.
(Tr. 143:18 – 144:2; Tr. 131:1-6)

Meddings’, and to a certain extent
Hurley’s, testimony is undercut by the evidence presented by Respondent’s
witnesses.

Jonah Puckett[10]
testified that at the time of the accident he had not drawn up a cut plan to
begin mining coal, which was his responsibility. Production mining was not to
start until the rehabilitated Sections had been checked for hazards. (Tr. 207:23
– 208:4; Tr. 215:9-19) That morning, Puckett brought his crew down to the sections
to check for hazards and to address any they found before production was to
begin. (Tr. 209:4 – 210:10) During this process, Puckett saw a wide corner and
told a roof bolter to spot bolt it. (Tr. 210:11-14) He did not notice any loose
rib material in the area, but he did pull down a small amount of draw rock from
the roof. (Tr. 216:5 – 217:5)

David Scott[11] was in charge of
rehabilitating Sections 1-7 and testified that as part of the rehabilitation
process his crew pulled down loose rib material and spot bolted the surrounding
area. (Tr. 166:8-16; Tr. 167:15 – 168:4; Tr. 207:9-18) On the morning of the
accident, Maynard was setting up a roof bolter to continue rehabilitating the
area by adding more roof support. (Tr. 128:3-6) Scott testified that in Section
3, the roof and ribs had some sloughage, but he did not see any hazards. (Tr. 169:20
− 170:4).

Day shift mine foreman Ricky Mays[12]
testified that before the accident, he had been to Section 3 to help John
Stanley, the mine foreman. According to Mays, it looked “pretty good” and only
needed spot bolting. (Tr. 224:22 – 225:20) Mays did not think the rib
conditions were bad; there was only some scaling. (Tr. 228:14-25)

Mine superintendent Jonah Varney[13]
testified that the ribs and roof were intact but just looked flaky. He did not
believe it posed a hazard of injury to a miner. (Tr. 248:4-17)

Additionally and importantly, Terry
Coleman,[14]
a Kentucky mine examiner and unaffiliated witness, was in the area near the section
where the accident occurred. Coleman had inspected Section Nos. 1, 2, 3, 4, and
5 before the accident occurred. (Tr. 99:11-14; Tr. 101:7-10; Tr. 181:24 –
182:5) He did not recall noticing any roof or rib problems that would rise to
the level of a citable hazard, and at the time of his inspection, he did not
issue any citations for the area. (Tr. 186:3-18)

My evaluation of the record evidence
relating to this citation derives from a thorough weighing of the evidence,
some of which is in conflict on key points. In particular, I find that
Meddings’ testimony about and documentation of areas of loose ribs and hanging
brows is substantially contradicted and undercut by the testimony of the other
persons who were in the area prior to the accident and who were tasked with the
same responsibility to look for and document any hazardous conditions. I am
also convinced that Meddings felt obligated to write a citation that matched
the seriousness of the incident, even though there was objectively no way to
anticipate or prevent it and the resulting injury. Starting from a desire to
justify what he felt was an appropriate response to the event, Meddings
documented conditions that were not evident to equally competent and neutral pre-incident
observers. Starting with a predetermined degree of seriousness in mind makes it
tempting to find “evidence” to support the desired outcome. I am sure it seemed
inadequate to write a simple “technical” violation of the roof control plan
based on the mere fact that the incident occurred (strict liability) and equally
appropriate to reach for facts that would justify a penalty commensurate with
the seriousness of the accident. However, that is what happened in my view.

I find that the violative conditions that
Meddings and Hurley testified about were exaggerated. This finding is due in
large part to the testimony of the third party witness Coleman, who was present
on and near the section before and after the accident, who did not believe
there was any hazard requiring the issuance of a citation. I also find that a reasonably
prudent person, familiar with the mining industry and protective purpose of the
standard, would not have found a violation of the standard here. Therefore,
because the Respondent conceded the violation, and because of the strict
liability nature of the Mine Act, I find that there was a violation of Section
75.202(a).

Negligence

Meddings assessed the violation at high
negligence because of the numerous locations where he claimed to find loose rib
material, his belief that the section was active, and the fact that a preshift
examination was performed in the area. (Tr. 54:19 − 55:5; Tr. 56:1-7) Meddings
did not note any mitigating circumstances, nor did he mention that mine
management had claimed any. (Tr. 64:19-23).

At the trial, counsel for the Secretary stressed
repeatedly that the area where the incident occurred was in production and active.
Whether the section was active is immaterial to my conclusions here. In an
earlier iteration, Section 75.202(a) limited its coverage to “active” areas in
a mine, i.e. “active underground roadways, travelways and working places,”
Safety Standards for Roof, Face and Rib Support, 53 Fed. Reg. 2354-01, 2355. Section
75.202(a) was amended to broaden its protective scope to include areas where
“persons work or travel.” 30 C.F.R. § 75.202(a). Therefore, whether the section
was “active” is of no importance here.

Scott testified that during
rehabilitation, he was looking for hazards and directed his crew to fix any
problem areas. (Tr. 169:10-19) On August 8, 2011, Scott traveled through the
section where the accident occurred and did not observe any dangers or hazards.
(Tr. 170:17-22) Additionally, in the preshift examination conducted by Ralph
Lockard[15]
the morning of the accident, loose rib material in the Number 3 Section and
draw rock in the Number 5 Section were pulled, indicating that the mine was
actively looking for hazardous roof and rib conditions in the rehabilitated
area. (Tr. 82:23 − 83:2; Tr. 84:13-23; Tr. 107:11-13; Ex. S-3). In addition to
Lockard pulling loose rib material and draw rock, Scott instructed miners to
spot bolt, and Puckett instructed miners to spot bolt and pull draw rock, all
on the day in question and before the citation was issued.

As a Kentucky mine examiner, Coleman is
tasked to look for rib and roof issues during an imminent danger inspection. (Tr.
185:6-10) If he sees a violation, like MSHA inspectors, he must issue a citation.
(Tr. 188:24 – 189:13) Coleman testified that while he did find a small area
where there was some loose rib material, he did not believe the area was
hazardous and did not issue a citation. Because the sections had been inspected
by Coleman, and no hazards were found, the Respondent is not expected to know that
there was a hazard. Additionally, as discussed further below, there was an
adequate preshift examination performed on the section. Thus, I conclude that
the Secretary failed to prove by a preponderance of the evidence that
Respondent was highly negligent.

Low negligence is when “[t]he operator
knew or should have known of the violative condition or practice, but there are
considerable mitigating circumstances.” 30 C.F.R. § 100.3(d). No
negligence is when “[t]he operator exercised diligence and could not have known
of the violative condition or practice.” Id. The nature of the violation
was exaggerated by the Secretary, its scope was limited based on Coleman’s
testimony, and Meddings’ testimony was not credible regarding the extent of the
violation. It is clear that the citation was written in response to the fact
that a serious rib roll incident happened and not because of an identifiable hazard
in the rehabilitated area of the mine. Respondent was actively rehabilitating
the section and had been pulling loose ribs and roof material during the preceding
three weeks of rehabilitation, during the preshift examination on the morning
of August 8, 2011, and before production began on the section on August 8, 2011.
Indeed, the mine decided to forego immediate production in the interest of
safety. (Tr. 209:4 – 210:10; 210:11-14; 216:5 – 217:5) I cannot find that the
operator knew or should have known that a violating condition existed. There
were also considerable mitigating circumstances. The operator exercised reasonable
diligence in assuring the rehabilitated area was safe for its employees. I
conclude that the Respondent was not negligent.

Gravity

The gravity analysis focuses on factors
such as the likelihood of an injury, the severity of an injury, and the number
of miners potentially injured. Meddings testified that he marked the citation
as lost work days or restricted duties because the miner in the accident was
injured. (Tr. 57:21 − 58:3) He further stated that, at a minimum, a miner would
suffer lost workdays or restricted duty from a rib roll. He was aware of miners
sustaining injuries such as broken ankles or ribs, even permanently disabling
injuries, from rib rolls. (Tr. 58:7- 59:1) The citation also alleged that one
person would be affected. (Ex. S-1) I find and concur that an injury from a rib
roll is serious in nature and could result in lost work days or restricted
duty.

Significant and Substantial

There was a violation of a mandatory
safety standard. There is a reasonable likelihood that an injury of a
reasonably serious nature, i.e. broken bones, could result from such a
violation. The rib conditions here did not contribute to a discrete measure of
danger of injury to a miner that the operator could have foreseen. This alone
prevents this violation from being S&S. In addition, the evidence did not
establish a reasonable likelihood that the conditions observed by Meddings would
result in an injury. The violation was not S&S.

Penalty

The Secretary specially assessed the
penalty for Citation No. 8260352 at $42,000.00. Mine #1 produced 605,866 tons
of coal in 2010, 598,636 tons of coal in 2011, and 283,483 tons of coal in 2012.
Rockhouse’s business would not be significantly affected even if the full
special assessment were imposed. Meddings recommended that the citation be
specially assessed “to protect the miner.” (Tr. 66:3-6) Hurley testified that from
June 1, 2011, through August 7, 2011, Rockhouse received only one 75.202(a)
citation. (Tr. 148:24 – 150:2; Ex. R-3) Rockhouse was not negligent. According
to the parties’ stipulations, Rockhouse demonstrated good faith in abatement of
the violative condition. The violation is not S&S.

The Secretary failed to prove the
magnitude of the gravity necessary to sustain a special assessment. Operator
negligence was neither gross nor extreme. There were no unique or aggravating
circumstances to warrant a higher or “special” penalty assessment. I assess a
penalty of $100.00.

Citation
No. 8260354

On August 9, 2011,[16]
at 10:45a.m., Inspector Meddings issued Citation No. 8260354, alleging a
violation of 30 C.F.R. § 75.360(a)(1) pursuant to Section 104(a) of the Mine
Act. The regulation requires that “[e]xcept as provided in paragraph (a)(2) of
this section, a certified person designated by the operator must make a
preshift examination within 3 hours preceding the beginning of any 8–hour
interval during which any person is scheduled to work or travel underground
[…]” 30 C.F.R. § 75.360(a)(1). Section 75.360(a)(1) regulates a mandatory
safety standard. The citation alleges:

The operator failed to conduct an
adequate exam of the active 010-0 MMU (# 3 Section) on 08/08/2011. Several loose
ribs and brows exist starting 2 X-cuts outby survey spad #30396 and extending
to the work faces, including all 6 entries. The foreman’s date, time and
initials are in the area showing preshift was conducted between 05:00 to 05:38.
This mine produces coal two shifts per day and average of five days per week. A
non-fatal accident also occurred on this MMU on 08/08/2011 involving a roof
bolter operator being stuck [sic.] by rib roll in the preshifted area.
In order to abate this citation the operator must conduct and record additional
training for all examiners at this operation on hazard recognition and proper
steps when hazards are observed. The operator must start this training
immediately with each on-coming shift examiners until all three shifts have
been trained.

Ex.
S-2.

The Violation

The citation alleges that injury was reasonably
likely; the injury could reasonably be expected to result in lost workdays or
restricted duty; the violation was significant and substantial; nine persons
could be affected; and the violation resulted from high negligence. Id. 
Meddings cited the Respondent under Section 75.360(a)(1), which requires
operators to conduct a preshift exam mine three hours before a shift begins in
working and travel areas of the mine. (Tr. 67:22 – 68:9) Meddings issued
Citation No. 8260354 for an inadequate preshift examination because of the
loose ribs and brows present in the violative area. (Tr. 67:4-13)

To establish a Section 75.360(a)(1)
violation, the Secretary must prove that violating conditions existed at the
time of the pre-shift examination and were obvious. CONSOL Penn. Coal. Co.,
32 FMSHRC 545, 552 (May 2010)(ALJ Bulluck). A violation exists where “a
reasonably prudent person, familiar with the mining industry and the protective
purpose of the standard, would have recognized that hazardous condition that
the standard seeks to prevent.” Canon Coal Co., 9 FMSHRC at 668.

Lockard conducted a preshift examination
between 5:00 and 5:38 a.m. on August 8, 2011. (Tr. 84:8-12; Tr. 144:3-5; Ex.
S-2) Meddings reviewed the preshift paperwork which had been completed three
hours prior to start of the shift. No hazards were noted in the preshift exam
records. (Tr. 57:13-18; Tr. 67:4-19; Tr. 68:3-4; Tr. 70:8-11; Tr. 74:1-5)[17]
Meddings concluded that the miners were exposed to loose ribs and brows which
were not corrected, and that the oncoming foreman was not notified of the alleged
hazards. (Tr. 70:25 – 71:6)

The weight of the evidence does not
support this version.  Meddings’ own contemporary notes, his own testimony, and
the testimony of other witnesses at the hearing contradict this. In his notes
taken on August 9, 2011, Meddings wrote: “[a]lso, preshift conducted on 8/8/11
between 5 a.m. and 5:38 a.m. Shows loose rib in Number 3 and draw rock in
Number 5. Loose rib and draw rock was pulled.” (Tr. 82:23 − 83:2; Ex. S-3). Meddings
noted and testified on cross examination that Lockard noticed a loose rib in Section
3 and addressed the situation by pulling it down. (Tr. 84:13-18; Tr. 107:11-13).
Meddings also stated that Lockard had mentioned draw rock in Section 5 in his
exam notes, which was pulled down. (Tr. 84:19-23) Lockard confirmed this. He
saw some loose rib material in the Number 3 and 5 entries and used a slat bar to
pull it down to make the area safe. (Tr. 197:21 – 198:2)

Meddings testified that based upon his
25 years of mining experience, the violating conditions existed at the time of
the preshift examination and it would take more than few minutes, a few hours,
or even an entire shift for the amount of loose rib and brow material that was
present to occur. (Tr. 68:10 – 69:7; Tr. 79: 16-25; Tr. 109:11-19) Hurley also
believed that the conditions cited across the sections occurred over a longer period
of time. (Tr. 144:6-12) The categorical nature of these statements is contrary
to Meddings’ testimony that, in his experience, he had seen a rib roll occur in
an area that had appeared fine, but burst seconds later. He testified of other
instances where rib and roof conditions had changed in seconds. (Tr. 78:18-25;
Tr. 92:20-22) Hurley also agreed that poor rib conditions could develop
instantly. (Tr. 156:20-23) Also, Meddings did not testify at a prior deposition
nor did he put in his notes that these conditions existed for several shifts.
(Tr. 81:2-6)

Most importantly, Meddings did not inspect
the sections until almost 10 hours after the preshift examination had occurred
and hours after the accident happened. (Tr. 77:13-18; Tr. 92:11-19) Casting
further doubt on his testimony, Meddings testified that the area in question
had been rock dusted, but that he did not recall if there was rock dust in the
cracks. (Tr. 98:4-10) Hurley’s notes confirm this, and indicate that the area
was clean and well rock dusted. (Tr. 161:2-4) The testimony and contemporaneous
records indicate that whatever issues Meddings claimed to have with the ribs
and roofs, occurred after the area was rock dusted, and presumably after the
preshift examination was done.[18]

Lockard testified that when he performs
a preshift examination, he looks at the ventilation and air flow, checks for methane
accumulations, spillage, curtain issues, loose ribs, and draw rock -- anything
that could hurt miners. (Tr. 195:21 – 196:3) He takes his job seriously and
would not want to expose any of the miners to potential harm. (Tr. 196:8-17) Lockard
testified that when he saw the two rib issues mentioned in his preshift records
he addressed them right away. He did not think he left any hazardous conditions
behind. (Tr. 198:11 – 199:21)

Additionally, Coleman was present near
the section when the accident occurred and had inspected entries Number 1, 2,
3, 4, and 5 before the accident occurred. At the time of his inspection,
Coleman did not recall there being any roof or rib problems, other than a small
section between Sections 1 and 2. He did not issue a citation because the area
was small and he did not believe it to be hazardous. (Tr. 185:11-20; 185:22 –
186:2) This, coupled with the fact that Lockard had pulled loose ribs and draw
rock during his preshift and did not believe he left any hazards behind, evidences
the adequacy of the preshift examination.

The Secretary did not prove that the alleged
conditions were present at the time of the preshift examination, nor did the
Secretary prove that the condition was obvious. A reasonably prudent person,
familiar with the mining industry and the protective purpose of the standard,
would not have considered the small section of loose rib in between Sections 1
and 2 a hazard warranting protection under this standard. The Secretary failed
to prove that the Respondent violated Section 75.360(a)(1). Thus, I vacate
Citation No. 8260354.

WHEREFORE, it is ORDERED
that Rockhouse pay a penalty of $100.00 within thirty (30) days of the filing
of this decision.

It is further ORDERED that
Citation No. 8260354 be VACATED.

/s/ L. Zane Gill

L. Zane Gill

Administrative
Law Judge

Distribution:

Brian
Mauk, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church
Street, Suite 230, Nashville, TN 37219-2440

Jeffrey
K. Phillips, Esq., Steptoe & Johnson, PLLC, One Paragon Centre, 2525
Harrodsburg Road, Suite 300, Lexington, KY 40504

[1] “If, upon
inspection or investigation, the Secretary or his authorized representative
believes that an operator of a coal or other mine subject to this
chapter has violated this chapter, or any mandatory health or safety
standard, rule, order, or regulation promulgated pursuant to this chapter, he
shall, with reasonable promptness, issue a citation to the operator.” 30
U.S.C.A. § 814(a) (emphasis added). This Court has held that “[t]he Mine Act is
a strict liability statute, and an operator is liable for a violation of a
mandatory safety standard regardless of its level of fault.” Brody Mining,
LLC, 33 FMSHRC 1329, 1335 (May 2011) (ALJ Gill) (citing Spartan Mining
Co., 30 FMSHRC 699, 706 (Aug. 2008); Asarco, Inc., 8 FMSHRC 1632,
1634-36 (Nov. 1986), aff'd, 868 F.2d 1195 (10th Cir. 1989)). In
Asarco, the Commission concluded that “the operator's fault or lack
thereof, rather than being a determinant of liability, is a factor to be
considered in assessing a civil penalty.” 8 FMSHRC 1632 at 1636.

[2] The logic of
this is borne out by reference to the standard citation form used by MSHA, MSHA
form 7000-3. Section 11 of that form lists an option for those circumstance
when there is no negligence underlying the issuance of the citation. (See
Ex. S-1)

[3] In 2007, the
Secretary substantially amended the penalty regulations, significantly
increasing penalties for most violations, eliminating the single penalty
assessment, and deleting language from section 105(a) that specified eight
categories of violations that would be reviewed to determine whether a special
assessment is appropriate including, violations involving an extraordinarily
high degree of negligence or gravity, or other unique aggravating
circumstances. 72 Fed. Reg. at 13,621.

[4] At the time of
the trial, Meddings had worked for MSHA as a coal mine inspector for
approximately six years. (Tr. 17:5-12) Meddings had the initial 20 week
training in 2008. He has received investigation training, and refresher
training. (Tr. 17:18 – 18:9) Meddings was in the coal industry for 25 years
before joining MSHA, (Tr. 18:16-25) had worked exclusively in underground coal
mines his entire career, and was a foreman for 20 of those 25 years. (Tr.
19:1-22)

[5] All citations
are 104(a) citations, and therefore, no analysis is necessary to determine if unwarrantable
failures existed.

[6] I am aware of
the recent Commission decision, Jim Walter Resources, Se 2007-203-R and
SE 2007-0294 (Mar. 31, 2015), however, this decision is not relevant to the
case and facts now before me.

[7] At the time of
the hearing, Hurley had worked at MSHA since 1999 and had been a roof control
specialist since 2002. (Tr. 115:25 − 116:7) Part of Hurley’s duties as a roof
control specialist is to investigate roof falls and roof accidents. (Tr.
119:11-14) Hurley had additional roof control specialist training in addition
to his regular mine inspection training, and yearly refreshers for both. (Tr.
116:12-24) Before joining MSHA, Hurley spent 29 years working in underground
coal mines, the majority of which was spent in Kentucky, and he worked as a
foreman or a supervisor for 23 of those years. (Tr. 117:5-12; Tr. 118:1-4)

[8] Hurley and
James Tackett, a Commonwealth of Kentucky mine inspector, traveled underground
together to investigate the accident site. (Tr. 120:12-14)

[9] Meddings drew a
picture of the rock and measured its size. He testified that the rock measured
4-12 inches thick and ranged from 11-36 inches in height. (Tr. 29:17-23; Ex.
S-3)

[10] At the time of
the hearing, Puckett was a section boss at Process Energy for Alpha Natural
Resources. ( Tr. 205:19-20) Additionally, at the time of the hearing, Pucket
had been in the coal industry for 10 years. (Tr. 205:21-22) Puckett received
his foreman's certification in 2006. (Tr. 206:1-3) On August 8, 2011, Puckett
was the section foreman at Mine #1. (Tr. 206: 15-18)

[11] At the time of
the accident, Scott was employed at Rockhouse Energy Mining, but is currently
employed by Process Energy. (Tr. 163:24 − 164:3) At the time of the hearing, Scott
had been mining since November, 1998, and was a certified mine foreman and an
underground EMT. (Tr.164:4-8). In August, 2011, Scott was the general mine
foreman for the second shift. (Tr. 164:12-14)

[12] At the time of
the hearing, Mays had been in the mining industry for 23 years and was working
at Process Energy Sydney Coal plant. (Tr. 221:7-14) Mays got his foreman
certification in 1998 and had been bossing since then. (Tr. 221:22 – 222:3) At
the time of the accident, Mays was employed by Rockhouse Energy Mining as mine
foreman for the day shift. (Tr. 221:18-21; Tr. 239:13-14)

[13] At the time of
the hearing, Varney had been in the mine industry for 25 years and obtained his
foreman certification in 1993. (Tr. 241:12-18). At the time of the issuance of
the citation, Varney was the mine superintendent. (Tr. 242:12-14).

[14] At the time of
the hearing, Coleman had been working for the Office of Mine Safety and
Licensing for Kentucky as an underground safety analyst for five years. (Tr. 179:7
– 108:1) Coleman had been in the coal industry for 37 years. Id. Coleman
testified that as a safety analyst, he observed employees through a cycle of
their work and made corrective suggestions if he saw anything wrong, or if
there was poor job performance. (Tr. 181:3-10)

[15]At the time of
the hearing, Lockard worked for Process Energy and was no longer employed by
Rockhouse Energy. (Tr. 194:8-10) Lockard had been in the mining industry since 1993.
(Tr. 194:11-14) Lockard received his foreman certification in 2007. (Tr. 194:15-23)
Lockard testified that he began performing preshift examinations in 2007 and
was trained by his mentor, the previous foreman. (Tr. 194:24 − 195:7)

[16] The citation
was issued the day after the alleged violating condition occurred. (Tr. 72:10-15)
Meddings testified that he did not review the preshift examination books before
he left the accident site, but reviewed them the next day when he returned to
the mine. (Tr. 73:11-16)

[17] If the preshift
examiner had noticed hazardous conditions, Meddings testified he could have closed
the area off with signs to make sure no one traveled the area, and corrected
the conditions. (Tr. 71:7-12) This, however, is unconvincing because of
Medding’s testimony on cross examination and his own notes taken on August 9,
2011, which are discussed in more detail below.

[18] It must be
noted that the Secretary in his brief points out that because the roof was spot
bolted during the shift, this is evidence of an inadequate preshift
examination. (Resp. Br. at 11) However, the Respondent was cited for loose ribs
and brows, not inadequate roof support, i.e. inadequate roof bolting. (Ex. S-2)